James and Bailey

[2011] FamCA 902

FAMILY COURT OF AUSTRALIA

JAMES & BAILEY [2011] FamCA 902

FAMILY LAW – CHILDREN – whether a significant change has occurred in order to make the re-opening of a prior decision as to where the children live appropriate

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC ¶90-725
SPS and PLS (2008) FLC ¶93-363

APPLICANT: Ms Bailey

RESPONDENT: Mr James

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon, Solicitor

FILE NUMBER: BRC 9299 of 2010

DATE DELIVERED: 24 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Fowler J

HEARING DATE: 22 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Middleton

SOLICITOR FOR THE APPLICANT: Couper Geysen, Family and Animal Law

COUNSEL FOR THE RESPONDENT: Ms Carew

SOLICITOR FOR THE RESPONDENT: BCA Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Dr H

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon, Solicitor

Orders

1. The mother’s application for orders that the children live with her is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:

Ms Bailey

Applicant

And

Mr James

Respondent

And

Christine Vachon, Solicitor

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are proceedings between the parents of twin boys born on 15 June 1998 and now aged 13½ years in which the mother seeks that the place where the children live is changed from with the father to with her and she seeks some consequential orders.

2. The father has brought an application in which he seeks that existing orders that the mother spend time with the children be suspended and other orders.

3. The children the subject of this dispute have been surrounded with parental conflict and litigation from the early years of their life.  It has been frequent and unrelenting and bitter.

4. The history of that litigation involves contested interim and final parenting applications with the case first coming before Justice Jerrard in November 2001 and then before Justice Lawrie in 2002.

5. From the decision of Justice Lawrie in 2002 there was an unsuccessful appeal to the Full Court.  Her Honour in effect made orders that the children reside with the mother.

6. The dispute again having come before Justice Bell in November 2007, a trial took place in January 2008 with a decision being delivered in March 2008.

7. The orders made by Justice Bell are the last final set of parenting orders made and the children were by those orders to live with the father and to have contact with the mother first on a supervised and then on an unsupervised basis.

8. The judgment was the subject of an appeal and the appeal was dismissed.

9. The present contest commenced in December 2010.  Although interestingly the mother did not file a formal application even prior to the hearing.  On the hearing the mother was, with consent of all parties, allowed to proceed on an oral application in which she sought orders that the children reside with her and spend defined time with the father.

10. The father sought orders that the mother’s contact with the children be suspended.

11. The Independent Children’s Lawyer sought a variation of the orders made which would have had the effect of inter alia limiting the time spent by the mother with the children in the short term and then progressing hopefully to unsupervised contact in accordance with the orders of Justice Bell.

12. On the morning of the hearing the father’s counsel indicated that she wished to make an application to dismiss the mother’s application for orders for change of residence on the basis that the mother had not established that the threshold referred to in the case of Rice and Asplund had been crossed.

13. The case of Rice and Asplund is reported as having held that the Court should have regard to any earlier order made in proceedings and the reasons for that order and the material on which that order was based.

14. The Court, it said, should not lightly entertain an application to reverse an earlier custody order.  The Court needs to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step, some new fact arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

15. These are not necessarily matters for preliminary submissions but they are matters that the judge should consider in his reasons for decisions.

16. There should be circumstance which requires the Court to consider afresh how the welfare of the child should be best served.  Once the Court is satisfied that there is such a factor then the issue of custody is to be determined in the ordinary way.

17. In that case Chief Justice Evatt points to the evil sought to be avoided:

    [the Court] should not lightly entertain a decision to reverse an earlier custody order.  To do so would be to invite endless litigation, for change is an ever present factor in human affairs.

1. In SPS and PLS (2008) FLC ¶93-363 Justice Warnick, sitting as a judge of appeal from a decision of the Federal Magistrates Court, considered the principles of Rice and Asplund in the following terms:

   48.      In my view, reflection on the rule shows that:

   (i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

   (ii)In its original formulation, the rule is directed to application as a preliminary matter.  Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing.  The consequences of that determination have received little attention.

   (iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.

   (iv)Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.

   (v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

   (vi)“Shorthand” statements of the rule may contribute to its misapplication.

   (vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.

1. His Honour referred to Justice Evatt saying, “That the purpose of the rule was to avoid endless litigation.”

2. He observed that public interest in the end of litigation is in part to avoid public expense but having said that refers to the decision of Justice Nygh In the Marriage of McEnearney (1980) FLC ¶90-866 where he says:

   … the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.

   The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because of the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.  (emphasis added)

1. His Honour goes on to say:

   Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts.  This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result  [emphasis added].

1. Justice Warnick says application of the rule is closely connected with the nature of and degree of change sought to the earlier order.

2. His Honour refers to the decision of Chief Justice Evatt In the Marriage of Zabaneh where she says:

   The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children.  The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.

   Different issues arise in relation to reinstatement of access.  The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes.  Time may play a part in this.  This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes.  That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.

1. Justice Warnick goes on to offer the view that the rule may not impede the hearing of an application for an alteration which may require only a short and narrow inquiry but may properly prevent a hearing in respect of more far reaching matters.

2. The question before this Court is whether the Court can on the papers determine whether the mother has shown a change of circumstance sufficient to require the Court to consider afresh how the welfare of these children should be best served.

3. It was submitted by the father that the Court should determine as a preliminary matter that it ought not to entertain the mother’s application because she did not demonstrate such a significant change.

4. It was put by the father that the parties in these proceedings have been through a 14 day trial to determine where the children live in 2003 and an 8 or 10 day trial in 2008 as to where they should live and the mother seeks to reverse the orders made by Justice Bell in 2008.

5. It was pointed out that were this to be such a retrial everything would be open and matters not covered in her written material before this Court at this time would be relevant including her current psychiatric health which health was an issue in the 2008 hearing.

6. Justice Bell had observed that these children need an end to litigation and observes also that they have been involved all of their lives in parental dispute.

7. The mother has to demonstrate that changes which are of such significance as require the re-opening of the matter.

8. The father’s counsel assumed that the mother would rely on an expression of the children’s wishes.  The children’s wishes have been the subject of a report both at the time of the hearing before Justice Bell and in contemplation of these proceedings.  The children say a number of things which seem to the Court to express a wish that they live with both their mother and their father but that they say that realistically they will live with their father and wish to spend time, unsupervised time, with the mother.  This is put forward by them as a good outcome.

9. The Court refers to the wishes expressed by the children as set out in paragraphs 25, 30, 31, 32, 34, 36 and 37 of Ms G’s report:

   25.[B] was interviewed first.  He stated that he was aware that he was being interviewed for Court and to talk about “living with Mum.”  He then stated:  “I know that Mum wants me and [C] to live with her and Dad knows that we want to live with Mum.”  [B] then stated:  “I’d still live with Dad if we lived with Mum.  If we ask Mum and tell her we want to see Dad, she will let us, now that we’re older.  When we were younger we had [Ms D] and Mum influencing us and telling us we didn’t want to see Dad and we didn’t want to hurt their ([Ms D] and Mum) feelings.  But it’s different now.

   …

   30.[B] stated;  “We have the best relationship with Mum.  It’s more open with Mum.  With Dad it’s a bit different.  I want both Mum and Dad in my life.  I just wish we could tell them to wipe the slate clean and start again.”

   31.[C] also stated that he was aware that he was being interviewed to discuss parenting issues and stated;  “I miss Mum and would like to live with Mum.  Dad knows we want to live with Mum.”  He also reported that he wanted to be able to see both his parents.

   32.[C] also expressed a similar sentiment to [B] by saying;  “If we could wipe the past and Mum didn’t worry about us going to Dad’s and Dad worry about us going to Mum’s and we could live in harmony it would be great.”

   …

   34.[C] spoke of his maternal [a]unt [Ms D] imposing “a lot of pressure on Mum and us.”  When asked to explain what he meant.  [B] reflected;  “Mum and them (extended maternal family) want us to come and live with them it’s almost like they’ll do anything.  They’re going about it the wrong way.”  He also mentioned that;  “[Ms D] is a bit over protective when it comes to Mum.  I guess it’s because she cares.”  He ended his interview by saying;  “I just wish it was all normal and nice.”

   36.When asked what they thought might be a good outcome;  both boys agreed that;  “realistically it’s probably best we stay with Dad and being trusted to have unsupervised time with Mum again.”

   37.[B] and [C] were further asked to think about what arrangements could be put in place that would help build up the trust that they spoke about, and make it easier for them to move between each parents’ household.  One of the boys stated that he had found it easier to changeover from his mother’s care to his father’s care at the Police Station somewhere here in Brisbane rather than get on a plane at the Airport.  It was also suggested that they found it easier to spend the first half of the holidays with their mother and then spend the second half either down in Brisbane or [E Town] with the big brother [F] and/or their father, and/or “doing stuff with Dad (back home) before we go back to school straight away.

1. It was pointed out by Dr H for the Independent Children’s Lawyer that children of the age of these children are not aware of the niceties or language under the Family Law Act and it seems to me that these children in their expression of wishes are saying nothing more nor less than what they have said in the proceedings before Justice Bell namely that they want to be with and have a relationship with each of their parents.

2. It is argued by the mother that the fact that these views are expressed at an age of 13½ years, the fact that they are expressed after a significant time residing with the father, is a circumstance sufficient to justify the re-opening of the residence question.

3. In the Court’s view the views of the children are the same views as they have already expressed; whether they be expressed with more maturity or less maturity, they are the same.

4. They do not represent, the Court finds, a change of such significance as would warrant a reconsideration of a change in residence particularly, when they are examined carefully, they are at best ambivalent but in the Court’s view more probable than not to represent the view that they accept the current residential arrangements with their father but that they would like to spend more time with their mother on an unsupervised basis.

5. It appears to be put by the mother that the children absenting themselves from a return to their father’s residence in 2010, the incident which gave rise to these proceedings, however it was facilitated, whether with the active promotion of the mother or the independent decision making of the children, perhaps as a response to grief in the mother’s family, represents a significant change which justify a re-opening of the issues.

6. The Court takes the view on the material that has been provided that whilst an examination of why what happened happened might be relevant to the issue of the conditions upon which the children spend time with the mother, the Court takes the view that the actions of the children (whether following aiding abetting counselling or procuring of the mother or as a result of the decision as the mother would have it not to return because their grandfather had died and their grandmother was ill) as not giving rise to a need to re-open consideration of the residential arrangements for the children.

7. If the children’s non-return was as a result of the active participation of the mother then there is no change in circumstance which would justify the mother in bringing an application.  If it was a reaction to family grief, that grief has past and it is not so significant a change as would justify the issue of residence again being considered.  If it was an expression of the then view of the children for some other reason then it merely reflects the underlying dynamics of this family which have been there since these children were born.  A family riddled with conflict, surrounded by litigation of the most hostile and aggressive type, a family where there has been mental instability, and lack of insight in the needs of the children, and in that, regrettably, nothing much appears to have changed.

8. Further, in relation to the wishes of the children, the children in any event are said to be young 13½ year old children.  They are clearly children who want to please both parents and who have clearly in the past said that they have done what their mother has told them to do because they did not wish to hurt her or her kin.  They profess a maturity now to be able to resist or not be so influenced by the attitudes of the mother and her family.

9. This self-report of the children has to be read in the light of the context for these children who have lived in the conflicted environment referred to.

10. It is not in the Court’s view something to which so great a weight can be given as to justify a re-opening of the residential arrangements for the children.  It may be something which goes to the question of what the future holds for time to be spent with the mother.  In that regard the father does not contest that the children love their mother and want to be with her from time to time.  He does not have trust, however, in the mother and not on the history without, it appears, some cause;  in 2006-07 the mother absconded with the children for a year, changed their names and he had no time with them.

11. It was suggested that if the Court is to look at an issue of time spent with the mother and determines that for that issue the Rice and Asplund threshold has been crossed then it might be crossed in relation to the issue of residence.  The Court rejects that and considers that the rule in Rice and Asplund is applicable on an issue by issue basis;  in other words the Court could determine that there was not sufficient justification for a re-opening of the issue of residence but could decide there was sufficient to justify to re-opening of the question of time spent.

12. Counsel for the Independent Children’s Lawyer, Dr H, spent some time in dealing with the respective Family Reports of Ms J prepared for the purposes of the trial before Justice Bell and, that of Ms G prepared for these proceedings.

13. The Independent Children’s Lawyer pointed to the significant commonality between the findings of the reports and it seems on a consideration of those reports to the Court that clearly the underlying family dynamics have not changed nor have the children’s wishes or their relationship with each parent nor has the relationship between the parents changed.

1. Ms J in her report spoke of the significant difference between the expressions of view of the children and their conduct.  Their conduct was dissonant with their expressed fears.

2. True it is that before Justice Bell there was less emphasis on the views expressed by the children but it seems clear that in the context in which they were expressed they were accurately set out in the report.

3. These children are knowing in relation to their situation.  They know their mother wants them to live with her and that their father wants them to live with him.  Nevertheless, the children in the Court’s view, who also express a desire that the slate be wiped clean and that everybody start again, are simply expressing a hope which in this case may be forlorn, that the conflict will end.

4. That wish will not be assisted by a further trial of the issues between the parties and it is the view of the Court that it is not demonstrated on the material before it that the interests of these children would be served by a re-opening of the residence issue.

5. The assertion by the mother that the objects of Justice Bell’s decision, namely to effect a rebalancing of relationship and other purposes having been implemented that that itself is a significant change.  Given the similarity of the dynamics referred to in the Family Reports it is not the Court’s view that that process has completed and is still in its progressive phase.

6. The Court does not find such an assertion to give rise to a significant change warrant a change in residence.

7. The events which precipitated the current litigation were that the children were to fly to their father’s residence having spent time with the mother and did not board a plane.  The father contends that the mother engineered, with the assistance of her family, the failure of the children to do so in a deliberate attempt to frustrate the orders which had been made.  The mother denies the allegation but in any event the children were recovered and returned to the father and have since resided with him.  They have seen the mother on a supervised basis only since then.

8. The father brought an application to vary the order of Justice Bell and declined to provide contact in accordance with his order.  He did permit supervised contact.  The mother complains of the father’s failure in this regard and relies upon it as a new circumstance of sufficient gravity to give rise to a conclusion that the threshold referred to in the case of Rice and Asplund (1979) FLC 90-725 has been met.

9. The father however points to the fact that he had brought an application for variation of the order in a timely fashion.

10. The mother had however made a contravention application which had had to be first determined before attention could be given to the question of the terms upon which the mother would see the children.

11. It was made clear by Justice Bell who heard those matters that until such time as the variation could be determined he would not treat the father as contravening the orders.

12. The Court finds that the father did do everything reasonable to vary the order which was not being implemented.  The Court does not, given the fact that this hearing has only been able to be now heard and the comments of Justice Bell referred to, take the view that the father’s conduct represents a fact or circumstance of sufficient gravity to require a re-opening of the question of with whom these children should live.

13. In considering the application of the rule in Rice and Asplund there has to be a proportionality between the nature of any new circumstances and the change sought to be brought about.  In this case there is not demonstrated in the Court’s view a new circumstance sufficient to justify the change sought by the mother.

14. In both Family Reports there is a clear indication that these children wish to be loyal to both their parents.  The Court cannot see that the permitting of a further conflict between the parents of which they will undoubtedly be aware because of a change of insufficient significance would other than be inimical to their welfare.

15. The last thing that the interests of these children will be served by is a continuation of major disruption in their lives and major litigation.

16. I am required to consider findings in relation to the father’s application to dismiss the mother’s application for change of residence in the context of the principles set out in the Family Law Act. Those principles governing parenting cases are set out in the Family Law Act 1975 (“the Act”).

17. In deciding whether to make an order in the present proceedings I must regard the best interests of the child as the paramount consideration (see section 60CA).  In determining what is in the child's best interests, I must consider certain matters under section 60CC.  Those matters are the "primary considerations" and the "additional considerations" set out in that section.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. There exists the possibility of these children having a meaningful relationship with each of their parents notwithstanding the application of the rule in Rice and Asplund to the mother’s application for a change of the place at which the children live.  The nature and extent of that relationship needs to be considered yet in further proceedings.  The mother however is conceded by the father to have the love of her children and his concern is for their safety.  It seems that both his desire to give effect to the love the children have for their mother and to preserve their safety and the mother’s concern to have a meaningful relationship with her children can be accommodated without a consideration of the possible change of their residence.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

2. These children have been the subject of continuing conflict and litigation, change and uncertainty in their lives.  The dismissal of the mother’s application will reduce the conflict and litigation to some extent and give the children the certainty of a result as to their place of living.  The court considers that in this way a measure of potential psychological harm to the children may be avoided.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children have expressed views as set out in the judgment.  The Court takes the view that those statements reflect the children’s affection for each of their parents and their desire not to hurt either of them.  The Court accepts that the children are reported as having said that a good result would be realistically they live with their father and see their mother on an unsupervised basis.  The order proposed to dismiss the mother’s application will not prevent such views being given effect if there is no contrary indication of risk for the children.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. The lot of these children has been one of conflict and litigation but nevertheless they express love for each of their parents.  It seems to the Court that taking into account all matters alleged the children have affection for their parents.  They enjoy their father’s company.  They accept their mother’s different style of parenting and perhaps enjoy it.  They have expressed the view that their step mother complements their father.  There is evidence that they have affection for their maternal relatives.  Nothing in the order which the Court proposes to make will prevent the opportunity being explored for those relationships to continue.

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

3. The orders made will not inhibit the parties from demonstrating the willingness and ability to facilitate and encourage a close and continuing relationship with the other parent in a way which is safe and rewarding for the children.  The issue of the nature of the opportunities for the children to continue in a relationship with each parent will be affected by the geographical location of the parents and their willingness notwithstanding past and continuing problems to be child focussed in their dealings with the children and each other and to recognise that each of them may have something positive to offer the children.

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

4. The orders the Court will make in relation to residence will not change the current residence of the children.  The Court has yet to consider the arrangements for the circumstances in which and the conditions (if any) upon which the children will be able to spend time with their mother.

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

5. Given that the children presently live in K Town and the mother in Brisbane it is clear that there is a cost in time and money in arranging for the children to see and be with their mother in either of those cities.  However it has been managed in the past and the order that the Court proposes to make would not create any change.

   (f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

6. The Court has yet to determine the extent that the children will spend time with their mother.  There is no evidence that the father has not met the children’s basic needs.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

7. Although 13½ years old there is a suggestion that the children are “young “thirteen and a half year olds.  They do demonstrate some insight into their current situation.  The order proposed to be made will not change the situation for the children found by Justice Bell to be appropriate.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

8. This does not apply in this case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

9. There is nothing in the order proposed to be made which requires matters under this heading to be further considered.

   (j)any family violence involving the child or a member of the child’s family

10. There are allegations of family violence.  The existence of those allegations is not such as would prevent the order sought by the father being made.

    (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

11. There are none.

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

12. The order proposed on the history of this matter will limit for the time being litigation.  It is probably too much to hope on the history of this matter that it would be a realistic expectation that no further proceedings would be instituted concerning these children.  They will however ultimately attain the age of

    
    

    18 years and that may be the time at which further proceedings are less likely.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

3. The order presently proposed to be made will not change the existing arrangements for parental responsibility and that is a matter for determination with the balance of the issues in these proceedings.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.  The question in this case of the time to be spent by the children with their mother is an issue which must abide its further hearing and no order will be considered at this time.

2. The Court will accordingly dismiss the mother’s application for orders that the children live with her.

3. That leaves open a consideration by the Court of what arrangements should now be put in place for the children to spend time with their mother in a way which serves their best interests.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on

24 November 2011.

Associate:

Date:  24 November 2011