Hertz & Anor & Picot

FAMILY COURT OF AUSTRALIA

HERTZ AND ANOR & PICOT

[2011] FamCA 210

FAMILY LAW - CHILDREN – these proceedings involve two applicant fathers – the mother has a child/children with each of the applicant fathers

FAMILY LAW - CHILDREN – Parental responsibility – where the mother previously relocated the children to another town without informing the fathers of the children’s whereabouts – the mother failed to consider the disruption caused by the relocation to the children’s lives – where one of the children suffers from delayed intellectual development as a result of brain injury – the second applicant father and the mother were distressed by the brain injury – the second applicant father and the mother have poor communication and trust – where the first applicant father suffered past alcohol dependence – the first applicant father has taken steps to manage his alcohol dependence – the first applicant father has support from the paternal family – Presumption of equal shared parental responsibility applies – parties agree

FAMILY LAW - CHILDREN – Relocation – mother’s application to relocate – subsequent withdrawal of that application

FAMILY LAW - CHILDREN – With whom the child of the first applicant father shall live and spend time – the mother is the primary carer of this child – first applicant father and second applicant father enjoy a good relationship – siblings should maximise time with one another – both applicants willing to facilitate all of the children’s time with one another – child shall spend staged program of time with the father leading up to equal time

FAMILY LAW - CHILDREN – With whom the children of the second applicant father shall live and spend time – both children in secondary school – equal time is disruptive to their education – the children shall live with the mother – spend substantial and significant time with the father

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA,

FIRST APPLICANT:	Mr Hertz
SECOND APPLICANT:	Mr Picot

RESPONDENT:

Ms Picot

INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

FILE NUMBER:

NCC

1885

2008

DATE DELIVERED:

31 March 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

8, 9, 10 and 11 November 2010 and 3 December 2010

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT:

Mr M Gilbert

SOLICITOR FOR THE FIRST APPLICANT:

Bridge Street Lawyers

COUNSEL FOR THE SECOND APPLICANT:

Mr T Bates

SOLICITOR FOR THE SECOND

APPLICANT:

Michel & White

COUNSEL FOR THE RESPONDENT:

Mr M Weightman

SOLICITOR FOR THE RESPONDENT:

Bell & Johnson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

Orders

That all previous parenting orders relating to L born … April 1997, R born … February 1999, together referred to as “the boys”, and C born … May 2007, collectively referred to as “the children” be and are hereby discharged.
That Mr Picot and Ms Picot have equal shared parental responsibility for L and R.
That Mr Hertz and Ms Picot have equal shared parental responsibility for C.
That the children live with the mother at all times other than when they are living with or spending time with their respective fathers in accordance with these orders.

L and R

That L and R live with their father Mr Picot as follows:
5.1during school terms, each alternate weekend from the conclusion of school on Thursday until 6.30 pm Sunday;
5.2for half of all school holidays, being the first half in even numbered years and the second half in odd numbered years;
5.3on the weekend of Father’s Day from 6.00 pm Saturday to 6.30 pm Sunday whether or not the boys would ordinarily be spending time with their father on that weekend;
5.4at such other and/or additional times as may be agreed between the parties in consultation with L and/or R.
If in accordance with Order 5.1 above L and R would ordinarily be spending time with the father during the Mother’s Day weekend, the father’s time with the boys is suspended on the Mother’s Day weekend from 6.00 pm on Saturday for the balance of that weekend period.
If in accordance with Order 5 above L and R would ordinarily be spending time with the father on the mother’s birthday, the father’s time with the boys is suspended between 3.00 pm and 7.00 pm on the mother’s birthday, and the boys shall spend time with their mother.
If in accordance with these Orders the boys would ordinarily be spending time with the mother on the father’s birthday, the mother’s time with the boys is suspended between 3.00 pm and 7.00 pm on the father’s birthday, and the boys shall spend time with their father.
L and R’s time with each parent is suspended from 2.00 pm Christmas Eve until 2.00 pm Boxing Day each year during which times L and R will spend time with each parent as follows:
9.1with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years; and
9.2with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in odd numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in even numbered years.
For the purpose of implementing the time the boys spend with each parent, where such time does not coincide with the commencement or conclusion of school, the father shall collect the boys from the residence of the mother at the commencement of the time the boys live or spend time with him, and the mother shall collect the boys from the residence of the father at the commencement of the time the boys live with her.

That C live with her father Mr Hertz as follows:
10.1Commencing forthwith and until the child attains four years of age (… May 2011), each Tuesday and Thursday from 9.00 am to 5.00 pm and on each weekend from 9.00 am Saturday to 5.00 pm Sunday; and
10.2Thereafter, for a period of four months:
10.2.1from 9.00 am to 5.00 pm each Tuesday; and
10.2.2from 9.00 am Thursday to 9.00 am Friday each week; and
10.2.3on each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday; and
10.3thereafter, until the child attains 5 years of age or commences formal schooling (whichever is the earlier):
10.3.1from 9.00 am to 5.00 pm each Tuesday; and
10.3.2from 9.00 am Thursday to 5.00 pm Sunday each alternate weekend;
10.4from the age of five years or commencement of formal schooling (whichever is the earlier):
10.4.1from after school Tuesday to before school Wednesday each week; and
10.4.2from after school Thursday to 6.30 pm Sunday each alternate weekend;
10.4.3for half of each term holiday and half of each Christmas school holiday period with the first such Christmas holiday period to be in alternating periods as agreed between the parties of no more than 10 days at a time; and
10.5from the commencement of the school year in which the child turns eight years of age (2015):
10.5.1from the conclusion of school on Monday until commencement of school the following Monday and alternating through each school term;
10.5.2for half of all school holiday periods being the first half in even numbered years and the second half in odd numbered years;
10.5.3on the Father’s Day weekend from 6.00 pm Saturday to 6.30 pm Sunday whether or not the child is ordinarily spending time with the father on that weekend; and
10.5.4at such other and/or additional times as may be agreed between the parties in writing.
If in accordance with Order 10 above C would ordinarily be spending time with the father on Mother’s Day, the father’s time with C is suspended on the Mother’s Day weekend from 6.00 pm Saturday for the balance of that weekend period.
If in accordance with Order 10 above C would ordinarily be spending time with the father on the mother’s birthday, the father’s time with C is suspended between 3.00 pm and 7.00 pm on the mother’s birthday, and C will spend with her mother.
If in accordance with these orders C would ordinarily be spending time with the mother on the father’s birthday, the mother’s time with C is suspended between 3.00 pm and 7.00 pm on the father’s birthday, and C will spend with her father.
C’s time with each parent is suspended from 2.00 pm Christmas Eve until 2.00 pm Boxing Day each year during which times C will spend time with each parent as follows:
14.1with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years; and
14.2with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in odd numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in even numbered years.
For the purpose of implementing the time C spends with each parent, where such time does not coincide with the commencement or conclusion of school, the father shall collect C from the residence of the mother at the commencement of the time C lives or spends time with him and the mother shall collect C from the residence of the father at the commencement of the time C lives with her.

The children

The parties shall have liberal telephone contact with the children when they are with the other parent.
Each parent shall notify the other parent of any medical emergency, illness or injury suffered by any of the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
The parents will permit the school at which each of the children attend to provide reports, notices and applications for school photographs to each other parent at his or her expense and authorise the school to communicate directly with the respective parent.
Each party is restrained from denigrating any other party in the presence or hearing of any of the children and from permitting the child or children to remain in the presence or hearing of any other person denigrating a party.
The parties shall keep each other advised of their current residential address, email, landline and mobile telephone numbers.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

THE COURT NOTES:

That the parties have agreed the mother and children may attend a wedding in Queensland in 2011 at a date and time to be advised, provided that dates, times and venue are advised in advance and these Orders will be suspended during that period.
The Orders are intended to operate so that the boys are living with or spending time with their father at times when C is living with or spending time with her father to the fullest extent that is possible, given the variation in their orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1885 of 2008

Mr Hertz

First Applicant

And

Mr Picot

Second Applicant

And

Ms Picot

Respondent

And

THE INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders (including relocation) in relation to three children, L born in April 1997, R born in February 1999, together referred to as “the boys”, and C born in May 2007, all three children collectively referred to as “the children”.
The respondent mother, Ms Picot (the mother) is the mother of all three children. The first applicant, Mr Hertz is the father of C. The second applicant, Mr Picot is the father of the boys. At the time of hearing the children were aged 13, 11 and 3.
The proceedings were heard over four days (8–11 November 2010) to the conclusion of the evidence. There had been submissions by all parties other than the mother. Shortly before her submissions commenced the mother’s position changed and the matter no longer involved a proposal for relocation. There was then considerable discussion between the parties and the matter was stood over to 3 December 2010 for finalisation. On that day the Court was advised that the position of the mother and the Independent Children’s Lawyer had changed. Further written submissions were made on behalf of Mr Hertz. Judgment was then reserved.

History of the matter

The mother and Mr Picot were married in 1991 and separated in September 2002. Both boys lived with their mother post separation.
In March 2004 R fell from a ferris wheel and suffered a traumatic brain injury as a result. This injury has been assessed to negatively impact upon his intellectual development. The accident not only injured R, but caused intense distress which is continuing for both his parents.
In April 2004 interim orders were made at G Local Court (in northern NSW) providing for residence of the boys with the mother and progressive periods of time for the boys with their father.
By April 2004 the mother had formed a de facto relationship with Mr Hertz. She and the children lived with Mr Hertz for almost four years in D, a small township just south of G. The mother and Mr Hertz separated in December 2007 and the mother moved with the children back to G. About four months later the mother and Mr Hertz reached an agreement through mediation for C to spend time with her father for short periods on three days per week.
On 19 December 2006 the mother and Mr Picot had final orders made by consent for the arrangement of the care of L and R. The terms provided for the boys to live with their mother and spend time with Mr Picot every second weekend and in some holiday periods.
On 31 July 2008 Mr Hertz filed an application for C to spend equal time with each parent.
Approximately 12 days later, in August 2008, the mother moved without notice to Queensland with the three children, probably living with her sister, Ms M at least initially.
On 5 September 2008 Mr Picot filed an application in the Federal Magistrates Court seeking an urgent interim order for the return of the children to the G area and for orders that the children spend equal time with each parent.
On 17 September 2008 Mr Hertz filed an application in a case seeking an order to restrain the mother from permanently removing C from the G area.
On 18 September 2008 orders were made requiring the mother to return L and R to the G area.
On 29 September 2008 orders were made in the Federal Magistrates Court for substituted service on the maternal aunt, whose home was the presumed place of residence of the mother in Queensland.
On 29 October 2008 a Federal Magistrate in New South Wales authorised the issue of a warrant for the arrest of the mother. At that point neither father knew the whereabouts of the mother and children.
On 6 November 2008 a Federal Magistrate in Brisbane made provision by way of orders for the mother to file an application. She did so on 19 November 2008 by way of response to the father’s applications. The mother sought that both the proceedings initiated by Mr Hertz and the proceedings initiated by Mr Picot be transferred to the Federal Magistrates Court at Y in Queensland. There were further proceedings in relation to where the matters should be dealt with.
On 22 December 2008 Lapthorn FM made orders for the return of the children to live in G and orders for the children to spend defined time with each of their respective fathers. An Independent Children’s Lawyer was appointed. Restraining and testing orders were made in relation to Mr Hertz’s use of drugs and alcohol. Both sets of proceedings were consolidated at that time.
On 2 January 2009 the mother returned with the children to G. A Children and Parents Issues Assessment was prepared by a family consultant. The assessment focused on the need to improve communication between the mother and the two fathers and the need for Mr Hertz to address perceived problems with alcohol abuse and marijuana use.
On 6 July 2009 Mr Hertz filed an Initiating Application for equal shared parental responsibility for C and orders for regular time.
On 22 July 2009 the mother filed a parenting questionnaire in which she proposed that the children live with her in E Queensland, and that the boys spend time with their father on weekends and school holidays. The next day Mr Hertz filed a parenting questionnaire proposing that if the mother moved to Queensland C should live with him.
On 29 July 2009 the mother filed an Amended Response seeking to discharge all previous orders. The mother proposed orders that the children live with her and spend time with their respective fathers. This amended application is notable for the fact that it did not explicitly seek orders for leave to remove the children from New South Wales and establish a residence for them in Queensland. Rather the orders were framed in this way:
Shared parenting (in relation to L and R).
When the mother resides more than 300 kilometres from the father the children spend time with their father for half of the two term holiday, all of the mid term holiday, half of the Christmas school holiday, but when the mother resides less than 300 kilometres from the father, every second weekend and half school holidays.
Likewise in respect of C the mother’s proposal was when the mother resides more than 300 kilometres from the father, until the child reaches the age of three years, one weekend per month in the town of the mother’s residence; from the age of three years until the child attends school, one week per month commencing at 9.00 am Saturday until 5.00 pm the following Sunday. Once the child began attendance at school, half the two term holiday, the whole of the mid term holiday and half the Christmas school holidays in the same terms as her school age brothers.
The mother did not nominate where she would be living and referred to the meeting point for changeovers as half way between the parents’ homes. This left the two fathers to guess where the children would be and how much travel would be required to get to the half point meeting place.
Order 16 of the mother’s Amended Response was as follows:
The mother is restrained from residing any further from [G] New South Wales than [E] Queensland.
In retrospect it appears that this was the mother’s way of indicating where she was most likely to live.
Subsequently orders were made for the preparation of a Family Report, which would address as an issue “the perceived advantages and disadvantages of Ms Picot’s proposed relocation”.
The family consultant made clear recommendations as follows:
(i)     It is recommended that the children remain living in [G].
If the mother remains living in [G]:
(ii)    It is recommended that [Mr Hertz’s] proposal to increase the amount of time spent with [C] be implemented.
(iii)   It is recommended that [Mr P’s] proposal to increase the amount of time spent with [L] and [R] be implemented.
If the mother relocates to Queensland:
(iv)   It is recommended that [Mr Hertz] and [Mr Picot’s] proposals be implemented on the condition that the children spend time together every weekend and on at least one occasion during the week (e.g. by sharing a meal together).
This is a reference to the children remaining in G with their respective fathers and spending time with their mother in defined periods. The family consultant said this:
The mother’s proposal with regards to how she intends to facilitate the relationship between the children and their fathers is neither well thought out nor very convincing.
And again
The children support their mother’s plan to move to Queensland. However they are not emotionally or intellectually mature enough to consider the long term implications of the move.

I accept this assessment by Ms F. There is also another factor. The mother was asked whether she had told L and R that if they had to stay in G she would be going anyway. Her answer was: “Not sure. I could have mentioned something. I don’t remember their reaction. I don’t recall”.
On balance it seems more likely that the mother did communicate to the boys that she was determined to live in Queensland.
In these circumstances the boys would likely have been motivated to support the move through fear of separation, as well as enjoyment of life on the coast.
The family report was released on 21 June 2010.
On 15 October 2010 Mr Hertz filed a Further Amended Application where he sought orders in the alternative that if the mother moved to Queensland, C live with him and in the event the mother remained in G, the parties would have shared care of and equal time with C by the time C has completed her first year at school.
On 8 November 2010 the matter came before the Court for final hearing. Despite the lack of information and particularity in the orders sought by the mother, it was clear that it was her wish to move out of the G area.
For historical reasons as set out above, in these proceedings the mother was the respondent to the applications of the fathers. However, since the applications were effectively prompted by the mother’s unilateral departure from G in 2008, it is the view of the Court that the true applicant was the mother, who was applying to establish a residence for the children at an unknown venue outside G. On that basis and with the consent of all parties, the mother became the de facto applicant in the proceedings.
The matter was listed for four days. Throughout the hearing the mother asserted that even if the Court made orders restraining her from relocating with the children from New South Wales to Queensland, she would in any event leave G and move to Queensland herself. Unsurprisingly she was cross-examined extensively in relation to this position. The mother maintained her position until after the conclusion of all evidence and the submissions of both fathers and the Independent Children’s Lawyer. Shortly before the mother’s counsel began his submissions on behalf of the mother, there was a short adjournment after which her new position was announced. This was that she would remain in G. There were then discussions between the parties and it appeared that the matter might be resolved. An opportunity was given for the parties to consider their positions and discuss relevant orders. There was a strong suggestion that all parties had agreed on arrangements for the children. The matter was briefly adjourned to enable the parties to consider their positions.
On 3 December 2010 the matter came back before the Court. At that time the mother had again changed her position. She still intended to remain in G, but now proposed the children spend much less time with their fathers than previously indicated, particularly C. The orders proposing this new position were presented to the other parties on that day. There is no criticism of the mother’s counsel in respect of that late notice. Unfortunately, because the parties were taken by surprise by the mother’s change in position, the matter could not be concluded on 3 December 2010. All parties who wished to were given leave to make written submissions in respect of the final orders. Counsel for Mr Hertz did so.
Clearly the decision taken by the mother very late in the proceedings and after the close of evidence to remain living in G, rendered a great deal of the evidence given over the previous four days irrelevant. However, the conduct of the mother over the past two and a half years since she first left G is of significance in determining the long term best interests of the children. Accordingly, the evidence will be analysed in that light.

Evidence of the mother

The mother relied on her affidavit sworn on 2 November 2010. The information contained in it about a possible relocation was scant. It is included in full in these reasons as follows:
49:While I was recently in Queensland with the children attending to medical appointments I made further enquiries about support services for [R] close to where we would live at [E]. In all there were 5 available services and I enclose at annexure […#] copies of the literature I received from each one.
50.When the children were in Queensland they settled in well and were very happy in my view. [R] was enrolled in a specialised program at [E] Primary School. In addition the children have extensive extended family at [E] who they have close bonds with.
…
54.Both [L] and [R] tell me they very much want to relocate to Queensland. [[R] said to me ‘I want to go back there, I love it in Queensland and I have good friends there I want to be a surf lifesaver’ [L] has said similar things very often.
61.In the event that I relocated to Queensland I would sell my home in [G] and purchase a home in Queensland.
In the witness box the mother was asked about her plans to establish a life in E. The mother said she was planning to buy an apartment in E from a friend of her maternal aunt, who was allegedly holding the property for the mother until she could purchase it. When pressed about how she could afford to buy a property, the mother said that it was a “rent to buy scheme, a new scheme”. The mother also said she had spoken to the principals of H High School and E Public School, where she intended the children would be enrolled.
In relation to how the children would see their fathers, the mother said that she would be prepared to drive back to G if need be every holiday period. However, she then immediately qualified her own evidence by saying she would be prepared to drive back at least every second holiday period. In relation to C the mother said that she would travel back once per month for the weekend and hoped that Mr Hertz would travel once per month to Queensland.
This evidence, although now irrelevant given the mother’s very late change of position, supports a worrying conclusion, that conclusion being that the mother, in simply feeling determined to leave G, did so without prior consultation. She regarded the need for the children to maintain relationships, not only with their fathers but extended family, as matters of no or very little significance. Indeed, in her affidavit the mother refers to the fact that she was: “So furious about him not returning [C] that I felt I was justified in moving”. This is a reference to an incident where Mr Hertz failed to return C to the mother for three days. Undoubtedly this was the wrong thing for Mr Hertz to have done although the child came to no harm. The mother says this:
She spoke to the father on the phone. ‘I said I want her back right now’. He said ‘I will let you listen to her’. He then held the phone so I could hear the child. He then hung up. This was the last straw for me with [Mr Hertz] and it was after that event that I decided that I should move to Queensland.
Without further discussion the mother shortly after did leave for Queensland in the way earlier described. The mother conceded that, at this point, she had not thought through her plan for establishing a life in Queensland, and that there was no guarantee it would be in E despite the fact both boys were enrolled in school there. The mother’s evidence suggests that had she not returned to G she may have enrolled the boys in another school in Queensland or elsewhere. In response to the question in her parenting questionnaire, “How long have arrangements been in place (for the children to see their father)”, the mother wrote, “The father sought little contact before I left for Queensland”. The mother admitted that she had intended to convey by this answer that the father wasn’t showing much interest in the children. She further admitted that this statement was not true and that, in signing the document, she had deliberately misrepresented the position.
The mother appeared to become increasingly embarrassed during this cross-examination. I accept that she had intended to convey to the Court that Mr Picot had shown little interest in his two sons as a justification for her wish to move to Queensland. The mother said she did not intend her information in the questionnaire to be misleading. I do not accept this. The mother admitted in cross examination that she knew the statement in her parenting questionnaire to be false, but signed the document anyway. Such actions are indicative of the mother’s deliberate intention to provide misleading information. Similarly, when she was asked about Mr Picot’s knowledge of her intention to move to Queensland, there was this exchange:
Q: The only conversation you had with him was him trying to dissuade you.
A:       No.
Q:The conversation on 12 August 2008 was the first inkling of your intention to go.
A:       He knew I wanted to go.
Q:       He didn’t know you had a concrete plan to go.
A:       No.
These responses are in stark contrast with the evidence of the mother in her affidavit, at par 59: “I relocated with the full consent of [Mr Picot] ...”
Cross examination revealed another inconsistency between the mother’s affidavit evidence and her oral evidence. In her affidavit, the mother deposed that one of her reasons for getting out of G was sexual harassment by Mr Picot. She agreed that she first made that complaint in front of Lapthorn FM. The mother was confronted with her statement that Mr Picot had “grabbed and lunged at [her] genitals on 12 August 2008 in front of [L]”. The mother answered, “Yes it happened”. She then became intensely distressed, crying and repeating “it did happen.” This evidence is inconsistent with that deposed by the mother in her affidavit at par 62 where she says:
When I proposed to move to Queensland I said to [Mr Picot] ‘we need to organise a contact arrangement so you can see the kids’.
He said ‘well I plan to get up there a bit so I can see them when I come up’.
I said ‘well I am happy to get them back here if you like’.
He said ‘as long as I get what I want from you there will be no problem if not I will make it hell for you’.
My overall impression of the mother was that she was struggling to cope with her own emotions. My impression is that the mother became increasingly “fed up” with living in G and managing the relationships between the children and their fathers, that she felt over burdened and mistreated by both fathers, and that the urge to flee G became overwhelming. She then wished to present evidence which justified that flight.
There may well be substance in the mother’s complaint about the conduct of both fathers, particularly the abuse of alcohol by Mr Hertz and the sexualised conduct towards her of Mr Picot. However, the disruption for the children in terms of their relationships, their education and their own sense of their place in the community was not sufficiently taken into account by the mother when she made the decision to relocate from G. Unfortunately I am left with the impression that the mother is still strongly ambivalent about remaining in G. Her decision to remain in G at the last possible moment no doubt was a reflection of her fear of losing the fulltime residence with the children whom she undoubtedly dearly loves. Her subsequent withdrawal from the notion of shared care causes the Court to question the mother’s understanding that the needs of the children are separate from her own.
There is an unreality to the mother’s responses to questions about R’s situation. The mother agreed that R had had an occupational therapy review by Ms Q on 1 August and that the concerns arising from that review was that R was not learning or completing his home work, he had a poor attitude and needed structural routine. He was taking Ritalin at the time of assessment. A noted concern was that it was difficult for Ms Q to know what aspects of R’s issues related to brain injury and what aspects were related to the “frequent changes in school and home circumstances”. Ms Q had no opportunity to explore these issues further as eleven days after that assessment the mother took the children to Queensland.
The proposition was put to the mother that R had experienced much disruption in his life since the mother separated from Mr Picot and that this disruption was caused by having to attend three different schools, a change in houses, a change in households in that for a period of three or four years Mr Hertz was fulfilling the role of step-father to him, and a relocation to Queensland. I am not left with the impression that the mother is indifferent at all to R’s situation. Rather I got the impression that the mother believed that everything would be better for herself, and therefore also the children, once they were in Queensland. This belief underestimates the impact on the children of abrupt changes to their lives without consultation or preparation for them. This impact is likely especially felt by R who will struggle with his education and needs the best efforts of both his parents to achieve a good minimum standard before he leaves the education system. It is highly regrettable that in choosing to leave G, the mother also chose to leave the supportive services for R provided through the local area Brain Injury Program behind. Although it has been possible to reconnect him with those services, the concern is the uncertainty which the loss of supportive services has caused for R which may have discouraged him from persisting with what is difficult for him in his education.
A proposition, which could not be denied, was put to the mother. That proposition being that having moved R and the other children to Queensland without informing their fathers of any details regarding their new residence, the mother must have known that such a situation would result in a Court order being made for the children’s return to G. The mother’s great efforts in concealing her whereabouts and encouraging her sister Ms M, who gave evidence in the proceedings, not to reveal the whereabouts of the family, is clear evidence that the mother knew the children were likely to be ordered back to G. Her belief that everything would be better once she had moved to Queensland with the children was always unrealistic given her method of going.
The mother held out hope for returning to Queensland with the children until the fourth day of the hearing. If it is the case that she succumbed to fear of losing care of the children, it may well be that she has not given up her idea that everything would be better if they could simply live in Queensland. Another such episode of leaving in secrecy, whereabouts concealed from their fathers, with a disruption to all their relationships and schooling would be most detrimental for the children and would undermine their self confidence and their trust in their mother. It is essential in my view that the children’s relationships with their fathers and extended families are consolidated and they are reassured that there will be no further such disruption in their lives. R in particular needs to feel really confident that all the people who assist him with his learning and his medical care will remain constant from now on.
The mother gave evidence that she wanted to undertake training in allied health, in Queensland. It would certainly be a benefit to the mother if she had the opportunity to enter this or any other course of study in certain knowledge that the children were in the care of their fathers or other members of their extended families. The mother needs more support and assistance than she has had in the past, especially as she has to manage the needs of the two older boys, one of whom has a disability, and the very different needs of her pre-school daughter.
Unfortunately the mother appears to have been so resentful of Mr Hertz’s conduct that she became resistant to C spending time with him. There was extensive cross-examination about the mother’s failure to provide make-up time when a great many periods of contact were missed. Correspondence between the solicitors was generally dismissive on behalf of the mother in terms of compliance. In the witness box the mother said that she was concerned about Mr Hertz’s drug use and screening, although that was not reflected in the correspondence. For example, a letter dated 30 July 2010 (annexure ‘P’ to Mr Hertz’s affidavit) referred to the mother being “more than happy to discuss make-up time”. However it was conceded that make-up time never occurred. The mother then changed tack and said that C could be difficult to manage, “she’s a full on child”. If the mother is right about that and she is the one who has spent most time with the child, that is a compelling reason for C to spend more time both with her father and other members of the paternal family.
Unfortunately the Court was left with the view that the mother was inclined to comply with orders only when it was convenient for her. She applied dual standards referring to Mr Hertz’s abduction of C “for three days”, but prepared to defend her own decision to remove C from her father for six months without letting him know that she was safe. In answer to a question of how she would have felt if that had happened to her she responded: “I don’t know, devastated” and swiftly afterwards this comment, “he knew where she was”. I am satisfied that the latter comment was quickly made to improve the mother’s position, she having recognised for a moment what separation from a very young child for six months might have felt like.
A matter that was revealed during the cross-examination of the mother was that there had been civil proceedings on behalf of R for compensation arising from his accident. An award of $320,000 had been made. The mother had not advised the father of the proceedings or the amount of the award. She said she thought the father had some dealings with the firm of solicitors who represented R and that the firm “would have told him” of the compensation award. Again, the mother’s failure to inform Mr Picot about this outcome and her explanation for why she did not do so appear to reflect the view that she regarded herself as a sole parent and that there was little point in consulting with the boys’ father.
The mother was cross examined, on behalf of Mr Picot, about having access to a fund as a result of the common law compensation claim for R’s medical and care expenses. It was put to the mother that she could still manage R’s needs for special care and medical appointments even if she remained in G. The mother’s answer was most concerning: “We need to move to Queensland where we can all be happy and move on”. This is another example of the mother’s apparent view that there was a magical simplicity to improving her life by moving to Queensland, with a failure to recognise that what might be a great source of pleasure and improvement for her may not be the same for her children.
The mother was tested over her stated position that, although she believed that both fathers were incapable of taking over the fulltime care of their respective children, she would still leave them to go to Queensland alone. In some distress the mother said: “I just want to get out of this turmoil I’m in”. She shortly began an intense bout of crying, head in hands, and referred to flash backs of hearing about R’s accident in 2004. She said she had attended counselling but not recently. It may be that the mother is struggling with problems that could be addressed by an appropriately qualified therapist.
During cross-examination on behalf of the Independent Children’s Lawyer there was this exchange:
Q:       If her Honour refuses relocation the effect on [L]?
A:       Very difficult for him.
Q:       Same for [R]?
A:       Yes, if they’re unhappy you’re unhappy.
Q:What will you do if they are distressed by being separated from you?
A:       I’m not sure.
Q:       You would have to consider returning if the boys were upset?
A:       I don’t know.
Q:With [C], she hasn’t had much time to build a relationship, there’s been lots of separations.
A:       Yes.
Q: You don’t think the Court will make that order (to return to [G])?
A:       I’m hoping not.
Q:       [C] will cry, scream, have you thought about that?
A:       Haven’t really thought about it.
Q:There’s a real risk that [C] will suffer for the rest of her life if you leave her? You don’t think her father can care for her properly. Are you going to take that risk?
A:       I don’t know.

Ultimately as previously stated, the mother changed her view and decided to remain in G. She may simply have been taking a position that she would go to Queensland whether the children could go with her or not, in order to impress the Court with the strength of her desire to do so. However I am concerned that the mother may have reached a point where she felt she could not go on caring for the children in G, effectively in her view alone.
The mother has had two difficult separations from partners. On the second occasion C was only two years old. The mother has also experienced the consequences of R’s traumatic accident. She has no doubt longed for the loving assistance of her sister and extended family in Queensland. It is to be hoped that the mother seeks assistance to address the painful consequences of these past difficulties. During the time that the mother’s sister Ms M gave evidence and was cross-examined by counsel for Mr Hertz, the mother was seated in the back of the court room, she was making small constant movements, her head down and eyes closed. She was certainly not trying to draw attention to herself. She was a picture of distress.
It would be most unfortunate for the children if the mother again felt trapped and unsupported in G. There would be adverse consequences for the children. It is a matter for the mother to seek out assistance for herself if she considers that she needs to do so.

Mr Hertz (father of C)

Mr Hertz impressed as an honest, spontaneous and straight forward witness. He conceded past abuse of alcohol and admitted an incident in April 2009 where he was charged with driving with a prescribed content of alcohol in his blood. I accept his evidence that he received drug and alcohol counselling in G. The combined evidence of Mr Hertz and his sister, which I will refer to later in these reasons, leads to a conclusion that Mr Hertz is no longer susceptible to drinking to the point of intoxication.
He was asked how long he had had a problem with alcohol. His answer was insightful: “It’s hard to realise when you don’t consider it a problem to know how long it’s been a problem”. He went on to say that his father had been very supportive. When Mr Hertz had to attend drug and alcohol courses it had been a real inconvenience to his father, who is also Mr Hertz’s employer, but his father had been very helpful about it. Mr Hertz was raised by his own father without a mother. He said this in relation to his daughter: “I’ve missed so much time with her already, I’d be pretty keen to spend as much time as possible with her”. Mr Hertz has also gradually established a good relationship with Mr Picot and they are able to agree to create times when the children can spend time with each other.
Mr Hertz is clearly a hard working person. Indeed his commitment to work may well have been a source of the isolation and loneliness that the mother experienced when C was a baby. He was impressive in relation to C’s relationship with her mother. He freely conceded that she was closely attached to her mother and that it would be “most definitely” traumatic for her to be separated from her mother.
I accept the evidence of Mr Hertz that he would arrange his working hours in whatever way was necessary to accommodate the needs of his daughter.

Mr J (paternal grandfather of C)

Mr J employs his son in the family business. His evidence was impressive in terms of his straight forward responses and his understanding of raising children, he having raised his two children in the absence of their mother.
I accept his evidence that he would “juggle employees around to ensure [Mr Hertz] is available for the baby” and also his evidence that his son now drinks much less and in a responsible way, whereas previously he had been drinking every day. Mr J was clearly pleased that his son had become in his words “remarkably responsible”, but that he knew he would need help and he would give him any support he could give if he thought it would help C.

Ms N (paternal aunt of C)

The paternal aunt, Ms N gave evidence. Her experience as a mother and her love of this little girl was compellingly evident.
Ms N lives and works in D with her father and brother in the family business. Ms N has strong negative views about the use of marijuana and alcohol. In relation to her brother’s separation and the potential loss of his relationship with C, she said this: “I had a massive massive talk with him. I told him I wouldn’t support him in any of this unless he gave it [drinking and marijuana] up”. She said she told him that if he was serious about his daughter there was no option but to give up his single lifestyle. I take that to mean drinking every day at the local pub and using marijuana.
Like her father, M N has been impressed by the change in her brother, not only in his drinking but also in his attitude and commitment to C. Ms N paid a most touching tribute to her father in this way: “I have never touched drugs I never would. I am so grateful to my father for what he has done for me. I am proud of the life I live. 110% my mother’s drug use has affected me”.
I accept the evidence of Ms N that she would do everything she could to help C. She was most impressive in her positive statement about the mother: “I understand her feelings completely. I have no ill feelings towards her and never will have. I will always be there for her if she needs me to help”. Ms N brought tremendous warmth to the subject of her niece and also to the boys. I accept that she would treat all three children as well as she does her own children. She described Mr Picot as a wonderful father, quiet and patient. She was clearly every bit as interested in L and R as in C and pleased to consider them part of her extended family. Her three children are very much of an age with L, R and C.
Ms N was an outstanding witness whose evidence I accept without reservation. She is a force for good in the lives of the children, especially C.

Mr Picot (father of L and R)

Mr Picot was rather a tentative witness. He conceded that he had R rated material (DVD’s and magazines) in his house but said it was “completely out of reach”. Mr Picot may be unrealistic about what it takes to put such material out of reach of teenage children. He has had difficulty managing the impact of his own adult relationships on his sons and their unfolding adolescence.
He denied that he would fail to give R the medication he was taking and he certainly denied that he had ever been at ease with the notion that the boys would live away from G. I formed the impression that he found it difficult to speak out about matters which concerned him. For example, Mr Picot may have spoken favourably of “life on the coast” to the mother whilst being opposed to any move away. I also consider this may have been an attempt by Mr Picot to avoid conflict with the mother, but in behaving this way he may have misled or at least confused the mother.
I accept that Mr Picot learned through these proceedings that there had been a successful compensation claim on behalf of R and that he had not been involved in the settlement at negotiations. He conceded that he would like to live on the coast at some time in the future, but had no plans to do so. Mr Picot was not a forceful personality. He was quietly spoken and hesitant in his answers. It seems clear that he was intensely distressed by the breakdown of his marriage to the mother and it may be that he continued to express hope for reconciliation in a way that was distressing and off putting or even repellent for the mother. He conceded that he had placed an advertisement offering his services as a masseur in a local paper. He said he had suffered from episodic depression.
I was left with the impression that Mr Picot had been unable to assert himself effectively as a father in terms of what the children’s interests and commitments were. He said that he knew R had been seeing a psychologist, that he had made inquiries with some specialists and had spoken to Ms Q (the occupational therapist), but R was no longer attending upon Ms Q at that time. The father felt “[he] always seem[s] to catch up after [R] stopped seeing someone”.
Q: Have you asked [Ms Picot]?
A:Orders say she should tell me. Communication has been very little. It would be so much easier if she would supply the information.
A picture emerged of the father waiting to be told about the boys and the mother waiting for the father to ask, which left both of them frustrated and disappointed with each other as parents. Given the reluctance of Mr Picot, which appears to arise from his rather diffident personality, it is likely that the only real means of communication between the parties will be his online communication book system which has apparently been the first thing to work effectively.
Mr Picot assessed his relationship with Mr Hertz as quite good and had improved enormously since their early relationship. He was open to the three children spending time together on a regular basis. This would be a benefit to the children.
Mr Picot’s working hours are 7.00 am to 4.00 pm. This means he would not be able to care for the boys before school commenced and would require his neighbour to assist in doing so. He said he would have their clothes and lunches ready, but they would require supervision in the morning. He said R was a bit of a handful, got a bit wild but that when he talked to him he could calm him down.
Mr Picot was asked about R’s accident. He gave a full and detailed description of the accident as if it had happened yesterday. I had the impression from observing the mother in the court room that this was the first time that she had heard an accurate eye witness account. Mr Picot said that R was air lifted to Sydney and he stayed in G knowing that arrangements were being made in Sydney. He said he could not get to sleep because “The accident played over and over and over again in [his] mind”. He knew he needed to get to sleep in order to be able to drive down to Sydney, which he did at 4.00 am the next morning. He agreed that the mother had rung during this short period of sleep and “expressed her anger”. The matter of R’s accident is so clearly still an issue between these parents and has been an impediment to their mutual communication and trust.
Mr Picot agreed that R was having difficulties at school. He had spoken to a teacher there. He expressed the view that R was easily influenced, that he did not mean to be naughty and that he was easily led. He revealed an insightful attitude to R’s learning difficulties: “You have got to do what he enjoys to do, reading on the games machines is good”.
Mr Picot also spoke affectionately of C. He said, “She and the boys love each other dearly and shouldn’t go long without seeing each other”. Mr Picot’s position is that the boys should have week-about care. He said they had expressed a wish to live with both parents and for the parents to communicate better. He said his reason for seeking week-about care is he wished to see them more and that they wanted to see him. He said he had mentioned his proposal to them. He thought that relationships would improve.

Family Consultant

In cross examination much of the Family Consultant’s evidence related to the adverse impact on the children of being separated from their mother if she went to Queensland without them. Most particularly she was concerned about the negative effect on C being separated, the grief and loss she would experience and the backward steps she was likely to take in terms of her development, toilet training, feeding and relationships. She thought the older children would also experience grief and loss, but would cope fairly well.
The Family Consultant was unwavering in her view that the children needed to remain in G, preferably with both their parents and with an increasing amount of time spent by all children with their respective fathers. Ms F expressed some concern about the non-compliance by the mother in the past with Court orders, but strongly took the view that C in particular would do better if she continued to live with her mother, considering her young age. Ms F put some emphasis on the significance of the relationship between the children and needing to regard them as a sibling group, despite the fact that they had different fathers. I accept that maximising the time for the children together will be a benefit to them. The orders allow for this to happen with both fathers as well as with the mother.

General law in parenting cases

The Family Law Act 1975 (Cth) (‘the Act) requires the Court to apply a rebuttable presumption that it is in the best interests of a child for both parents to have parental responsibility for the children until an inconsistent order is made by the Court (s 61DA) The presumption is rebutted and the Court may make an inconsistent order for parental responsibility if it is satisfied that there has been abuse of the child or family violence (s 61DA(2)), or if it would not be in the best interests of the child for the presumption of equal shared parental responsibility to apply (s 61DA(4)). In this matter, each party asks that there be equal shared parental responsibility between the mother and each of the fathers. The presumption of equal shared parental responsibility for the children is not rebutted on account of any abuse of the children or family violence and I am satisfied that it is in the best interests of the children for their parents to have equal shared parental responsibility.
Section 65DAA requires that when a child’s parents are to have equal shared parental responsibility, the Court must consider whether the child spending equal time or, alternatively, substantial and significant time with each of the parents would be in the best interests of the child and whether it is reasonably practicable. If both are answered in the affirmative then the Court must consider making an order to provide for the child to spend equal time with each of the parents.
A court determines what is in a child’s best interests by considering the matters set out in section 60CC. In considering these matters, the Court must also bear in mind the objects underpinning the legislation (s 60B).

Child’s best interests – Primary considerations

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents.

The boys have a meaningful relationship with both of their parents.
C has a meaningful relationship with both of her parents.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence.

None of the children has been subjected to or exposed to abuse, neglect or family violence.

Child’s best interests - Additional considerations

Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views

The boys, especially R, expressed a preference for living in Queensland with their mother. The mother ultimately decided to remain in G.
In any event their views reflect, in the view of the Court, both a general preference to remain mostly in their mother’s care, together with the probable knowledge that the expressed intention of their mother was to live in Queensland, whether they were permitted to go with her or not.
At the time of trial, L was about 13 and R about 11 years of age. Although both boys are in their teen years and L appears quite mature and considered for his age, I accept the Family Consultant’s evidence that they are not emotionally or intellectually mature enough to consider the long term implications and consequences of such a decision. This is particularly true of R, who is not only just entering adolescence, but who is intellectually developmentally delayed because of the accident he suffered.
Therefore, whilst a factor to be considered, their views do not carry significant weight in determining final parenting orders.
C was three years of age at the time of trial and clearly insufficiently mature for her views to carry any weight in the determination of final parenting orders.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the child).

The children all have a close and loving relationship with their mother, with each other and their maternal family in Queensland.
The boys have a warm and loving relationship with their father. He is especially patient with and intuitive about R.
C has a close and loving relationship with her father which will develop and deepen further as she grows up. He has been less available to her in the first four years of her life, for several reasons, than would have been ideal. C also has a loving and joyful relationship with her paternal aunt, uncle and cousins and with her paternal grandfather.
The boys also have a good relationship with C, Mr Hertz and his wider family.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.

Each of the children has a good relationship with both parents, which reflects well on all parents.
While I am satisfied each of the fathers are willing and able to facilitate and encourage a close and continuing relationship between the children and the mother, I am not satisfied the mother has the ability to reciprocate. The mother’s relocation from G and her subsequent failure to disclose her whereabouts to the fathers demonstrates her inadequate commitment to the continuing relationship between the children and their respective fathers.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

either of their parents; or

any other child, or other person (including any grandparent or other relative of the children), with whom they have been living.

The orders provide for all of the children to spend time with each of their parents.
The children will maintain significant time together as a group in their mother’s home, decreasing somewhat when the boys are at the age of independence and C will benefit from equal time with both parents.
The order for C to spend equal time with both parents will result in C spending more time away from the mother than she has previously done. The orders provide a staged program of time over a number of years which gradually leads C to equal time with each of her parents.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

The mother’s decision to remain in G means there is little or no practical difficulty or expense in the children maintaining contact with each of their parents. All of the parents will henceforth be residing in or near the G area.
The children will be able to move easily between households and, increasingly, the boys will do so independently.
Mr Hertz will be able to adjust his working hours to meet C’s needs. While there is some travel from Mr Hertz’s home in D to G, the travel involved is a car trip of some 20 minutes, which is not burdensome to either parent.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs

The parents each have the capacity to meet the children’s needs, including their emotional and intellectual needs. However, their ability to do so has fluctuated.

There is some basis from the evidence for concluding that the mother and Mr Picot are still suffering distress from the accident involving R in April 2004. Mr Picot has struggled with depression. The mother has felt overwhelmed by the breakdown of two relationships and the very different needs of her children. Her desire to “get away” to Queensland overwhelmed her in 2008 to the detriment of the children.
Mr Hertz had succumbed to what his sister wryly described as “the single lifestyle” with its heavy emphasis on drinking and smoking marijuana. With drug and alcohol counselling and the support of his father and his sister, Mr Hertz has been able to make a successful effort to change his lifestyle. He is now able to remain child-focused.
Accordingly each parent has, despite loving the children, fluctuated in his/her capacity at times to meet the children’s needs.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant.

The children are two brothers now aged 14 and 12 and their sister C, almost 4.
L is a mature, considered boy who is doing well at school.
R struggles at school and is probably immature for his chronological age. He will benefit from the united support of his parents to become established independently.
C has one or two years before school starts is apparently a bright, bubbly and outgoing child.

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander.

Not applicable.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents.

The mother has taken the responsibilities of parenthood very seriously. She has borne the responsibility for most of the care of the children. It has at times been a burden. Her own needs have been given second place. It is understandable that she looked for a way out as she felt she was in “turmoil” and felt that “everything will be better if we can just get to Queensland”.
The mother felt unable to call on Mr Picot for more assistance for fear of re-activating his wish to reconcile with her. Likewise she felt unable to call on Mr Hertz who appeared to the mother as if he divided his time between work and socialising.
The incident which leads the Court to question the mother’s attitude to the responsibilities of parenthood is her flight to Queensland in 2008, which was a crisis for all parties. However, the mother recently demonstrated some insight into her responsibilities as a parent by choosing to remain in G. This shows she is able to see the importance of each of the fathers in the children’s lives and the value to the children in preserving and nurturing those relationships with their respective fathers.
While Mr Picot is a concerned parent, particularly in relation to R, and appears aware of his responsibilities as a parent, he needs to ensure that R rated material in his possession is not able to be accessed by the boys.
Mr Hertz has demonstrated a proper attitude to the responsibilities of parenthood as evidenced by his commitment to curb his alcohol and drug use and his abandonment of ‘the single life’.

Section 60CC(3)(j) – any family violence involving the children or a member of the children’s family.

Not applicable.

Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family

There are no current family violence orders. Family violence is not a live issue.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the children.

It is important that there be no further litigation. It has been a constant for about three years.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

The children are very important to each other. Consideration has been given to maximising their time together for the next few years. The respective fathers are on good terms. The mother was ambivalent about remaining in G right up until the final submissions on the adjourned date.
Accordingly there is a need to strengthen relationships at every level against the possibility that the mother does leave G before all the children are independent.

Section 60CC(4)

The mother failed to facilitate the participation of Mr Picot in making decisions about the boys, especially R.
The mother and Mr Picot have been unable to speak to each other, in particular about R’s accident. The mother has mistakenly concluded that the father was not interested in important decisions. The father was ambiguous in his dealings with the mother which confused her.
Both boys and R in particular, would benefit from consultative attendance of both parents at significant medical, educational and social events and consistency of approach to discipline.

Conclusion

The orders are designed to ensure that the children consolidate relationships with their respective fathers, with each other and with important extended family members. This will give them a sense of stability and will enable the mother to have time for herself confident in the knowledge that the children are being cared for. In the event the mother does decide to move away from G herself, the children will have strong stable relationships to rely on to assist with the distress caused by the reduced time with their mother.

L and R Picot

L will be 14 in April 2011 and R is now 12. Both boys are in the secondary stage of their education and entering adolescence. They have always been cared for by their mother and have spent regular time with their father Mr Picot, although at times this has been disrupted, particularly in 2008/09 for a six month period, when the mother was in Queensland.
The boys expressed a view to the Family Consultant that they would be happy to live in Queensland. However, I take to be more of a statement that they are content to be living with their mother, than a real choice of Queensland over G, despite R’s enthusiasm for the beach. There is also the need to consider their relationship with their little sister C, who will be four years old in May 2011.
Since the mother has decided to remain living in G, there is very little difficulty in the boys regularly seeing their father. It would be disruptive and inconvenient for these high school age boys to adhere to a pattern of moving their clothes and possessions and all the books they need for school on a weekly basis.
Their father has steady employment which he has held for many years, and requires him to start work by 7.00 am. Although the father deposed that he might make an arrangement with his neighbour Ms S to be look after the boys in the morning, there was no evidence to that effect from the neighbour. Consequently, it is a possibility that the boys would be required to make their own way to school. While L may be able to do this himself, it would be difficult for R and therefore difficult for L who would be required to assist his brother in getting ready for school, as well as himself. Furthermore, even if Mr Picot’s neighbour agreed to assist in looking after the boys before school, it does not seem likely that the boys would react well to being supervised by a neighbour, no matter how familiar, every day in that way. It is more likely that she would be on call if either of them required assistance. The mother is available to the boys in the mornings and the evenings. On balance I consider that significant and substantial time is a more appropriate arrangement and is reasonably practicable in the circumstances.
Holiday time will be shared. It will be a matter for Mr Picot to make arrangements (as it is for all working parents) for the care and supervision of the boys during these holiday periods when he is working. L will increasingly spend time independently with friends and in activities. R will require supervision and support.

C Hertz

C is primarily attached to her mother. She has not spent sufficient time with her father and was deprived of time with him entirely for up to six months in 2008/09. This was a disruption to the formation of an appropriate attachment between C and her father. C has the benefit of a close loving and supporting paternal family in D. There is some 20 minutes car travel involved from G to D, but it is not impracticable for there to be equal time.
There is a consideration of C’s relationship with her older brothers. In the event that she spends equal time between her mother and father, this would result in a diminished opportunity for C to spend time with her brothers. The siblings are assessed by the family consultant to be a close and affectionate group. On balance I consider it is appropriate for C to spend substantial and significant time with her father, progressing to equal time in four years time. This staged program of time gives C the opportunity to gradually re-establish and nurture a relationship with her father before commencing equal time, and simultaneously allows her to maximise time with L and R during her early attachment years to ensure the relationships between siblings are established and remain strong.
In the year C turns eight, the boys will be 18 and 16 respectively. It is likely that they will both have completed or nearly completed high school. Even if that is not the case, their interests will still be ever increasingly outside the home.
C will benefit from a further increase of time with her father, paternal cousins and extended family at that point. L will undoubtedly be a licensed driver by that time. Both boys would be able to independently visit their sister in D at times if they wished.
For these reasons, I made the orders identified at the start of this judgment which serve the child’s best interests.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 31 March 2011.

Associate:

Date: 31 March 2011

[2011] FamCA 210

31 March 2011

Key Legal Topics

Areas of Law

Family Law