John and Chris

FAMILY COURT OF AUSTRALIA

JOHN & CHRIS

[2007] FamCA 393

FAMILY LAW - CHILDREN - With whom a child shall live - Relocation - Use of family consultant after hearing to manage transition of young child to father

APPLICANT:

JOHN

RESPONDENT:

CHRIS

INDEPENDENT CHILDREN'S LAWYER:

FILE NUMBER:

HBF

814

2003

DATE DELIVERED:

2 March 2007

PLACE DELIVERED:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

1 & 2 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McIntyre

COUNSEL FOR THE RESPONDENT:

Mr Lewinski

SOLICITOR FOR THE RESPONDENT:

Mr Lynch

INDEPENDENT CHILDREN’S LAWYER

Mr Tony Fitzgerald

Orders

THAT all previous parenting orders with regard to the child born in October 2002 (“the child”) be discharged.
THAT the father and mother each have parental responsibility with regard to the child.
THAT the child live with the mother.
THAT subject to order 5 the child spend time with the father as follows:-
(a)During Tasmanian school terms each alternate weekend (commencing first weekend after the commencement of each school term) starting 9.00am Saturday until 6.00pm Sunday;
(b)One week during each school holiday period as agreed between the parties or if the parties are unable to agree from 10.00am on the first day of each mid year school holiday period and from 10.00am on New Years Day in the Christmas/New Year school holiday period for a period of seven days plus one half of the Easter holidays being the first half in even numbered years and the second half in odd numbered years;
(c)From 3.00pm to 6.00pm each Christmas Day.
(d)If the child does not otherwise spend time with the father on Father’s Day from 10.00am to 6.00pm on Father’s Day.
(e)In the event that the father would otherwise spend time with the child on the Mother’s Day weekend, the time spent on that weekend to conclude at 6.00pm on the Saturday proceeding Mother’s Day.
(f)these orders shall operate as and from Saturday 21 April 2007.
THAT for the period from the date of these orders until 20 April 2007 the child shall spend time with the father as follows:-
(a)for the weeks of Friday 16^th, 23^rd and 30^th March 2007 from 10.00am Friday until 6.00pm Friday;
(b)for the Easter weekend from 10.00am Thursday until 5.00pm Easter Friday;
(c)for the weekend of 13 April 2007 from 10.00am Friday until 5.00pm Saturday 14 April 2007;
(d)for the purposes of spending time with set out above, the mother is to deliver the child to the office of the Family Consultants, Hobart fifteen minutes before the commencement of each such period that the child is to spend time with the father and to leave the child and leave the building as reasonably directed by a Family Consultant with a Family Consultant to facilitate the transition of the care from the mother to the father. Further that the mother accept any reasonable direction of the Family Consultant.
(e)that when the mother delivers the child to the family consultant she attend with the child and no-one else.
THAT the father is to return the child to the mother at her home or at some other place reasonably requested in writing by the mother and agreed in writing by the father.
THAT by way of injunction, the mother be restrained from changing the place of residence of the child from within fifty kilometres of the GPO Hobart without further order of the Court or without written agreement of the father.
THAT both parties together attend counselling with Mr C or Ms S or Mr W or P Organisation as agreed between the parties or in the event they are unable to agree within seven days of the date of these orders, then with Mr C if he is available if not available then Ms S, if she is not available then Mr W and if he is not available then a counsellor/mediator nominated by P Organisation subject to:-
(a)the parties being equally responsible for the fees for such counselling/mediation;
(b)the parties to contact the counsellor/mediator within seven days of agreement as to counsellor or mediator or fourteen days from the date of this order, whichever is the earlier;
(c)each party to attend at times and places arranged by such counsellor/mediator;
(d)the Independent Children’s Lawyer to forward to such counsellor/mediator a copy of the party’s affidavits filed in these proceedings, the family report, the affidavits of Mr P, Ms A, Mr R and a copy of these orders.
THAT both parties shall keep the other advised, in a timely fashion, of any medical or other issue pertaining to the child including details of any medical, dental, psychological or psychiatric treatment undertaken by the child.
THAT the mother and father shall ensure all school records shall note both the mother and father as persons with whom the school authorities may liaise from time to time regarding the child.
THAT in the case of any medical emergency both parties shall immediately contact the other regarding the child’s medical circumstances.
THAT neither party shall denigrate nor permit any other person to denigrate the other party, the other party’s partner, sibling or parent nor the circumstances of the child or of the other party in the presence or hearing of either or both of the child.
THAT the father be and is restrained from consuming and/or being affected by alcohol when the child in is his care.
THAT pursuant to s.65DA(2) and s.62B, 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.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
THAT the appointment of the Independent Children’s Lawyer be discharged as and from three months following the date of these orders.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
NOTATION

That the presumption under s61DA does not apply by virtue of a finding under s61DA(2)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 814 of 2003

JOHN

Applicant

And

CHRIS

Respondent

REASONS FOR JUDGMENT

These are proceedings commenced by the father, and the mother, relating to parenting orders with regard to their son who is presently aged four years.
The father seeks orders that the mother be restrained from removing the child from residing in the Hobart area and further orders that the parents have equal shared parental responsibility with regard to the child.
Further, he seeks orders that the child live with the mother and that he spend time with the father one week during each school holiday period; each alternate weekend and on other significant occasions. He opposes the mother's application that she be allowed to relocate the child’s residence to Queensland.
The mother seeks orders that she have sole parental responsibility for the child and that he reside with her and further that the child spend time with his father and that the mother be able to relocate the child’s residence to south-east Queensland.
The mother does not oppose the orders sought by the father in terms of spending time with the child, but says the child does not wish to spend time with the father as a consequence of the father's alleged abuse of her and other matters.
This matter was commenced as a less-adversarial trial. The parties were unable to resolve issues accordingly the hearing was finalised on 1 and 2 March 2007.
Each of the parties were represented and there is an independent children's lawyer. As there was no transcript of the evidence given on earlier days of the less-adversarial trial, I inquired of counsel, and counsel accepted, that the evidence upon which the issues between the parties are to be determined ought to be on the evidence that was before me on 1 and 2 March 2007. I will adopt that course.
There is no issue that the child should continue to live with the mother. There is an issue in relation to the parental responsibility and it is the submission of both the independent children's lawyer and counsel for the mother that I ought to make a finding under section 61DA(2), and having made that finding the presumption ought not to apply. The submission of the father is that in any event the presumption ought to apply.
In terms of background: the father is aged 48. He works at a call centre for a major bank and this involves him spending about 38 hours per week at that employment.
The child is one of the three children of the father; the other two being J, aged about 24 who lives in Queensland, and N aged 21, who lives in the Hobart area. The elder children of the father are self-sufficient to the extent that children over the age of 18 can ever be self-sufficient. N lives with his maternal grandmother and attends university.
The unchallenged evidence of the father is that he sees N regularly, including having a meal with him about once a month. As to J, geography conspires against regular face-to-face contact, the father says he telephones him about once a week and they communicate by email. The father's third child is the son, who is the subject of these proceedings.
The mother is aged 43. The mother has three children, including the child. The others are A, aged 17, and L aged 9. These children live with the mother in the Hobart area.
The parties have not lived together but spent time together during 2002. Their relationship came to an end at about the time of the child’s birth. Proceedings commenced between the parties, with interim consent orders being made on 16 April 2003, these orders provided that the child would live with his mother and the father would have contact with him every second Saturday, or as otherwise agreed; these orders being made when the child was about 6 months old.
A final order was made in this court on 18 August 2003 which provided that the child would live with his mother and provided permission for the child and the mother to relocate to Queensland. The mother was given sole parental responsibility for the child’s day-to-day care, welfare and development, and the father was to have contact with the child as agreed between the parties.
Subsequent to the time of that order the parties' relationship warmed and the mother did not move to Queensland. Her evidence was that she continued to propose to travel to Queensland but her health and in later time, poor legal advice predicated against the move. The father's evidence was that in his view was there was no real intention by the mother that she go to Queensland.
Irrespective of the reasons, the mother did not move to Queensland and still resides in Tasmania. The relationship between the parties seemed to warm after those orders and I will discuss that history later in these reasons.
The parties' relationship deteriorated in 2005 or early 2006, and since that time the child has spent little or no time with the father either supervised or unsupervised. Prior to that time the father spent with the child was when in the care of the mother, although there is some evidence from the mother's brother, R, that the father spent some time with the child outside the care of the mother. I note paragraph 8 of the maternal uncle's affidavit, where he deposes the father declined to change a dirty nappy.
In about April 2006, arrangements were put in place for the child to see the father, supervised by the maternal uncle. That arrangement did not work in the long term, although on the evidence of both the father and maternal uncle it seems that the child had no significant issues with spending time with the father at that time. The maternal uncle gave evidence of two concerns but they were in the order of things not of huge moment.
Subsequent to that endeavour, contact was tried through the Hobart Contact Centre. That contact initially worked but eventually ended up in a situation where it did not continue and subsequent to that, “contact” or "spend time with" was tried through the “[G Organisation]”. That time occurred on one occasion and then did not otherwise occur.

The relevant legal principles pursuant to the Family Law Act

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[1] s 60B(1) Family Law Act 1975 (Cth).
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
[2] s 60B(2) Family Law Act 1975 (Cth).
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:
Section 60DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
[3] s 61C Family Law Act 1975 (Cth).
[4] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
There is some debate within the legal profession as to whether the presumption “automatically” applies once an order is made. A reading of the amendments in context with s61C should be read that the provisions of that section apply until a contrary order is made by a court or agreed in writing between the parties.
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[5], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
[5] s 65DAA(1) Family Law Act 1975 (Cth).
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly
Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
1.   The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable.   Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
2.   If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
3.   A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
[6] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
[7] s 61DA(3) Family Law Act 1975 (Cth).
[8] s 61DA(4) Family Law Act 1975 (Cth).

As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[9] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
The amendments go on to provide in s 60CB that the best interests of the child is the paramount consideration.
How the court determines what is in the best interests of a child is set out under s 60CC of the Act.
Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?
It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
The approach to be adopted by a court is structured.
The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[10] where her Honour said;
[10] G and C [2006] FamCA 994.

The primary considerations

65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66This is a case where both of the primary considerations are relevant.

The benefit of a meaningful relationship – as a primary consideration.
67The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].
70The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
[11] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).

71     The arguments supporting the second possible interpretation include;
(a)     Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)      The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

71My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [B] into the future.

I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[12]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[12] Ibid paragraph 68.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
There was a debate in relation to the effect of section 61DA(2) in respect of this matter and that is the impact of a finding that there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence.
The section is quite an interesting section in many ways in that it initially imposes a presumption upon a court and then in terms of the presumption not applying it gives the court no discretion as to whether or not it ought not to apply. There is a reasonable ground to believe that a parent of a child has engaged in abuse or family violence, bearing in mind the narrower definition of abuse and the broader definition of family violence. I would have thought in many families it would be easy to show that there is a reasonable ground to believe.
Once that finding is in place then there can be presumption applying. That of course does not prevent the court from putting in place an order for equal shared parental responsibility if all other factors direct that way. I agree with the submissions of both the independent children's lawyer and the father that this is a case where I probably could not, and should not, find that the presumption does not apply, but it is still open to me on the material for me to make an order that there be equal shared parental responsibility, if I believe that is in the best interests of the child.
The parties referred me to the decision of Godfrey v Saunders [2007] Fam CA 102 where Kay J dealt with the principles applicable in relocation cases and where his Honour agreed with the analysis of Dessau J in M v S [2006] Fam CA 1408 Kay J observed that:-

45. Relocation cases are notoriously difficult. Both parties have valid claims of right. The legislation requires the Court to regard the best interests of the child as the paramount consideration but what is in the best interests of the child is not a matter about which there may be universal agreement. Further, as Kirby J said in AMS v AIF at 207-208:

…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.

46. The very many authorities that discuss the appropriate principles to be applied in relocation cases and as cited at the commencement of the Federal Magistrate’s judgment (see par 14 above) are all decisions that were made before the substantial amendments to the Act in July 2006. My research has only located one decision in which the effects on previous decisions relating to relocation cases as a result of the new amendments has been analysed by a Judge of this Court. That is a decision of Dessau J in M and S (formerly E) [2006] FamCA 1408.

47. That case concerned a proposed move to England from Australia by the mother of the child which would severely impact upon the existing arrangements that saw the child spending time with her father on two weekends per school term and half the school holidays. Her Honour said:

26.There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child's living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.
27.The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:
“(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.
28.Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case [2006]) FamCA 1346] observed (at para 72):
“… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”

29.Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:
“The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

30.In the recent amendments, s 60B(1)(a) provides that the objects are to ensure that the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;”

In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.
31.The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time …” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”.
32.The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two considerations expressed as “primary considerations”, the relevant one being:
“…the benefit to the child of having a meaningful relationship with both of the child’s parents…”.

There are then “additional considerations”, including a newly expressed consideration:
“(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;”

33.The revised explanatory memorandum noted (at para 49) that the intention of separating the primary considerations from the additional considerations was to:
“…elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.”

The memorandum went on to explain (at para 52) that they were elevated as they deal with “important rights of children and encourage a child-focused approach”, although it was acknowledged (at para 51) that there may be some instances where the secondary considerations outweigh the primary ones.
34.In the second reading speech in the Senate on 11 May 2006 (at page 55), it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to “draw appropriate attention to the objects’ provisions in a positive way”, and likely to assist in directing the court’s attention to those objects, “particularly in relocation cases”. That point, however, was not expanded upon further.
35.The Attorney General’s submission to the House of Representatives’ Standing Committee on Legal and Constitutional Affairs noted that the primary considerations were “almost certainly” likely to have an impact upon the way in which relocation cases were decided, in particular, the emphasis on maintaining a meaningful relationship with both of the parents (see page 51 of the Report). Again, there was no further discussion or elaboration.
36.Although not in relation to relocation, Goode’s Case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. In paragraph 65 of Goode’s Case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case.
37.As noted, Counsel for both parties in this case agree that whether O lives in Melbourne or the UK, neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome, so that, as set out in paragraph 65.8 of Goode’s Case, the issue is then:
“…at large and to be determined in accordance with the child’s best interests.”

And
“9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”

38.Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39.The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.

I provided each of the parties with a copy of her Honour’s reasons for judgment and invited submissions from them as to whether they sought to address me on reaching a different legal conclusion to that reached by Dessau J. Counsel for the mother and for the Independent Children’s Lawyer did not submit that I should reach a different conclusion on the law to that expressed by Dessau J. The respondent father as a self-represented litigant was unable to advance the discussion any further.
Without the benefit of a reasoned contradictory argument, I see no reason to depart from the approach adopted by Dessau J that whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
Those are the principles that I apply in determining this case.
The father relied on his affidavits filed 6 February 2006 and 4 December 2006. On his evidence and that of the mother, I am satisfied that the father has had significant alcohol difficulties in the past. The evidence from the husband is that the last of those difficulties was when he was involved in a car accident in 2002, where alcohol was involved.
The mother's evidence is that there was at least one, or perhaps a number, of telephone conversations from the father to her subsequent to that time when she asserted that the father was intoxicated.
The last of those she says was in January 2006 where the mother alleged the father telephoned her in a drunken state. There is no evidence in relation to the time the child spent with the father in 2006 that the father was affected by alcohol.
For the reasons, I will articulate further in this judgment, I have concerns about the quality of the evidence of the mother. I am satisfied that the father was significantly caught up in an alcohol addiction up to 2002 but that since that time I am satisfied on balance that his alcohol has not impacted on his parenting of the child.
Notwithstanding that finding, I will put in place orders which will prevent the father from consuming or being affected by alcohol at any time the child is in his care.
The father consented to the mother and the child relocating to Queensland in August 2003, and I have to have regard to that order and I do. However, significant time has passed since that time, including a warming, of the relationship between the parties and of course the difficulties, that now exist with regard to the child transiting from the mother to the father.
I have concern about the evidence of both parties. Neither party came through this trial unscathed. The father prevaricated in relation to his lack of knowledge with regard to his genital herpes and the consequences of genital warts upon the mother. The father's explanation regarding the impact of his intoxication and the use of his language in arguments was not satisfactory.
On the other hand, the mother's evidence was, at some levels, worse. During the course of her cross-examination it was necessary for me to stop her and remind her that she was on oath. At times some of her evidence seemed to have displayed indications of being made up as she was going along.
When she was being cross-examined in relation to the allegation that the father transmitted diseases to her she gave evidence that he said to her some time in May or June 2004 - that he said the words, "I know I have them" - meaning herpes - "and no-one else will believe you." What is strange is that was not set out in her affidavit material. For someone who asserts that she is a careful record keeper, not to record such a conversation , this was out of character.
I do not accept much of her evidence. In her affidavit the mother alleges the father was physically abusive to her and verbally abusive to her and was drunk on many occasions. The allegations are set out in annexure “W “to her affidavit sworn 7 December 2006.
The father denied that he was physically abusive to the mother. On balance I do not accept the mother’s evidence in that regard and prefer that of the father. I do however accept that each of the parties were verbally abusive to each other and that verbal abuse was part of the nature of their relationship. This seems to have been the way this couple operated.
In relation to the physical abuse, the mother’s evidence is that:
"18 January 2003, verbally abused; physically attacked followed with further abuse and threats" and she sets out in detail what happened and she describes what would in any way be regarded as a very violent confrontation where [the child] was present”.
What is of concern in respect of that allegation is that the following day the mother and the father went on outings to the Botanical Gardens together. This is hardly consistent with the version of events she gave on 18 January 2003.
A domestic violence order had been made against the father at about that time. He said it was done without admission, although I am told that legally it cannot have been done other than by admission at that time.
Whilst there may have been a finding, I accept his evidence that at no time did he concede to the factual matters underlying the proceedings.
In terms of the father's evidence with regard to the herpes and the warts, I am not satisfied that he was frank in giving that evidence. The family reporter says that the father told her, at paragraph 26, he was tested for the virus but had no symptoms. He says he did not say this to the reporter and only subsequently had tests. I do not accept his evidence in that regard.
That was a matter of enormous consequence in terms of these proceedings and the reporter would have been careful in recording material such as that. I am satisfied that the father knew he had the disease, and notwithstanding that knowledge, had unprotected sex with the mother in circumstances where she was not informed of the risk. I find it more likely than not that the mother contracted the disease from the father.
This has significantly damaged the relationship between the parties to the extent that their relationship is unlikely to be restored. The father has little insight into the impact of this action upon the mother and her anger and distress arising from those events and, in part, explains the mother’s anger and dislike of the father.
This response can be seen in the mother's insistence that the child wash his hands when visiting the father and my findings of her overt discussions of this disease in the presence of the child. I generally prefer the evidence of the Contact centre staff and the G Organisation staff to that of the mother and to that of the father.
The mother alleges that there is a risk of the child contracting genital herpes or genital warts from the father. There is no medical evidence before me to that effect. The father has given evidence of the difficulties regarding spending time with the child over the last 12 months or so.
An issue I have in this case is that which was articulated by Mr P; that is whether the difficulties with regard to the child seeing his father, which have become worse over the last eight to 12 months, arise as a consequence of the mother's reaction to the father - not in a malicious way but just in terms of her general dislike of the father - or whether there is some malice attached to her behaviour.
I am satisfied that the mother discouraged the child from visiting the father and is opposed to the child spending unsupervised time with him. While she goes through the rhetoric of saying that she tries to encourage the relationship, it does not make sense that this child who would otherwise reasonably go to his father in April 2006, would suddenly develop a view that his father is a violent person and that his father is a risk to him.
The changeover has now reached the stage where now two things have occurred: firstly, the child will not visit Mr P (his treating psychologist) and shortly before Christmas events occurred in a motor car which must have been awful for all involved, particularly the child.
In her evidence the mother complained that the father insisted on DNA testing. The mother said she told him she was pregnant very early in the pregnancy and she said she at no time disputed that he was the father. In cross-examination she conceded that her solicitors had written a letter to the father's solicitors where they said words to the effect, "Our instructions are that your client, the father, is not the father."
The mother conceded this letter was sent on instructions and this evidence has to be seen in stark contrast to her earlier evidence. The mother was cross‑examined in relation to her relationship with the father post the orders 2003. She was asked if she had agreed to marry him after that time. She denied that assertion and said they talked of marriage in 2002.
Yet in Easter 2005, or in March 2005, the mother sent the father an Easter card which was addressed "to my darling fiancé, [J]" and the words in the card were of a very familiar and warm to him.
This must be seen in stark contrast to her earlier evidence to the contrary and despite her efforts to explain it in re-examination. The mother disputed the version of the evidence given by the family reporter at paragraph 22 where she the family reporter asserted the mother said she did not intend to comply with consent orders made 22 March and make the child available for unsupervised contact.
I prefer the evidence of the family reporter. The mother says she had no knowledge of the orders of 23 March and she just signed them and did not read them. I do not accept her evidence in that regard.
The mother was challenged about her brother attending at the G Organisation meetings where he indicated he was the child's advocate and there was significant cross‑examination in respect of that. Yet when Ms T gave evidence she was not challenged in relation to that assertion. I find that the mother’s brother, said to the staff at “[G Organisation]” that he was the “child’s advocate”.
There was debate about the mother's brother, attending at the Hobart Contact Centre and later at G Organisation. The mother seemed incredulous in her evidence that there would be a problem in him attending, and in the evidence from the contact centre it was clear that the mother had been informed that others could not attend. Yet the mother invited her brother attend at the changeover and I find that such issue was raised with her at the Hobart Contact Centre. In the light of this concern the maternal uncle still came along to the G Organisation changeovers.
In paragraphs 26 to 30 of her affidavit, the mother sets out the reasons for relocation to Queensland. On the evidence before me I find her primary reason for relocation to Queensland is to separate the child from the father. It is a continuation of her endeavours in that respect.
In relation to the report from the Children's Contact Service, it is of value to observe the following:
“
ii)On the visit of 13 March 2006, I find the mother expressed to members of the staff allegations of venereal disease and the need for the child to wash hands in the presence of the child. This is clearly something that ought to have been raised earlier and I accept the evidence of the contact centre in that regard. At that time the mother would not properly separate from the child despite the child 's comfort with the father.
iii)On the visit on 9 April it took some time for the child to separate from the mother, and yet he eventually did.
iv)On 12 April the mother informed the centre she did not want unsupervised contact to take place.
v)On 23 April she was warned about the number of people she was bringing to the centre in breach of the service agreement. The mother said she had no knowledge of the agreement. I have already made a finding in that regard.”
What is of concern is that the mother's brother became involved in that process where he ought not to have done so. More telling was the mother's refusal to help settle the child when she was asked to.
On 17 May the centre reports:
“The family services manager of Relationships Australia, [Mr M], and the HCCS staff member, telephoned the mother to discuss contact arrangements for the coming weekend. It is noted that the mother refused to listen to the proposals or requests regarding HCCS facilitating contact, often talking over the top of [Mr M].
[Mr M] asked that the mother arrive at the centre with the child on her own as per the service agreement she signed, leave the centre when requested to do so by staff, and keep her mobile telephone on so that she can be contacted if [the child's] visit needed to be finished. The mother wanted any requests from HCCS in writing. [Mr M] agreed to that. The mother then said the HCCS staff had been inappropriate for the service provided so far”
The mother says that this is explained by “annexure L” to her second affidavit where a concession was made in a letter from Ms H to the mother. Whilst there may from time to time be some minor criticisms of the way these organisations run, they must be seen in the light that they are not favouring one party or the other. Their job is to provide a place where children can interact with their parents and whenever the mother seems to clash with authority, as she has done as she has done with the contact centre and with G Organisation and indeed with the family reporter- it is they who have made the error and not the mother, I do not accept the evidence of the mother in that regard.
The approach of the mother continued at G Organisation where on 1 November 2006 the transition of the child to the father ran well. It was at subsequent times where the child said he was scared. The father had done nothing between the first and second occasion and from the evidence of the supervisor at G Organisation, nothing occurred on the first visit which could give rise to the child becoming scared. The outside influence operated upon the child whilst he was in the care of the mother.
The family reporter observed difficulties at paragraph 32 of her report. The mother was encouraging the child not to separate from her. Even when the child said he wanted to stay, the mother would not accept his answer, and in that regard the family reporter said: "Observation of [the child] did not support the mother's report that [the child] had separation anxiety. It is clear that the anxiety was that of the mother, not of the child."
The family reporter gave evidence in relation to her report. She said that the family consultants of the court could, for a short period of time, assist in the transition of the child from the mother to the father. Her view was that if the child had modest encouragement the transition would be made easier. Her evidence was that modest encouragement was not undertaken by the mother.
The family reporter's concern was that the child would develop a fear of the father which would adversely affect his long-term psychological development and that concern needed to be weighed against some short term difficulties in the transition from the mother to the father.
The events on 20 December 2006 need to be considered. That was a day shortly before Christmas when the child was to spend some time with his father. The mother said the child was reluctant to go and to encourage him to go, she arranged for her brother and maternal uncle, and her father to travel with him.
The maternal uncle said his presence was designed to help “soothe” the changeover. The mother and maternal uncle said to the child that they would take him to a park, in West Hobart, but in fact they did not, they dropped the maternal grandfather off in South Hobart and then went to “[G Organisation]”.
There was then described a very sad incident with regard to the child which occurred over a period of about half an hour. As the independent children's lawyer rightly pointed out, the child wouldn't get out of the car and was, on the evidence of the mother and her brother, seriously upset. Yet throughout this confrontation arrangement the brother was sitting in the car not wanting to interfere. Well, what was he doing there? What was the point of him being there if he was going to sit there like an [Egyptian] mummy and not assist?
The changeover was set up to fail so that the child would not spend time with the father. Mr P (the child’s treating psychologist) gave evidence and that the conflict between the parents is a significant feature in this matter. He said that when the child was with him, the child would spend time with his father.
Mr P’s evidence was that he did not believe the mother was deliberately inculcating the child with negative views but these arose out of the mother's inability to cope or to deal with the issues with regard to her relationship with the father and he said the consequences in relation to both were different.
His evidence was that the safer approach may well be not to put in place any orders but to try and see whether the counselling would find a solution. The problem with that, is that these parties have been endeavouring to find a solution for almost two years in this court.
Orders have been made which for one reason or another have not been complied with. If the time the child spends with the father is left solely to the mother, it will not happen. It has not happened much in 2006 and not at all so far in 2007. I am inclined to the belief that the mother is deliberately inculcating the child with negative views about the father, and the consequences of that for the child are significant.
The mother's brother, the maternal uncle, gave evidence. He must be seen as a partisan witness, very supportive of his sister and one who accepts with qualifications what his sister has said in relation to her perceptions of the history between herself and the father. At some levels, in terms of verbal abuse, that may be right. But this is not about the relationship between these two parents. This is about the relationship between the child and each of his parents.

Ms T gave evidence and observed that nothing from the first visit to G Organisation would have influenced the child 's reluctance to spend time with his father and she urged that the mother leave quickly. She said that they avoided discussion about adult issues, although those were not her precise words, and tellingly she said, "The mother was stressed and the child was beginning to be stressed."
I asked counsel for the mother to see whether there was any support in regard to questions of physical violence in the mother’s treating general practitioner’s medical records. He raised three issues, the first being one on 28 June 2002, where the report said, "The mother alleged she was hassled by her ex or former". The second was that she had been to court on the day before 12 September and an order had been made. The third was that she was going to speak to her solicitor about harassment.
There was certainly nothing supporting her in terms of the physical abuse which the mother sets out in her affidavit.
A primary consideration is the benefit of the child having a meaningful relationship with both of his parents. It is clear that such relationship must be of benefit to the child. On the material before me I find that when the child does spend time with his father he enjoys that time. On the evidence of all of the experts I find that it is in the child 's interest to have a relationship with his father.
I note the submissions of the independent children's lawyer in relation to that aspect of the section 60CC(2)(a) and I adopt those submissions.
The problem from the mother's point of view is if she is allowed to relocate to Queensland, the chances of any meaningful relationship between the child and the father are significantly diminished. As her counsel properly submitted during his final address, his job would be much easier if there was a good relationship between the mother and the child, and I agree with him in that regard.
In terms of the second consideration - that is the need to protect the child from physical or psychological harm, or being subjected or exposed to abuse, neglect or family violence - there are probably four areas to which the court ought to consider.
The first is the question of the father's use of alcohol, and clearly that has been a factor in the past I note the findings I have made in this regard, and as I have indicated I intend to put in place an order which will prevent the father from being affected by alcohol when the child is in his care. I am sure is the mother will keep a very close watch on the father in that regard.
The second issue is the question of the diseases which the father has now shared with the mother. There is no medical evidence before me that it is likely to be transmitted to the child.
The third issue is the difficult problem of the transition of the child to his father, which has become worse and worse over the last eight to 12 months. That has to be seen in the context of the importance of him having a relationship with the father, and it seems to me that it is a reasonable for the court to take put in place those arrangements which will facilitate that time.
Finally, there is the concern that the mother's anger at the father and her behaviour in continuing to poison the relationship between the child and the father.
In terms of the additional considerations, firstly as to the views of the child, he is four years and four months old - his views ought not to be given great weight, although I do give some weight to his difficulties of transition and I will endeavour to put in place orders which will manage this.
In respect of the relationship between the child and each of his parents there is no issue that he has a good relationship with his mother and is well bonded to both her and his siblings.
There is an issue about the relationship between he and his father and I have made comment on that in these reasons. I find that there is still a relationship able to be developed.
I find that the mother is not willing to in real and meaningful terms encourage the relationship between the child and his father, and I refer to the findings I have made earlier in these reasons.
I am not sure about the father's willingness and ability to facilitate the relationship with the mother. He leaves much of the parenting to the mother and the language and the verbal abuse that he conceded - and as I said, is probably greater than that - are not such as to make the child 's life particularly easy.
In terms of the mother relocating to Queensland, I have made the comments in regard to that. It would mean that the child would have no relationship with his father whereas if the child remains in Tasmania it is more likely that he will have a relationship with the father.
There are the practical difficulties and expenses of the child spending time with the father in Queensland. The mother says that the whole of the child support could be expended in airfares. That would mean that the child would have to live in significantly poorer living conditions and, probably have no relationship with his father, bearing in mind that his father only has some four weeks a year holidays.
The mother has a good capacity to care for the child, except in terms of his relationship with his father. I adopt the submissions of the independent children's lawyer with regard to the attitude to parental responsibilities. I note the previous family violence order and I note that that order has lapsed.
I find that the father has taken some, but limited, opportunities to participate in the parenting of the child since separation. Most of that has been left to the mother. I find that the mother at least in the last 12 months has not facilitated in engaging the father with regard to the parenting of the child.
In terms of parental responsibility, it seems to me that I ought not to make an order for equal shared parental responsibility for no other reasons - and these parties are barely able to communicate and equal shared parental responsibility implies some at least basic level of communication. But I do not intend to make an order for sole parental responsibility. It would seem to me that would add to the conflict that exists between these parents and would not be in the child 's best interests.
Accordingly I propose to make orders that the provisions under section 61C of the act continue. I intend to make the orders sought by the father with regard to the time the child spends with him and I intend, however, to put in place orders so that the court, through its family consultants, can assist with regard to that arrangement over a short period of time.
When I make these orders I make it very clear to the parties they are orders not a request, they are not an invitation, they are court orders. I expect them to be obeyed. The intention of these orders is that the child have a relationship with both of his parents and I ask each of the parties to carefully look at the consequences if the orders are not obeyed, because they include things such as fines, bonds, imprisonment and change of parenting.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as John & Chris.

I certify that the preceding 121 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 2 March 2007

[2007] FamCA 393

2 March 2007

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