Kay & Jasper and Ors - [2007] FamCA 1646

FAMILY COURT OF AUSTRALIA

KAY & JASPER AND ORS

[2007] FamCA 1646

FAMILY LAW – CHILDREN – Grandparents – Parents - The factor of parenthood- Best interests – Mixed sibling group – Mother unwell and not able to care for the children – Whether children should live with their respective fathers or as a sibling group with the maternal grandparents – Whether unacceptable risk of harm to one of the children – Whether risk of abduction of one of the children – Children to live with the maternal grandparents and spend time with their respective parents

FAMILY LAW – CHILDREN – Children’s surnames – Factors relevant to use of a surname other than the children’s birth surnames

Family Law Act 1975 (Cth) s 60CA, s 60CC, s 65DAA, s 68B

B & B (Family Law Reform Act) (1997) FLC 92-755
B v B(Re jurisdiction) (2003) FLC 93-136
Bennett v Bennett (2001) FLC 93-088
CDJ v VAJ (1998) 197 CLR 172
CJ v VJ (1997) FLC 92-772
Chapman & Palmer (1978) FLC 95-510
D & F [2001] FamCA 382
Dennett & Norman [2007] FamCA 57
Flanagan and Handcock (2001) FLC 93-074
Flanagan v Handcock (2001) 181 ALR 184
Goode & Goode (2006) FLC 93-286
Hodak v Newman (1993) FLC 92-421
Johnson & Page [2007] FamCA 1235
KN & SD & Secretary, Department of Immigration and Multicultural and IndigenousAffairs (2003) FLC 93-148
M v M (1998) 166 CLR 69
Monticelli v McTiernan (1995) FLC 92-617
N and S (1996) FLC 92-655
Re Evelyn (1998) FLC 92-807
Rice and Asplund (1979) FLC 90-725
Rice v Miller (1993) FLC 92-415

APPLICANT:

Ms Kay

FIRST RESPONDENT:	Ms Jasper
SECOND RESPONDENT:	Mr Green
THIRD RESPONDENT:	Mr Jasper
INDEPENDENT CHILDREN’S LAWYER:	Toni BELL

FILE NUMBER:

BRF

3337

2006

DATE DELIVERED:

14 December 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

20, 21, 22 and 23 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Read of Counsel

SOLICITOR FOR THE APPLICANT:

Cartledge Law

COUNSEL FOR THE FIRST RESPONDENT:

Mr Middleton of Counsel

SOLICITOR FOR THE FIRST

RESPONDENT:

Lynch & Associates

THE SECOND RESPONDENT:

Mr George of Counsel

COUNSEL FOR THE SECOND

RESPONDENT:

Fairlie Legal Services

THE THIRD RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Jordan of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders`

IT IS ORDERED

Parental responsibility – H, N and Y

The maternal grandmother (Ms Kay), the mother (Ms Jasper) and the father (Mr Green) have equal shared parental responsibility for the children H born in October 1994, N born in January 1997 and Y born in March 1998.
In relation to paragraph 1:
(a)Ms Kay, Ms Jasper and Mr Green may consult each other about the major long-term issues about H, N or Y in person, or by letter, email or text;
(b)If after consultation and a genuine effort to come to a joint decision about any major long-term issue a joint decision cannot be made, Ms Kay, Ms Jasper and Mr Green are to continue the consultation process with the assistance of a mediation service or family relationship centre (which Ms Jasper may attend by telephone if she is not in Brisbane) to endeavour to reach agreement and share equally the costs (one third each) of any such attendances.

Parental responsibility – L

Ms Kay, Ms Jasper and the father (Mr Jasper) have equal shared parental responsibility for the child L born in January 2004.
In relation to paragraph 3:
(a)There not be any in person or other direct communication between Mr Jasper and Ms Jasper, and each of their views about the major long-term issues concerning L are to be communicated to each other through Ms Kay;
(b)If after consultation and a genuine effort to come to a joint decision about any major long-term issue a joint decision cannot be made, Ms Kay and Mr Jasper are to continue the consultation process with the assistance of a mediation service or family relationship centre (at which Ms Kay may express any views which Ms Jasper may have) to endeavour to reach agreement and share equally the costs (one third each) of any such attendances.

Children’s living arrangements

H, N, Y and L live with Ms Kay and her husband Mr Kay.

Children spending time with Ms Jasper

The children spend such time with Ms Jasper as may be agreed between Ms Kay and Ms Jasper, all such time to be supervised by Ms Kay, Mr Kay or another responsible adult approved by Ms Kay.
The children’s time to be spent with Ms Jasper must not be arranged or agreed to interfere with any of H’s, N’s and Y’s specified time to be spent with Mr Green nor L’s specified time to be spent with Mr Jasper.

Children spending time with Mr Green

H, N and Y spend time with Mr Green as follows:
(a)On alternate weekends from after school on Friday until 5pm on Sunday;
(b)For each child, in a three week cycle, one afternoon after school, for 4 hours, the cycle to be Week 1 H, Week 2 N, Week 3 Y, and to be the Wednesday in each such week unless another day be agreed between Ms Kay and Mr Green;
(c)Half of the gazetted school holiday periods, being the second half for all holidays in or commencing in 2007 and the odd years, and the first half for all holidays in or commencing in 2008 and the even years;
(d)If H, N and Y are not already spending time with Mr Green on Father’s Day, on that day from 9am until 5pm;
(e)If H, N and Y are not already spending time with Mr Green on Christmas Day, on that day from 12 noon until 5pm;
(f)If H, N and Y are not already spending time with Mr Green on Mr Green’s birthday and the children’s birthdays, if a weekend day from 10am until 5pm and if a school day from after school until 7pm;
(g)At all such other times as may be agreed between Ms Kay and Mr Green.
If Mother’s Day, Ms Jasper’s birthday, Ms Kay’s birthday or Mr Kay’s birthday should fall during a time the children are spending time with Mr Green then, despite paragraph 7, and unless Mr Green and the children during any school holiday period are not in Brisbane, Mr Green use his best endeavours to make arrangements with Ms Kay for the children to spend 4 hours on each of those days with the person having the birthday.
The children’s alternate weekend time with Mr Green during school term is to recommence on the first weekend after the commencement of each new school term, and the children’s three weekly cycle after school time with Mr Green is to recommence with Week 1 being the first week of each new school term, regardless of the finishing point of those alternate weekends and three weekly cycles at the conclusion of the preceding school term.
Mr Green must ensure that during the time the children spend with him (including alternate weekends, week days after school and holidays) they not miss any of their scheduled sporting and extra curricular activities.

Child spending time with Mr Jasper

L spend time with Mr Jasper as follows:
(a)On each alternate Saturday, being the Saturday of the same weekend that H, N and Y spend time with Mr Green:
(i)during December 2007 and January 2008, for 2 hours between 11am and 1pm, supervised by Ms Kay, Mr Kay or another responsible adult approved by Ms Kay;
(ii)during February, March and April 2008, for 2 hours between 11am and 1pm, unsupervised in a park or other place as may be agreed between Ms Kay and Mr Jasper, provided that Ms Kay deliver the child to Mr Jasper 15 minutes before each 2 hour period and remain with the child and Mr Jasper for that 15 minutes and Ms Kay collect the child at the conclusion of each 2 hour period and remain with the child and Mr Jasper for 15 minutes;
(iii)during May, June and July 2008, for 4 hours between 11am and 3pm;
(b)Subsequently, on alternate weekends, being the same weekend that H, N and Y spend time with Mr Green, for 4 hours between 11am and 3pm on each Saturday and Sunday of that weekend;
(c)If L is not already spending time with Mr Jasper on Father’s Day, on that day from 9am until 1pm;
(d)If L is not already spending time with Mr Jasper on Christmas Day, on that day from 12 noon until 4pm;
(e)On L’s birthday in 2008, for 2 hours from 11am until 1pm, supervised by Ms Kay, Mr Kay or another responsible adult approved by Ms Kay;
(f)Until L commences her preparatory school year, if L is not already spending time with Mr Jasper on Mr Jasper’s birthday or L’s birthday, on those days for the same time periods and subject to the same provisions as set out in subparagraph (a), with effect that from August 2008 that time be 4 hours between 11am and 3pm;
(g)After L commences her preparatory school year, if L is not already spending time with Mr Jasper on Mr Jasper’s birthday or L’s birthday, if a weekend day from 11am until 3pm and if a school day from after school until 7pm;
(h)At all such other times as may be agreed between Ms Kay and Mr Jasper.
Whenever H, N and Y spend half of the gazetted school holiday periods with Mr Green, L’s time with Mr Jasper is to continue in accordance with paragraph 12 as if H, N and Y were continuing to spend alternate weekend time with Mr Green.
If Mother’s Day, Ms Jasper’s birthday, Ms Kay’s birthday or Mr Kay’s birthday should fall during a time that L is spending time with Mr Jasper, then despite paragraph 7, Mr Jasper use his best endeavours to make arrangements with Ms Kay for L to spend 4 hours on each of those days with the person having the birthday.

Other special arrangements for Christmas Day

In any year, if H, N and Y should be spending time with Mr Green on Christmas Day (by reason of the holiday time order referred to above) and/or if L should be spending time with Mr Jasper on Christmas Day (by reason of the alternate weekend order referred to above), each of Mr Green and Mr Jasper must arrange with Ms Kay for the 4 children together to spend four hours on those Christmas Days with Ms Kay and Mr Kay.

Changeovers

All changeovers concerning H, N and Y are to occur at Ms Kay’s residence except for time with Mr Green commencing after school, on which occasions Mr Green is to collect the children from their school or schools.
All changeovers concerning L are to occur at Ms Kay’s residence, except for those specified in paragraph 12(a)(ii).

Telephone communication

There be telephone communication between Ms Jasper and the four children at all reasonable times, as may be initiated by Ms Jasper or the children.
There be telephone communication between Mr Green and H, N and Y twice weekly, between 6.30pm and 8pm, but not on Wednesday evenings, Mr Green to initiate the telephone calls, and at all reasonable times the children may wish to initiate telephone calls to Mr Green.
There be telephone communication between Mr Jasper and L each Wednesday between 7pm and 7.30pm, Mr Jasper to initiate the telephone calls.

Non denigration

The parties must not denigrate each other to or in the presence or hearing of any of the children.

Information

Ms Kay, Ms Jasper and Mr Green must keep each other informed in writing as to his and her residential address, landline telephone number (if any) and mobile telephone number (if any).
Ms Kay must keep Ms Jasper and Mr Green informed as to:
(a)the name, address and telephone number of any school H, N and Y attend; and
(b)the name address and telephone number of any treating medical or health practitioner H, N or Y may attend.
Ms Kay and Mr Jasper (but not Ms Jasper) must keep each other informed in writing as to his and her residential address, landline telephone number (if any) and mobile telephone number (if any).
Ms Kay must keep Ms Jasper and Mr Jasper informed as to:
(a)the name, address and telephone number of any school L attends; and
(b)the name address and telephone number of any treating medical or health practitioner L may attend.
The parties must notify each other as soon as possible of any serious accident or illness relating to any of the children, providing that all communications between Mr Jasper and Ms Jasper be through Ms Kay.

Communication book

Ms Kay and Mr Green are to use a communication book in relation to matters concerning H, N and Y.
Ms Kay and Mr Jasper are to use a communication book in relation to matters concerning L.

Authorisation

The parties must authorise the children’s educational facilities and any treating medical or health practitioners the children may attend to provide to Ms Kay and the child or children’s other parent such reports and other information concerning the child or children (Ms Jasper as to all four children, Mr Green as to H, N and Y and Mr Jasper only as to L) as he/she may seek in writing from any such facility or practitioner, at his/her cost, provided that this order is sufficient authority for that purpose without further authorisation.

Attendance at the children’s school

The parties may each attend at the schools of their respective grandchildren and children for all functions and events usually attended by parents and grandparents.

Discharge of all prior orders and undertakings

All prior orders and undertakings concerning the children are discharged.

Dismissal of Mr Green’s application concerning H, N and Y’s surname

Mr Green’s application, made instanter, for an order that H, N and Y be known for all purposes by the surname Green is dismissed.

Dismissal otherwise of all other applications

All other applications concerning the children otherwise are dismissed.

Liberty to apply

The parties or any of them may apply, on short notice, by arrangement with the Associate, if any of these orders should be unclear or confusion arise as to their interpretation, provided that approach to the Associate be in writing and on notice to all other parties.

Independent children’s lawyer

The independent children’s lawyer is discharged.

Particulars of obligations

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create, the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with these orders are set out in the Fact Sheet attached and those particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Kay, Jasper and Green.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3337 of 2006

Ms Kay

Applicant

And

Ms Jasper

First Respondent

And

Mr Green

Second Respondent

And

Mr Jasper

Third Respondent

REASONS FOR JUDGMENT

Applications

These proceedings concern H born in October 1994, now 13 years, N born in January 1997, now 10 years 10 months, Y born in March 1998, now 9 years 8 months and L born in January 2004, now 3 years 10 months.
H, N and Y are the children of Ms Jasper (Ms Jasper) and Mr Green (Mr Green).
L is the child of Ms Jasper and Mr Jasper (Mr Jasper).
The proceedings were commenced on 25 November 2005 by Ms Kay, the children’s maternal grandmother (Ms Kay) a few months after Ms Jasper placed the children into her care.
Each party sought a complex set of orders concerning the children.
Ms Kay by her amended application filed on 20 August 2007 (original filed on 25 November 2005) sought that the four children live with her and her husband Mr Kay (Mr Kay); that she, Ms Jasper and Mr Green have equal shared parental responsibility for H, N and Y; she have sole parental responsibility for L; the four children spend time with Ms Jasper as may be agreed between Ms Kay and her and for half of the Queensland school holidays; H, N and Y spend time with Mr Green from 10am until 6pm on alternate Sundays, on a rotating basis for each child one afternoon each week after school for 3 hours and in each holiday period the first 7 days commencing on the first Saturday of the holiday period provided that such time coincides with Mr Green having recreational leave and Mr Green giving Ms Kay 28 days notice; L spend supervised time with Mr Jasper on alternate weekends for 2 hours at the … Contact Centre and also on special days either at the Contact Centre or Ms Kay’s home as agreed between Mr Jasper and Ms Kay; and several orders relating to telephone and other communication, changeover, information and other matters.
Ms Jasper sought by her response filed on 7 August 2006 that the four children live with Ms Kay and Mr Kay; Ms Kay, she, Mr Green and Mr Jasper have joint parental responsibility for their respective children and grandchildren; H, N and Y spend time with Mr Green as may be agreed or ordered; L spend supervised time with Mr Jasper; and orders relating to telephone communication and counselling.
Mr Green sought by his response filed on 26 May 2006 that H, N and Y live with him; he and Ms Jasper have joint parental responsibility for H, N and Y; the children spend time with Ms Jasper, or in her absence Ms Kay, on alternate weekends, half of the school holidays and on the children’s birthdays; and other orders relating to special days, telephone communication, changeover, information and other matters.
Mr Jasper sought by his response filed on 13 June 2006 that L live with him; he and Ms Jasper have joint parental responsibility for L; she spend time with Ms Jasper or in her absence Ms Kay on alternate weekends, half of the school holidays and L’s birthday; and other orders relating to special days, telephone communication, changeover, information and other matters.
By the conclusion of the proceedings, as often occurs, each party had modified their respective proposals to some degree.
Primarily, it was common ground by the conclusion of the proceedings, including as between Ms Kay and Ms Jasper, that all time the four children spend with Ms Jasper be supervised by Ms Kay, Mr Kay, or another responsible adult approved by Ms Kay.
Further, Mr George of Counsel, for Mr Green, submitted that if H, N and Y should live with him, he have sole parental responsibility for them (rather than joint parental responsibility with Ms Jasper); and introduced an alternative that if H, N and Y should not live with him they spend time with him on alternate weekends from after school on Friday until before school on Monday and for half of the school holidays as the “minimum time” the children spend with him. At another stage, Mr Green proposed that H, N and Y live with Ms Kay and Mr Kay during the school week and with him at weekends.
Mr Middleton of Counsel, for Ms Jasper, proposed that parental responsibility solely rest with Ms Jasper and Ms Kay (rather than there being joint parental responsibility including Mr Green concerning his children and Mr Jasper concerning his child) on the basis that inclusion of the two fathers in the parental responsibility process was not viable; H, N and Y spend time with Mr Green from 10am until 6pm on alternate Sundays, on a rotating basis for each child one afternoon each week after school for 3 hours, 7 days in each of the June and September school holidays and 2 periods of 7 days in the Christmas school holidays, the times to be arranged, and provided that the time coincides with Mr Green having recreational leave; L spend time with Mr Jasper, supervised, on alternate weekends for 2 hours at the … Contact Centre and on special days as agreed; and spend time with the Ms Jasper as agreed with Ms Kay but so as not to interfere with the time the children spend with Mr Green and Mr Jasper.
Mr Read of Counsel, for Ms Kay, resiled from the initial proposal that she, Ms Jasper and Mr Green have equal shared parental responsibility for H, N and Y; and proposed that H, N and Y initially should spend day time only with Mr Green on alternate weekends but increasing to overnight time conditional upon Mr Green completing a Triple P parenting course and other matters set out in a document provided during final submissions, graduating to alternate weekends from 10am Saturday until 6pm Sunday for 6 months and then alternate weekends from 4pm Friday until the commencement of school on Monday.

By the conclusion of the proceedings, the independent children’s lawyer, by Mr Jordan of Counsel, proposed that Ms Kay, Ms Jasper and Mr Green have equal shared parental responsibility for H, N and Y; Ms Kay, Ms Jasper and Mr Jasper have equal shared parental responsibility for L; the four children spend time with Ms Jasper as agreed between Ms Kay and Ms Jasper, supervised; H, N and Y spend time with Mr Green from 10am until 6pm on alternate Sundays (day time only), one afternoon each week after school on the rotating basis as mentioned above; 7 days during the Easter, June/July and September/October school holidays, being the first 7 days of each holiday period commencing on the first Saturday and for 2 periods of 7 days during the Christmas school holidays, the first 7 commencing on the first Saturday and the further 7 commencing on the third last Saturday, provided that such times coincide with Mr Green having recreational leave and conditional on Mr Green giving Ms Kay 28 days notice; L spend time with Mr Jasper on alternate Saturdays, coinciding with the weekends on which H, N and Y spend time with Mr Green on alternate Sundays, for 2 hours between 11am and 1pm supervised by Ms Kay or other person agreed in writing between Ms Kay and Mr Jasper, for 2 months, after that 2 hours between 11am and 1pm unsupervised in a park or other place agreed in writing between Ms Kay and Mr Jasper, with a proviso that Ms Kay deliver L to Mr Jasper 15 minutes before the commencement of that time and remain with L and Mr Jasper for that 15 minutes and at the conclusion Ms Kay remain with L and Mr Jasper for 15 minutes, for 3 months, and subsequently 4 hours between 11am and 3pm unsupervised, for 3 months, graduating then to Saturday and Sunday on alternate weekends for 4 hours between 11am and 3pm.
The parties’ competing proposals, by the conclusion of the proceedings, included numerous other matters set out in draft orders which helpfully were provided.
However, it is not necessary to refer in more detail to the competing proposals, the above analysis being sufficient I think to show generally the scope of the proposals.
In essence, Ms Kay proposed that the four children live with her, Mr Green proposed that his three children live with him and Mr Jasper proposed that his child live with him. Mr Green proposed in the alternative, that H, N and Y live with Ms Kay and Mr Kay during the school week, and with him on weekends, or that, that as “minimum time” H, N and Y spend alternate weekends and half holidays with him. Ms Jasper proposed that the children live with Ms Kay, and spend time with Mr Green and Mr Jasper as set out above. All of the parties’ proposals included telephone and other communication and diverse proposals for changeover, information and other matters.
Mr Green, further, sought an order that H, N and Y be known for all purposes by the surname Green, Ms Kay, during 2006, having arranged with the children’s school that they be enrolled as “[Kay aka Green]”. Although this relief was not specified in Mr Green’s response, his pursuit of such an order was made clear at the hearing and was litigated.
It is against this background of the parties’ varying proposals that I will now turn to the relevant background facts.

Relevant background facts

Ms Jasper is about 32 years.
Mr Greenis about 34 years.
Mr Jasper is about 36 years.
Ms Kay is about 53 years and Mr Kay about 51 years.
Ms Jasper and Mr Green married in early 1994. They separated in early 2000 and were divorced in 2003.
Ms Jasper and Mr Jasper married in about mid 2003. They separated in early 2005. They propose to divorce in the near future.
Ms Jasper lives in Melbourne, having moved there in about November 2005. She lives with her partner Mr D. Ms Jasper is employed in the health services field. She works about 60-78 hours each fortnight, on a “nursing shift” basis. She earns about $1,500 each fortnight after tax. Mr D works in the mining industry. Although there has been discussion about their relocation to Queensland, presently they intend to continue to reside in Melbourne.
Ms Jasper has been diagnosed as suffering a psychiatric disorder. She has a history of self harming, and acknowledges that she is not sufficiently well to parent the children. She described that she lives in fear of her life in relation to Mr Jasper, whom she alleged engaged in family violence by encouraging her self harming for his sexual gratification. Ms Jasper described that on one occasion, while with Mr Jasper, she cut her legs so severely that they required 35 stitches. At times during her evidence (on two significant occasions) Ms Jasper was shaking and sobbing so intensely, including gasping for breath, and collapsing to the floor in the curled position, as to cause temporary breaks in the proceedings with assistance from the Manager, Child Dispute Services, and subsequently Ms B, family consultant, to assist her with calming techniques. Ms Jasper explained, poignantly, to the effect that “it is taking all my strength to sit here” because of her fear of Mr Jasper. She explained however that in Melbourne she does not have the propensity to lose her composure, in the manner witnessed during the trial, because she has “put support people around me”, whom she trusts for her protection.
Ms Kay stated during the course of the proceedings (not in the witness box but in the well of the courtroom, which thus may not be recorded on transcript) that she had “never seen” Ms Jasper in the state which occurred during the proceedings and, it must be said, it was singularly I think these events which caused all parties, including Ms Kay and Ms Jasper, to agree as common ground that the children should spend only supervised time with Ms Jasper.
As the trial judge, I was concerned to witness Ms Jasper’s state twice while in the witness box, and arranged for the Court to offer her transportation by ambulance to hospital, which she declined.
The result of Ms Jasper’s state during the trial was that her cross examination was not able to be completed. However, rather than abort the trial, all Counsel sensibly agreed to proceed and stated, which will appear in the transcript, that they would not later contend any prejudice caused by that circumstance.
Mr Green lives on the Sunshine Coast in Queensland with his partner Ms W, with whom he formed a relationship in early 2007. He works as a tradesman, on the casual/part time basis for subcontractors. He described that, according to when work is available, his work pattern may be a full week, earning about $500, followed by not working for a few weeks, earning “zero”, so that his work average is 2-3 days per week. Ms W works also on the casual/part time basis. Ms W has two children, O 12 years and R 10 years, who live with Mr Green and Ms W in a rented 4 bedroom home, in which Ms W’s brother S, 23 years, also lives. Mr Green and Ms W said that soon they will rent a larger home in the Sunshine Coast area, perhaps up to 6 bedrooms, in particular to accommodate H, N and Y.
Mr Jasper is a United States citizen, who moved to Australia in early 2003 to develop his relationship with Ms Jasper, whom he had met via an internet “chat room”. Mr Jasper has two children in the United States, X 16 years and Z 11 years, born before his relationship with Ms Jasper, and is the alleged father also of two other children, … 7 years and … 4 years, whose paternity Mr Jasper either disputes or, or he said, has no sufficient basis as yet to acknowledge. Mr Jasper lives also on the Sunshine Coast. Currently, he does not have a partner.
Mr Jasper’s history in the United States was not the subject of much evidence at the trial. There was reference in the evidence to the possibility of his having been involved, in the United States, with child pornography and possibly child sexual abuse. The evidence relating to this aspect of the matter however largely was hearsay and conjecture, thus inherently unreliable and certainly not of a nature which would allow a trial judge in Australia to make findings.
Mr Jasper denied that he had assisted or encouraged Ms Jasper in her self harming, while they were together, and indeed gave evidence that he did his best to stop it, but was unable to do so.
Ms Kay and Mr Kay live at T, also on the Sunshine Coast. Ms Kay is a homemaker. Mr Kay is a labourer.

History of the children’s care including curial history

H, N and Y

After Ms Jasper’s and Mr Green’s separation in early 2000, until about mid 2000, H, N and Y lived with Ms Jasper and spent time with Mr Green on alternate weekends. This ceased in about mid 2000, apparently because (at least according to Ms Jasper) Mr Green did not contribute to the transport costs for contact, Ms Jasper and Mr Green apparently then living about 25 minutes apart on the Sunshine Coast and reliant upon motor vehicle transport.
Between about mid 2000 and October 2001, the evidence is unclear as to the time H, N and Y spent with Mr Green, however, it appears that it was sporadic.
On 5 October 2001, in proceedings BRF2505 of 2001, final orders were made that H, N and Y live with Ms Jasper and have contact with Mr Green as may be agreed between Ms Jasper and Mr Green but otherwise on alternate weekends, special days and during the school holidays.
In January 2003, Ms Jasper sent a letter to Mr Green ceasing the children’s time with him pursuant to those orders on the basis (as alleged by Ms Jasper) that Mr Green was not paying child support.
As a consequence, between about February 2003, when Mr Jasper moved to Australia, and early 2005, when Ms Jasper and Mr Jasper separated, H, N and Y lived with Ms Jasper and Mr Jasper, their half sibling L arriving in early 2004 so that, for about a year, Ms Jasper, Mr Jasper, H, N, Y and L lived together as a family unit, until Ms Jasper and Mr Jasper’s separation in early 2005.
H, N and Y did not spend time with Mr Green between January 2003 and April 2006, a period of more than 3 years, until the second of the orders made in these proceedings (interim orders) on 13 April 2006, which provided that H, N and Y have contact with Mr Green on alternate Sundays for 2 hours, to be supervised at the Sunshine Coast Family Contact Centre and telephone contact.
I have mentioned already that a few months before 25 November 2005, when Ms Kay commenced these proceedings, Ms Jasper had placed the four children into Ms Kay’s care. The first orders made in these proceedings were on 31 January 2006 (interim orders) which provided that H, N and Y live with Ms Kay and Mr Kay and have contact with Ms Jasper (Ms Kay and Ms Jasper then being the only parties to the proceedings) and that Mr Green be joined in the proceedings as the second respondent.
Subsequently to the orders made on 13 April 2006, on 10 August 2006 further orders were made (also interim) for H, N and Y to spend time and communicate with Mr Green at all such reasonable times as may be agreed but failing agreement for 4 unsupervised periods of 6 hours on alternate weekends, progressing to 9.30am Saturday until 5pm Sunday on alternate weekends for 4 further occasions, progressing then to after school Friday until 5pm Sunday.
This arrangement progressed very well, according to the evidence, with Ms Kay and Mr Green having no difficulty in its implementation, until early 2007 when Mr Green formed his relationship with Ms W. The children then complained to Ms Kay (particularly H, it appears) that Mr Green subsequently seemed (according to the children’s perceptions) to spend more time with Ms W than with H, N and Y, and that they had to share their alternate weekend time with Mr Green not only with Ms Wbut also her children O and R.

The first orders made in these proceedings on 31 January 2006 (interim orders) provided that L also live with Ms Kay and Mr Kay and have contact with Ms Jasper, and joined Mr Jasper as the third respondent.
The second orders made in the proceedings, 13 April 2006, provided that L have contact with Mr Jasper on alternate Sundays for up to 2 hours to be supervised at the Sunshine Coast Family Contact Centre, the contact to coincide with the contact between H, N and Y and Mr Green, and for telephone contact.
The orders made on 10 August 2006 provided for L to have supervised time with Mr Jasper “for the maximum amount of time that the Sunshine Coast Children’s Contact Centre can accommodate but no more than three (3) hours each fortnight”.
On 13 April 2006, when the second set of interim orders was put into place, L was then a little over 2 years, Ms Jasper and Mr Jasper having separated more than a year before that.
Mr Jasper, it appears, has not at any stage since the separation with Ms Jasper had unsupervised time with L. (The history, however, between Ms Jasper’s and Mr Jasper’s separation in early 2005 and the orders made in April 2006 is a little unclear).

Principles relevant to this application

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out, and require also consideration of the matters in s 60CC(4)-(6). However, I will make specific reference to these considerations below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the 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 for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

It is not necessary that I refer in detail to the evidence.
Largely, I will deal with the evidence which I consider to be the most relevant and helpful when dealing with the statutory matters which I must consider.
It ought not be inferred, if the evidence of a particular witness or part of the evidence of any witness is not referred to, that I have not had proper regard to all of the evidence.

The principles relating to the “factor of parenthood” – the “parent v grandparent” cases

In respect of cases concerning grandparents, in D & F [2001] FamCA 382, the Full Court (Ellis, Kay and Warnick JJ), examined the application of the principles and cases by Purdy J in that case at first instance, under Purdy J’s heading at first instance “Grandmother v Parent”. See the Full Court’s discussion at pars 28-31 and 45‑57. It is useful to set out pars 30, 31, 55, 56 and 57:
30.His Honour indicated that in Re Hodak Lindenmayer J set out the principle in terms which Purdy J saw as being entirely consistent with Gronow v Gronow (1979) 144 CLR 513, namely that the fact that one party was a mother would merely be an important factor to be considered but did not involve any particular principle.
31.His Honour saw Rice v Miller (above) as indicating the fact that one of the parties is the natural parent is a factor to be taken into account but does not bring into play any particular principle.
…
55.We would agree with the observations of Stephen J in Gronow v Gronow (above) that there is danger in looking too closely to the sociological and psychological writings to determine the foundation of the observation that parenthood is a significant factor in determining with whom children should live. It is precisely this non-demonstrable important factor which was heavily relied upon by Purdy J.
56.There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child’s welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.

57.As the Full Court observed in Rice v Miller (above) at FLC 80,240:
“…the fact of parenthood is to be regarded as an important and significant factor…” ”.

Mr George of Counsel, for Mr Green, submitted forcefully that since decisions such as Hodak v Newman (1993) FLC 92-421, Rice v Miller (1993) FLC 92-415 and D & F (above), the amendments to the Act which took effect on 1 July 2006 should be given effect, in priority to those decisions, which related to the provisions of the Act before those amendments so that the mandate of the statute now, in relation to the best interests of children, is a focus on parents rather than other significant persons so that, consistently with the amendments to the Act, “the only orders consistent with the new provisions” would be that H, N and Y live with Mr Green. Mr George, helpfully, provided in his written submissions references to, in particular, s 60B(1), s 60B(2) and s 60CC(2) and (3), s 61C, s 61DA, s 65DAA(1) and (2), s 64B(2) and other provisions, emphasising the statute’s repeated references to the involvement of parents in children’s lives. (Mr George’s written submissions included, in referring to these provisions, the words “parent” or “parents” in bold, for emphasis).
However, when challenged during argument, Mr George conceded that there is nothing in that analysis to take away from my statutory function, having regard to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child to regard the best interests of the child as the paramount consideration and that, in that exercise, I am required to consider the s 60CC factors, as well as have regard to the underlying objects and principles of the Act.
In Dennett & Norman [2007] FamCA 57 the Full Court (Kay, May and Boland JJ) dealt with a submission (see at par 55) that Rice v Miller (above) had been “statutorily overturned” by the parental responsibility provisions of s 61C. The Court was urged (see at par 56) to decide that “the current line of cases” (including Hodak (above), B & B (Family Law Reform Act 1995) (1997) FLC 92-755, Rice v Miller (above) and Re Evelyn (1998) FLC 92-807) was incorrect.
In dealing with that submission, their Honours referred (at par 59), with apparent approval, to D & F, par 56, set out above and (at par 60) concluded that the trial Judge correctly had applied “settled principles” in that case, firmly rejecting the submission as having no basis:
60.In our view, the trial Judge correctly applied settled principles in the present case. Whilst it might seem that he preferred the grandparents he did so because of the evidence before him including balancing the potential parenting capacities of each party and in our view based on the expert evidence it was entirely clear that he should do so. In view of the very clear provisions of the Family Law Act and the cases to which we have referred we do not see any basis in this argument.
Dennett & Norman was decided on 13 February 2007, after the commencement of the amendments which took effect on 1 July 2006. However, the case was heard on 11 May 2006, before those amendments took effect. Thus, it is plain the Full Court was not considering the subject matter of the submission in light of the amendments which took effect on 1 July 2006. Despite this, even before those amendments took effect, there was a provision in the Act similar to what is now s 60CA (formerly s 65E) providing that in parenting cases the Court must regard the best interests of the child as the paramount consideration.
In my view, although, as put by Mr George, there is a “focus on parents” in the amendments which took effect on 1 July 2006, there is nothing in the new provisions of the Act to displace the principles in the line of cases referred to by the Full Court in D & F and in Dennett & Norman in relation to the factor of parenthood, which the Full Court in Dennett v Norman referred to as “settled principles” (at par 60), especially having regard to s 60B(1) and (2) of the Act, which deal with the objects of the Act and the principles underlying it. In particular, the provisions of s 60B(1) and (2), as they now appear, to the extent that they deal with parents, are themselves in the context of the best interests of the child, and the more general provisions in Part VII dealing with parents are subject also to s 60CA.
The statements of principle in the line of cases referred to by the Full Court in D & F and in Dennett & Norman, in my view, are not inconsistent with the amending provisions, reading the Act as a whole.
I am therefore unable to accept Mr George’s submission that the new provisions to which he referred should be applied “in priority” to the decisions concerning the factor of parenthood which preceded the 1 July 2006 amendments so that “the only orders consistent with the new provisions” would be that H, N and Y live with Mr Green.

The statutory matters

Parental responsibility

H, N and Y

In relation to H, N and Y, the presumption in s 61DA that it is in the best interests of the children for their parents to have equal shared parental responsibility for them applies so that there should be an order for equal shared parental responsibility as between Ms Jasper and Mr Green. In particular, the presumption is not displaced by any of the matters in s 61DA(2). In my view, nor is the presumption rebutted (s 61DA(4)) because of the circumstance that Ms Jasper lives in Melbourne, nor by any conduct by Mr Green affecting the children’s best interests. Further, both Ms Jasper and Mr Green are parents who wish to exercise parental responsibility for the children, in their best interests, and there does not appear to me to be any good reason to deprive the children of the benefit of an equal shared parental responsibility order.
Further, s 64B(2)(c) provides that a parenting order may deal with the “allocation” of parental responsibility for a child, s 64B(2)(d) providing that “if 2 or more persons” (a child can have only two parents) are to share parental responsibility for a child the parenting order may deal with the form of consultations those persons are to have about decisions to be made in the exercise of that responsibility. In this context, “person” is defined for the purpose of that provision (at the end of s 64B(2)) as including a grandparent. It is thus open to me to consider that Ms Kay also have equal shared parental responsibility for H, N and Y, that is, equally with the children’s parents.
In my view, having regard to the history of the matter, including that H, N and Y have lived with Ms Kay now for more than 2 years, and the s 60CC factors, analysed separately below, it is in the children’s best interests for Ms Kay, Ms Jasper and Mr Green to have equal shared parental responsibility for them.
In so deciding, I have considered and taken into account that Mr Read of Counsel, for Ms Kay, sought that only Ms Jasper and Ms Kay have parental responsibility to the exclusion of Mr Green, on the basis that to include Mr Green would lead to endless disputes and resort to the Court; and that Mr Green sought that he have sole parental responsibility, or if the children should live with Ms Kay joint parental responsibility with her. I have considered and taken into account also that Mr Green and Ms Kay in recent times have experienced communication difficulties, and that Ms Kay, on the evidence, has little time for Mr Green at present, although it appears that until early 2007 they communicated well concerning the children.
However, the nature of the major long-term issues, defined in s 4 of the Act to include education, religious and cultural upbringing, health, a child’s name and changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent, in my view, having regard to the history of the matter, are such that both of the children’s parents and Ms Kay should be involved in the decisions relating to such issues concerning the children.
Section 61B provides that parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which by law parents have in relation to children. However, as I have mentioned, by s 64B(2)(c) and (d), “parental responsibility”, as defined, may be allocated to persons other than a child’s parents.
Section 65DAC(2) provides that the effect of an order for shared parental responsibility in relation to the major long-term issues is that the persons exercising the responsibility are to make decisions jointly in relation to those issues, which by s 65DAC(3) requires those persons to consult with each other in relation to the decisions, and to “make a genuine effort to come to a joint decision” about those issues.
Further, s 64B(2)(d) assists the parties by authorising inclusion in an order for parental responsibility, where two or more persons are to share it, the form of consultations which the persons with shared parental responsibility are to have with one another about decisions to be made in the exercise of that responsibility. In this context, during argument, I canvassed with Counsel inclusion in the order that consultation be by letter, email or text, and a provision that if differing views have the result that after consultation a decision is not able to be made, the view of Ms Kay prevail to constitute the decision. On reflection, I have decided against such a “casting vote” provision because in practical terms it would or may have the effect of rendering the consultation process meaningless if Ms Kay had the view that in any event her wish would prevail, thus giving Ms Kay, by default, a form of de facto sole responsibility. I will therefore include in the order, instead, a provision that the form of consultation be either in person, or by letter, email or text and, to obviate or minimise disagreement as to an issue, include that if after consultation and a genuine effort to come to a joint decision it cannot jointly be made, the consultation continue with the assistance of a mediation service or family relationship centre to endeavour to reach agreement. It is appropriate in my view for the parties equally to share the cost of any such attendances.

The presumption in s 61DA does not apply in relation to L because there are reasonable grounds to believe that Mr Jasper has engaged in family violence. In this context, I have referred already to Ms Jasper’s allegations against Mr Jasper of his encouragement of her self harming and that in relation to him she is fearful for her life. It is not necessary, in order to oust the presumption, that there be any finding of family violence, the provision requiring only that there be reasonable grounds to believe that a parent has engaged in family violence. In all of the circumstances, I am satisfied that this provision is met, based upon Ms Jasper’s assertions and the incidents which occurred while she was in the witness box, which I have described.
However, the ousting of the presumption does not have the effect of precluding consideration of whether, in any event, an order for equal shared parental responsibility would be in a child’s best interests.
In my view, having regard to the history of the matter, including that L has lived with Ms Kay now for more than 2 years, and the s 60CC factors, analysed separately below, it is in L’s best interests for Ms Kay, Ms Jasper and Mr Jasper to have equal shared parental responsibility for her. In particular, the circumstance that Ms Jasper lives in Melbourne does not have the effect that she cannot ably participate in the major long-term decisions concerning L, and there is no evidence that any conduct by Mr Jasper, in relation to Ms Jasper, has or may be likely to impact upon L’s best interests in relation to any shared parental responsibility for her. Further, both Ms Jasper and Mr Jasper are parents who wish to exercise parental responsibility for L, and there does not appear to me to be any good reason to deprive the child of the benefit of an equal shared parental responsibility order.
In so deciding, I have considered and taken into account that Mr Read of Counsel, for Ms Kay, sought that only Ms Jasper and Ms Kay have parental responsibility for L, to the exclusion of Mr Jasper, Mr Read contending that it would be “inconceivable” for Mr Jasper to be involved, having regard to all of the circumstances, and that to include Mr Jasper would lead to endless disputes and resort to the Court. However, the nature of the major long-term issues, to which I have referred already, in my view, having regard to the history of the matter, has the result that both of L’s parents and Ms Kay should be involved in decisions relating to such issues concerning L. I have referred already to the meaning of parental responsibility provided in s 61B; and the effect of ss 65DAC(2) and (3) and s 64B(2)(d) as to the nature of the consultation process and the form of order which may make specific provision as to the form of the consultations.
As to the consultation process concerning L, Ms Jasper’s fear of Mr Jasper and her inability to have direct contact or communication with him, evidenced by the incidents which occurred in the courtroom, which I have described, has the effect that there should not be any in person or other direct communication between Mr Jasper and Ms Jasper, but that their views in relation to the major long-tem issues concerning L be communicated through Ms Kay. It would be appropriate also to include a provision that the consultation continue with the assistance of a mediation service or family relationship centre if, after consultation themselves, a joint decision is unable to be made, to endeavour to reach agreement; but to provide that in any consultation process only Ms Kay and Mr Jasper attend, with Ms Jasper’s views to be communicated through Ms Kay. It is appropriate that the parties equally share the cost of any such attendances.

Issues which are not major long-term issues

The orders which I propose to make for equal shared parental responsibility will not require the parties to consult on matters which are not major long-term issues (such as clothing and food for the children, while with each of the parties). This is made plain by s 65DAE.

Equal time

Section 65DAA(1) of the Act provides that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child, then I must consider whether the child spending equal time with each of the parents would be in the child’s best interests and reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each of the child’s parents.
In Goode & Goode (2006) FLC 93-286, the Full Court said (par 64) that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider positively the making of an equal time order.
Thus, it is incumbent upon me first to consider whether the children spending equal time with each of their respective parents would be in their best interests, approaching that consideration positively.
In order to determine this aspect of the matter, I must turn immediately to the factors set out in s 60CC of the Act which, as I have explained, are the statutory factors I must consider in determining what is in a child’s best interests.

The children’s best interests – the statutory factors
Section 60CC(2) - the primary considerations

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

On all of the evidence, there is benefit to the children of having a meaningful relationship with each of their respective parents.
Although, as is common ground, the children will not be able to live with Ms Jasper, because of her particular difficulties, or the children have unsupervised time with her, there is no doubt that she can and does offer the children love, although she is unable to care for them.
There is benefit for H, N and Y in having a meaningful relationship with Mr Green, and benefit for L in having a meaningful relationship with Mr Jasper.

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

It is common ground that, having regard to Ms Jasper’s particular difficulties, the children ought not live with her and, as I have mentioned already, it is common ground that all time the children spend with Ms Jasper be supervised by Ms Kay, Mr Kay or another responsible adult approved by Ms Kay.
There is evidence that on some occasions Mr Green may have neglected each of H, N and Y.
In relation to H, there is evidence that he would like to go fishing with Mr Green, H reporting to Ms M, social worker and the family report writer (second report, par 72) that Mr Green had told H to “ring up if he wants to come over and go fishing”, which is quite a different thing from a boy’s father instigating such an activity.
N reported to Ms M (second report, par 83) that when spending time with Mr Green and his new household (comprising also Ms W and her two children) she sometimes “gets missed out” and in reference to this “spoke about her and [Y] spending time together as the boys usually play together and her father is with [Ms W]” which in my view is a form of neglect.
In relation to Y, there is the circumstance of her reporting to Ms Kay that she had been left unattended at a beach and had become caught in a rip when “Dad was miles away with [Ms W]”, reporting to Ms Kay “Nanny, I nearly drowned”, moving Ms Kay to say in her oral evidence “I will never forget that child’s eyes and face, she burst into tears, it was frightening, horrible”. Y reported also to Ms M (second report, par 91) that (seemingly or the same occasion) she had been “knocked over by a wave” and had a tick behind her ear but Mr Green refused to take her to the hospital or a doctor.
Mr Green and Ms W deny Y’s report to Ms Kay of nearly drowning, expressing adamantly that while at the beach they were in very close proximity to the children at all times.
Ms M (second report, par 90) referred to Y’s diary as to her experiences at Mr Green’s home and said that “The themes in [Y]’s diary reflected those similar to her siblings and described such things as her disappointment in the time and attention she receives from her father due to him spending most of his time with [Ms W]” and referred to “[Y]’s perception that her father does not adequately and safely care for her”, adding “[Y] attaches feelings of either sadness or badness to these experiences with her father”.
There is no evidence of abuse or family violence relating to Mr Green.
There is, as I have mentioned already, reference in the evidence to the possibility that while in the United States, Mr Jasper may have been involved with child pornography and possibly child sexual abuse, but that the evidence relating to this aspect of the matter largely was hearsay and conjecture, thus inherently unreliable and certainly not of a nature which would allow a trial Judge in Australia to make findings.
However, there is no evidence that Mr Jasper has subjected or exposed L to any abuse, or evidence upon which properly I could conclude or infer that there is any present need to protect her from being subjected to, or exposed to abuse, neglect or family violence.
There is a “shadow”, and thus perhaps a doubt, as to this aspect of the matter, having regard to Ms Jasper’s reports of violence by Mr Jasper to her, in the manner described already, and the references in the evidence to Mr Jasper’s United States history.
However, such a “shadow”, or doubt, is insufficient to conclude that there a need to protect L in Mr Jasper’s care, supervised or unsupervised, the relevant statutory provision being directed to “need”.

Section 60CC(3) – the additional considerations

The children’s views

H expressed to the family report writer that he would like to have more time with Mr Green “if this time involves them sharing common interests and spending time together” (second report, par 75). In this context, H said to Ms M (second report, par 72) that the time Mr Green spends with him “has changed since he has moved in with his partner, [Ms W]”, that Mr Green “spends most of his time with [Ms W]” and that during the time he spends in Mr Green’s home he mainly “plays with Dad’s children (Ms W’s children…).
Ms M reported (second report, par 78) that H “expressed views about his living arrangements which clearly indicate he is aligned with his mother and grandmother” and “commented that he wants to live with his mother and “Bigger Nanny” (a reference to Ms Kay) and visit with his father in the school holidays”. Ms M further noted (pars 79-80):
79[H] commented that his father has asked him if he wants to stay with him but he has told him he, “Doesn’t know”. When asked if he had any views about living with his father [H] stated, “I want to see my mum a lot more”. When asked at a later opportunity again [H] expressed, “I don’t want to live with him but I want to see him. I can’t imagine what it would be like to live with Dad”.
80In response to exploratory questions about his future care arrangements [H] expressed a range of concerns. He commented, “I’ve had enough”. He raised again the upset his grandmother experiences in negotiating arrangements with his father, that he doesn’t like counselling, that he misses his mother a lot, and sometimes he doesn’t want to see his father. During this discussion [H] identified his relationship with his grandmother as one which represents stability in his life. [H] expressed, “I’ve always lived with Bigger Nanny since my parents separated and she’s always looked after us”. (emphasis added)
In relation to H’s views, I refer also to the report by his counsellor, Ms Q, annexure B to her affidavit filed on 30 October 2006.
N reported to Ms M (second report, par 84) that she would like Ms Jasper “to return to live with them”. She said (second report, par 85) that she “likes living with her grandmother”. Ms M reported (pars 87-88):
87[N] acknowledged feeling some divided loyalties in regard to her parents and grandparents and expressed, “I want to spend time with Dad but I might not be able to see Mum and Nan”. [N] described her experiences of the relationships between these adults as “Not good”. She reported that she did not see them arguing and they didn’t talk to her about this but she was aware that they did not talk.
88In summary, [N] presents as somewhat guarded in her comments about her relationships within her family. It is also evident that [N] does not want to choose between her parents and would seek to contribute to enjoy relationships with all of her family members. [N]also identifies that she is settled and happy in her current living arrangements with her grandmother and the surrounding social and school environment. [N] has expressed a preference for her mother to be a part of her current living arrangements with her grandmother.
Y expressed to Ms M (second report, par 92) that she wants to “stay with Nan and play with [L]”, and said that Y’s explanation for this is that, “I like living with Nan, it’s fun, she looks after us and I feel safe”. Y also expressed to Ms M (second report, par 93) that she wanted to live with Ms Jasper, but “also expressed concerns that she didn’t know how she would get to see her father”. Ms M said (par 95):
95In summary, [Y’s] views expressed in this assessment indicate a need to be loyal to both parents and a preference to remain in her current living arrangements with her grandmother. Her comments also suggest some problems in her relationship with her father which while I accept this may be due to Mrs [Kay’s] negative views of Mr [Green], it is also of concern that Mr [Green] is not helpful in assisting [Y] resolve the difficulties she perceives between them.
In summary concerning H, N and Y, Ms M said (second report, par 125):
125Whilst the three children, [H], [N] and [Y] expressed views that they wished to maintain a relationship with Mr [Green] the children also clearly expressed a preference for a continuing regime of spending time with their father rather than to live with their father full time. … (emphasis added)
Ms M said in relation to L (second report, par 105) that Ms Jasper commented that L had come to consider the Contact Centre as “Daddy’s house”.
L, at 3½ years at the time of the trial, is too young to express meaningful views.

The nature of the children’s relationships

Ms M described H (second report, par 78) as being “aligned” with Ms Kay and Ms Jasper, N (second report, pars 87 and 88) as having “divided loyalties” in relation to her parents and grandparents and as wanting to “continue to enjoy relationships with all of her family members” and Y (second report, par 92) as feeling “safe” with Ms Kay but (par 93) having “divided loyalties” in relation to Ms Jasper and Mr Green.
H, N and Y each expressed to Ms M difficulty in their relationship with Mr Green.
H expressed his as being related to Mr Green spending “most of his time” with Ms W (second report, par 72) and being “unable to express his concerns or views to his father as he doesn’t know what he might say in response” and “He might be mean to me’” (second report, par 71), Mr Green in H’s view “spoiling” Ms W’s children with H commenting that “They have better clothes than him” and that Mr Green “supports them and not us” (second report, par 74). H said to Ms M that Mr Green “puts down Bigger Nanny and teases her about the way she is and puts a pillow under his shirt and says “I’m Bigger Nanny” (second report, par 76).
N expressed difficulties with Mr Green being related to getting “missed out” in Mr Green’s household (second report, par 83), Mr Green “mimicking” Ms Kay which made N “feel sad and annoyed but she didn’t say anything to her father” (second report, par 83) and an incident concerning N receiving a softball trophy which she wanted to take back to Ms Kay’s home “but was not allowed by her father” (second report, par 85), Mr Green saying in his oral evidence to the effect that he wanted to keep the trophy because he did not have mementos of the children.
Y expressed difficulties with Mr Green as being related to “disappointment at the time and attention she receives from her father due to him spending most of his time with [Ms W]” and “[Y’s] perception that her father does not adequately and safely care for her” (second report, par 90), N having observed to Ms M (second report, par 83) that Mr Green sometimes says “mean” things to Y.
Despite that, Ms M observed positive interaction between Mr Green, H, N and Y (second report, par 98). For context, however, I will set out pars 96-99.
96During observations for the purpose of this report I observed the children separately with each parent, the grandparents and together with their siblings. The children appeared settled and relaxed with each of their parents and the grandparents and there were little marked differences.
97During the children’s time with their mother [N] appeared more outgoing and to enjoy and seek out her mother’s attentions. Ms [Jasper] engaged [H] in conversation about aspects of his routine and interests and [H] was forthcoming in his responses to his mother’s questions. [Y] played independently during this time. Ms [Jasper] was responsive and appropriate in her interactions with the children. In general observations over the course of the day the children appeared to demonstrate a preference towards their mother’s attention.
98The children were somewhat more quiet in their interaction with their father as they initially engaged in the same game they had played together during their previous attendance. There was no conversation between Mr [Green] and the children extraneous to the game. The children appeared happy to include [Ms W] and the two boys in this time. There appeared no tensions between the children’s interactions with each other and Mr [Green] intervened to suggest to the children taking turns and they appeared to enjoy for a short period everyone being involved in the one game. [N] and [Y] later chose to put on a puppet play and there was positive attention from everyone for this.
99During the children’s time with the grandparents the two older children were more independent in their interactions and [Y] sought her grandmother’s attention to play with her. The children were responsive to their younger sibling [L] who was also attention seeking in her behaviours and was the main focus of her grandmother’s care.
Ms M observed (second report, par 104) that L referred to Ms Jasper as “Mumma” and referred to Ms Jasper’s view (“Ms [Jasper] admits”) that her bond with L “has been affected by her absence”.
Ms M said (second report, par 102) that although L’s parents separated when she was 1 year, it appears that she has been able to maintain a bond with each of her parents despite disruptions to her attachments “due to the dynamics of her family situation”.
As to Mr Jasper, Ms M said (second report, par 103) that L separated with ease from Ms Kay to go to Mr Jasper and “smiled in recognition of her father and appeared confident in approaching him”, adding that Mr Jasper “was affectionate and playful in his interactions with [L] and his choice of toys was appropriate to [L’s] age”.
As to the sibling relationship between L and her older siblings Ms M said (second report, par 106) that L appeared to enjoy the attention of her older siblings and that in Ms M’s view “it is important that the positive contributions that her sibling relationships offer to her development and functioning continue to be nurtured in her future care arrangements”.
Ms M observed (second report, par 130) that “Opportunities for the children to remain together as a sibling group are associated with them living with either Ms [Jasper] or the grandparents”. (my emphasis)
In relation to H, I refer again to Ms Q’s report, in which H described his relationships to her.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

In this analysis, I will include reference to Ms Kay’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their respective fathers, for two reasons. First, it is common ground that the children should not live with their mother, Ms Jasper. Secondly, Ms Kay’s application (contested by Mr Green and Mr Jasper), is that their respective children should live with each of them.
Ms M said (second report, par 13) that at interview Ms Kay reported a “litany of complaints associated with Mr [Green’s] inability to provide safe care” for his children and (second report, par 17) that she is “rigid in her negative views and mistrust” of the parenting capacity of either Mr Green or Mr Jasper, adding (second report, par 20) that “Underlying the grandparent’s negative views of each of the fathers is their continued disapproval of the fathers’ lack of financial support towards their children”.
In her oral evidence, Ms Kay explained that she had little time for Mr Green because even though she got on very well with him earlier, since early 2007 he had put attention to Ms W ahead of attention to H, N and Y, and that his attitude to her now had become abusive, for example, calling her a “fat lazy arsed bitch”, resulting in her experiencing difficulty since early 2007 in negotiating with Mr Green in relation to the children, emphasising that before early 2007 “it was great, it was wonderful” but that in early 2007 “everything changed, he stopped ringing [H] to go fishing, he was not spending any time with the children because of his new partner”, the children reporting to her after spending time with him “We did nothing with Dad, he spent the time with [Ms W]”. She said nonetheless that “I’ve told the children you are welcome to go to your Dad’s as often as you want”, and had encouraged that. She said that, for example, when Mr Green cancelled his scheduled time with the children on the weekend of his birthday, 6-8 July 2007, she arranged for Mr Green to have the children for a shorter time that weekend but that Mr Green had reneged on the arrangement.
Ms Kay was challenged that she has told the children Mr Green is a liar and tells lies, as to which she said that, on occasions, she has pointed out to the children when lies have been discovered because “I like the children to be truthful” adding however that “[H] has worked out for himself that his father lies”. In this regard, I would refer to Ms Mr’s observation (second report, par 76) that “[H] reports that he went to speak with the school principal with his grandmother and it was found not to be true that his father had spoken with the principal”, which apparently was a reference to an alleged earlier representation by Mr Green that he had done so.
Ms Kay said that, presently, she and Mr Jasper “get on fairly well” and “We’ve been able to talk better when he comes around” but that in order to get on better with Mr Green, “He has to stop abusing me and calling me a lazy arsed bitch” and has to “talk to me civilly”, adding that she would “like to get back to that”.
Ms Kay denied that her attitude to Mr Green “rubs off on the children”, so that although (as was put to her) they have a good time with him they feel obliged to complain to her about him when they return from spending time with him, adding that the children “still go, but they are not getting any one on one time with him” but that if it could “get back” to what it was like before Ms W came into Mr Green’s life “it’d be great”.
Thus, as I understood her oral evidence, despite Ms M’s observations as the result of her interviews, Ms Kay in fact is willing and has the ability to encourage a close and continuing relationship between H, N and Y and Mr Green, but is frustrated by Mr Green’s inability to give the children proper attention while they are with him, which upsets the children.
Ms M said (second report, par 13) that Mr Kay was incredulous that if the children remain living with him and Ms Kay, he and Ms Kay should continue to support the children’s relationships with their respective fathers. However, in his oral evidence Mr Kay explained “I’m not saying he (Mr [Green]) can’t look after his kids” but that in his view Mr Green did “not really” have anything to offer them because “emotionally they get pretty hurt when they go around there”.
As to L, Ms Kay said in her oral evidence, in response to a question from Mr Jasper, that she considered L’s time with him should be supervised because “My opinion is if you don’t get what you want, you could take off” meaning, abscond with L, and “I’ve seen you overdose on tablets with [Ms Jasper] when you slept for 1½ days! That’s my concern!”. Ms Kay, under Mr Jasper’s cross examination, referred to his alleged absconding in the United States with one of his children, to which Mr Jasper said “I did not abscond” on the basis that the relevant child (seemingly X or Z) was “in my care”. Ms Kay said that she would not be willing for L to spend unsupervised time with Mr Jasper “until she’s old enough to talk and verbally scream ‘HELP’, if he attempted to abscond with her, and that she considered that supervised time for two hours in each fortnight was “enough to develop a father/daughter relationship”. Ms Kay emphasised that L loves to see Mr Jasper, and said to Mr Jasper “She knows you’re his Dad”, referring to L’s return from spending time with him saying “Look what Daddy ‘buyd-ed’ me” (obviously, a bought gift) and saying to N and Y “You’ve got your own Dad”. Ms Kay agreed with Mr Jasper that, while all four children had been in his care during the period of his relationship with Ms Jasper, he had never physically harmed any of the four children.
Ms Jasper, it would appear, sees no benefit in L having a relationship with Mr Jasper.
Mr Green, it appears, does not trust Ms Kay, and is of the view that Ms Kay and Ms Jasper are against any relationship between H, N and Y with him and deliberately malign him to the children. In relation to Ms Jasper, he referred to the period of “more than three years” (seemingly January 2003 until April 2006) during which he said Ms Jasper did not allow H, N and Y to spend time with him, which evidence was supported by Mr Jasper who said that, during his time with Ms Jasper (early 2003 until early 2005) her attitude was that she did not care about court orders, and was not going to comply with them. (This seems to be a reference to Ms Jasper having ceased time between H, N and Y and Mr Green in January/February 2003, despite the Court orders made on 5 October 2001 then current, because (according to Ms Jasper) Mr Green was not paying child support).
However, as it is common ground that the children should not live with Ms Jasper, it is more important to consider Mr Green’s complaint, as expressed, that in his view Ms Kay and Mr Kay have “adopted the mother’s views”, so that “neither grandparent will support a continuing relationship” between H, N and Y and Mr Green, with the effect that, according to the submissions of Mr George of Counsel, for Mr Green, if the children should live with Ms Kay and Mr Kay, they will be “alienated” from Mr Green because of the “extraordinary negative views held and expressed” by them, and that the practical consequence is that Mr Green will become “marginalised from playing a role in the children’s lives”.
Against this however, is Ms Kay’s evidence, to which I have referred, that “it’d be great”, if only Mr Green would spend one on one time with the children, and the reality that, when Mr Green unilaterally cancelled the scheduled time the children were to spend with him on his birthday weekend, as recently as 6-8 July 2007, he then reneged on a substitute arrangement for the children to spend a shorter time that weekend with him. Ms Kay referred to the circumstance that the children had made a card or cards or gifts for Mr Green’s birthday for that weekend, but that “to this date” (the time of the trial) they had even yet not been given, inferring that the children thus lost interest in giving to Mr Green whatever they had prepared to give him because unilaterally he had cancelled his birthday time with them.
Mr Green said, in his oral evidence, that he had cancelled his birthday weekend with the children because of a (temporary) difficulty in his relationship with Ms W. Despite this, it is plain that Ms Kay, nonetheless, was prepared for Mr Green to see the children (thus encouraging the relationship between H, N and Y and Mr Green), but that it was Mr Green who reneged on the substitute arrangement. See exs 3-6.
In summary, although there are difficulties in relation to the willingness and ability of the adults in the children’s lives to promote the children’s relationships with each other, “there are other factors regarding the fathers’ capacities which need to also be held in balance with this concern”, as observed by Ms M (second report, pars 118-119):
118In my opinion the grandparent’s loyalty to Ms [Jasper] and desire for the children to return to their mother’s fulltime care has limited their capacity to involve the fathers in a cooperative parenting relationship. It is evident in Mrs [Kay’s] behaviours and attitudes towards the fathers that she shares Ms [Jasper’s] negative views of Mr [Green] and Mr [Jasper] as incompetent fathers and there are risks associated with their care of the children.
119I accept that neither of these parties, Ms [Jasper] or Mrs [Kay] have any positive regard for the fathers and there are questions about their capacity to promote the children’s future relationships with Mr [Green] and Mr [Jasper] in the longer term. However, in my opinion there are other factors regarding the fathers’ capacities which need to also be held in balance with this concern.

In this regard, however, specifically I would refer to my analysis of the parenting capacities (“capabilities”) of, on the one hand, Mr Green and Ms Kay, and, on the other hand, Mr Jasper and Ms Kay, which analyses, in my view, do not indicate in this particular case that, in the balance, the greater weight necessarily should be given to the factor of parenthood so as to “tilt the scales” in favour of the children’s respective fathers, bearing in mind always the children’s best interests.
Having regard to all of the evidence (whether or not specifically referred to), all of the submissions (whether or not specifically referred to), the objects of the Act and principles underlying it, the “factor of parenthood”, as analysed above, and the statutory matters I am required to consider, as analysed above, in my view the children’s best interests would be served by living with Ms Kay and Mr Kay, spending designated time with their respective fathers, which I will specify, and such supervised time with their mother as may be able to be arranged.
As to H, N and Y, Mr Read of Counsel, for Ms Kay, and Mr Middleton of Counsel, for Ms Jasper, submitted that the time the children should spend with Mr Green should be day time only, and I am mindful of Ms M’s recommendations in this regard. However, having regard to all of the matters which I am required to consider, I am not persuaded that the best interests of H, N and Y would be served by reducing the time they presently spend with Mr Green, and in my view that time should be, as occurs at present, on alternate weekends from after school on Friday until 5pm on Sunday; plus time after school on one afternoon each week for 4 hours, as “one on one” time for each child with Mr Green, on the rotating weekly basis (that is, each child for 4 hours after school in each third week); and half school holiday time; but with the requirement that Mr Green must ensure that the children not miss any of their scheduled sporting and extra curricular activities.
As to L, although I have determined that there is not an unacceptable risk, as defined in the authorities, for L in spending unsupervised time with Mr Jasper, I am persuaded by Mr Jordan of Counsel, for the independent children’s lawyer, that as L (it appears) has not spent unsupervised time with Mr Jasper since his separation from Ms Jasper, there should be an introductory regime for unsupervised time, which I propose to include in the orders in the form set out in the draft orders provided by Mr Jordan who, as L’s Counsel, submitted that L ultimately spend unsupervised time with Mr Jasper on the basis set out in the draft orders.
I have mentioned holiday time for H, N and Y to spend with Mr Green.
Having regard to L’s age, in my view, in her best interests she should not as yet spend specified holiday time with Mr Jasper, but rather her routine of spending time with him be continued throughout each year, subject to any further time, including holiday time, as may be agreed between Ms Kay and Mr Jasper. It may be that, by the time L commences prep or school it would be in her best interests for this to change, so that there be specified holiday time with Mr Jasper. However, it would be premature to decide this aspect of the matter having regard to L’s age, and at this stage this aspect of the matter is best addressed by including in the orders that L (and indeed H, N and Y) spend such other time with their respective fathers as may be agreed between the respective fathers and Ms Kay.
I have mentioned the possibility of an Airport Watch Alert concerning L, as to which I will hear argument before pronouncing the final orders.
It was urged upon me that H, N and Y not spend overnight time with Mr Green until he has provided to Ms Kay evidence of completing a Triple P parenting course; an undertaking that he would ensure that he take the children to their sporting activities and extra curricular activities; and evidence (in the form of a lease) that he has secured 4 bedroom accommodation for a minimum period of 6 months (further conditioned that subsequently he maintain such accommodation); an undertaking that one furnished bedroom be set aside exclusively for use by N and Y and that “a” bedroom be provided for H, to be shared as necessary with “children of similar age” (plainly being a reference to O and/or R); and that he clear his arrears for child support liability “and thereafter remain in credit”.
It was urged that, after Mr Green has fulfilled these conditions, H, N and Y spend time with him on alternate weekends from 10am on Saturday until 6pm on Sunday for the period of six months; and after that (subject to maintenance of the conditions referred to) the time be increased to alternate weekends from 4pm on Friday until the commencement of school on Monday. However, having considered these proposed conditions, it seems to me they are too prescriptive as a “set” of conditions, and may be likely to lead to discord and potentially thus further litigation. I have however included, as mentioned, a requirement that Mr Green ensure that the children attend their sporting and extra curricular activities. Mr Green’s child support liability is a matter for enforcement by the Child Support Agency. Mr Green is to be encouraged to complete a Triple P parenting course. He has stated already that he and Ms W propose in any event to obtain a larger rental property capable of accommodating his and her children, collectively five in number. In my view, it is a matter for Mr Green to address these aspects of the matter as part of his parenting role, and also critically to address his conduct in relation to the children’s expressed difficulties in their relationship with him as spelled out in Ms M’s report, instead of blaming Ms Kay and Mr Kay for the difficulties the children experience with him. Otherwise, he may well find that in the future the children will “vote with their feet” and not wish to continue spending time with him. Thus, it seems to me that in the future this is very much a matter now in his own hands to address his proper parenting role for the children.
As to all other matters relating to special days, telephone communication, the use of a communication book, changeover, information and the like, largely there was not great difference in the parties’ respective submissions and draft orders which, helpfully, Counsel provided, and the orders I have framed include such matters, largely drawn from various of the sets of draft orders provided.

H, N and Y’s surname

The mother’s maiden name is Kay.
H, N and Y are enrolled and known at school by the surname Kay aka Green (aka being the short form for “also known as”). They are however generally known and called by the surname Kay not only in their school environment but also amongst their peers and for all extra curricular, sporting and social activities. This has been the case since about mid 2006, that is, for about a year at the time of the trial. For example, the children’s school reports are in the surname Kay (see annexures SKA3, 4 and 5 to Ms Kay’s affidavit), and recently sporting trophies won by the children were engraved with the surname Kay.
The children were born Green, which is still their formal surname for all legal and other purposes eg Medicare, Centrelink Health Care Card, Child Support Agency and medical and health appointments.
Some time after Ms Jasper married Mr Jasper in about mid 2003, the children were called Jasper. Some time between Ms Jasper and Mr Jasper’s separation in early 2005 and about mid 2006, Mr Jasper requested of Ms Kay that the children no longer be known by his surname, which he considered inappropriate. By this stage, the children had been known as Jasper for about 2 to 3 years.
Ms Kay, it seems, raised the matter with H, who said he did not want to be known as Green because of teasing he had experienced earlier when known by that name (seemingly at least 3 years earlier) and that he would prefer to be known as Kay.
N said to Ms M that no one had asked her about changing her name. Ms M observed that N reflected that it had been Green then Jasper and now Kay, and said that N “stated that she didn’t know why it was changed and she didn’t like it when it was [Jasper] and she would prefer [Kay]” (second report, par 86).
The evidence is not clear as to any discussion with Y.
In any event, it is clear that the change of name at school was effected by Ms Kay attending at the school and requesting the change to Kay aka Green, and that the children generally now are called Kay, which had obtained, as I have said, for about a year at the time of the trial.
It is common ground that before effecting the changes referred to, Ms Kay did not consult Mr Green.
Mr Jordan of Counsel, for the independent children’s lawyer, said that whilst the independent children’s lawyer had no firm view she “leaned towards” the children being known as Green, because despite the aspect of teasing that was their birth name and would assist the children in the important matters of paternal identity and association.
Mr George of Counsel, for Mr Green, emphasised that unless the children are known as Green, Mr Green will become more marginalised in their lives and their identity with him as their father threatened. He urged that the reality is that the children’s birth surname is Green, and that particularly having regard to the children’s history of already having been known by three surnames, it is imperative for their stability and identity that from now on for all purposes they be called and known by their proper surname, that is their father’s surname, so that the children not suffer confusion both in a practical sense and more importantly in relation to their identity. As to teasing, Mr George submitted that this is part of “the experience of childhood” and that there are many surnames which easily admit of teasing but that such a propensity or even likelihood ought not stand in the way of “proper identity” and the “proper use of one’s own birth surname”. He echoed Mr Green’s evidence of the reality of Green being the children’s birth surname and thus their “proper surname”, that evidence being to the effect “We are all given a last name when we are born”, and that the use of the birth surname is a “matter of propriety”. In his evidence, Mr Green had said that as the children’s father he did not approve of the use of the name Kay even if (as was put to him) the children may be “comfortable” with that name. Mr Green was insistent that any aspect of teasing in relation to a surname ought not outweigh the importance of using one’s own and proper surname, which is a matter about which he as their father feels very strongly.
Mr Middleton of Counsel, for Ms Jasper, urged that there not be any order in relation to the children’s use of a surname. He urged that having regard to the emotional turmoil the children already have suffered and are suffering relating to their parents’ separation and divorce, their mother’s remarriage and its breakdown, their mother’s ill health and existing conflict in relation to their living and parenting arrangements between and amongst the adults in their lives, their welfare would be served in relation to the name issue by “leaving well enough alone”, in that it would not be appropriate for the children’s welfare now to have “yet another change” in their lives. Mr Middleton referred in particular to the circumstance that H, at 13 years, is “fed up with conflict” and does not want to be known as Green. He submitted that because it would not be appropriate for H’s welfare to suffer another change of his called or known surname now, that would seem to indicate that N and Y not have a further change now either, so that the three siblings be called or known by the same surname.
Mr Read of Counsel, for Ms Kay, submitted also to the effect that “the children have had enough” and on the evidence are “comfortable” with being known as KY.
Generally, there was discussion also as to the prospect of embarrassment for the children if they should now be required to be called and known by a name other than that by which they currently are called and known; and as to whether it may be viable for the children’s “formal” surname to be Green, but nonetheless they continue to be called and known as Kay. As to this however Mr George submitted that there would be inevitable embarrassment if at school the children continued to be known as Kay, but their enrolment name be recorded as Green so that at “roll call” the surname Green was used. Indeed, there was evidence of such a circumstance occurring when H had visited a doctor, and been called for in the waiting room “[H Green]”, causing him either embarrassment, discomfort or annoyance.

The law and principles concerning a child’s surname or change of name

Section 68B(1), in Division 9 of the Act, provides (relevantly) that if proceedings are instituted for an injunction in relation to a child, the Court may make such order or grant such injunction “as it considers appropriate for the welfare of the child”.
It is established in the authorities that it is this provision which is invoked where applications are made concerning a child’s surname or change of surname.
“Welfare” is defined in the Australian Concise Oxford Dictionary (relevantly) as “satisfactory state, health and prosperity”. “Appropriate” is defined (relevantly) as “suitable or proper”, and “consider” (relevantly) as “contemplate mentally”, “weigh merits of”, “give mental attention to”.
The statutory mandate in s 68B(1) thus would seem to require giving mental attention to and weighing up the merits as to what is suitable or proper for the children’s satisfactory state, health and prosperity.
In Flanagan and Handcock (2001) FLC 93-074 (Full Court) the majority, Kay and Holden JJ, observed that Monticelli v McTiernan (1995) FLC 92-617 was decided when s 64(1) of the Act required the Court to consider the welfare of the child as the paramount consideration, whereas in 2001 (as is the case now) the relevant provision requires the Court to regard the best interests of the child as the paramount consideration so that, as is plain, there is no longer coincidence of expression between the paramountcy provision and the injunctive power provision. The majority observed further that nowhere in Division 9 does the expression “best interests of the child” occur, so that it would appear that Monticelli “no longer represents the law in respect to this question”. Nonetheless, their Honours went on to refer to “the constant shadow of the paramountcy principle” as discussed by the Full Court in CJ v VJ (1997) FLC 92-772; upheld by the High Court in CDJ v VAJ (1998) 197 CLR 172 at pars 87-88 per McHugh, Gummow and Callinan JJ and pars 191-2 per Kirby J (but on quite different reasoning from McHugh, Gummow and Callinan JJ).
For my part, it is clear that their Honours McHugh, Gummow and Callinan JJ upheld the appeal only in the context of relevance of the principle in the appellate process in respect of cases where the principle was relevant at first instance, making clear I think its limitation otherwise. See at pars 87-88.
Returning now to Flanagan and Handcock, in the result, their Honours in the Full Court said at par 18:
18We are inclined to the view that to the extent his Honour might have been considering the issue of name change pursuant to s 68B, his Honour was incorrect in indicating that the paramountcy principle applied. …
Their Honours went on however to say:
… Even so, in light of the decision of CDJ v VAJ (supra), notwithstanding that there is no express reference to Division 9 in the balance of Part VII of the Act, as the orders sought to be made intimately concerned the welfare of the children, the best interests principle needed to be given careful consideration. However, given that this was not the subject of a ground of appeal and given that it was not a matter that was properly argued before us, we do not express a concluded view. (emphasis added)
In the same case, Finn J at pars 50-52 said that she was not persuaded that the trial judge’s reference to the “best interests” concept or test was wrong, but observed that the question was unsettled as to the extent to which (if any) the paramountcy principle applied to the injunctive power under s 68B(1).
In Flanagan, the High Court granted, but then revoked, special leave to appeal. See Flanagan and Handcock (2001) 181 ALR 184.
In Bennett v Bennett (2001) FLC 93-088 the Full Court (Ellis, Finn and Guest JJ) said:
30…[T]he current power in s 68B to grant an injunction in relation to a child is not subject to the express legislative requirement that the court must regard “the best interests of the child as the paramount consideration”, and in this regard is to be contrasted with the powers, for example in s 65E to make a parenting order, or in s 67ZC to make an order in relation to the welfare of a child. (emphasis added)
Notably, however, their Honours said that s 68B is not subject to the express legislative requirement that the Court must have regard to the paramountcy principle, thus leaving open whether generally, in having regard to a child’s welfare, consideration of a child’s best interests may nonetheless be a relevant matter to consider. (In Flanagan Finn J at par 50 similarly had referred to the absence of express application in the legislation of the principle to s 68B(1)).
In B v B(Re jurisdiction) (2003) FLC 93-136, the Full Court (Holden, Coleman and Warnick JJ) observed (at par 30) that since the 1995 amendments there had been several cases in which the opportunity to find some pervasive general principle of the paramountcy of the child’s best interests in any decision about any matter involving a child’s interests had arisen, but not been taken up.
In KN & SD & Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2003) FLC 93-148, the Full Court (Nicholson CJ and O’Ryan J at par 37; Ellis J at par 121) referred to concessions by Counsel in that case that the trial judge’s finding that the paramountcy principle does not apply in relation to injunctions sought under s 68B(1) of the Act is “consistent” with the majority judgment of the High Court in CDJ v VAJ (above).
In Johnson & Page (above), at par 109, the Full Court referred to the circumstance that the cases offer “little guidance” in the case law referring specifically to the general principles to be applied under s 68B (compared with s 114), but said:
The power to be exercised is a discretionary power only to be exercised in an appropriate case.
Section 67ZC(1) of the Act is a provision which confers jurisdiction on the Court to make orders concerning the welfare of children.
Section 67ZC(2) expressly provides that in deciding whether to make an order under s 67ZC(1) in relation to a child the Court must regard the best interests of the child as the paramount consideration.
There is an impediment to interpreting s 68B(1) as being governed by the paramountcy principle for the reason that, if that is what the legislature intended, it would have been easy to say so. (See also, eg, s 67L, relating to location orders, and other provisions expressly invoking the principle).
The matter is I think one long overdue for reference to the Attorney-General.
Leaving aside for the moment the question whether, under s 68B, a child’s best interests are (1) not relevant; (2) relevant but not paramount; or (3) paramount, which is controversial, there is little controversy as to the factors which may be appropriate to be taken into account in cases concerning a child’s name or change of name. In Flanagan, in the Full Court, the majority at pars 36-38 examined some of the authorities as to the matters which frequently need to be considered in deciding whether to permit or prohibit a change of name, prefacing that analysis (at par 35) with the observation that:
35… The most significant feature that appears from those cases is that they turn on their individual facts.

In the same decision, at par 51, Finn J said to the effect that although decisions which preceded the 1995 amendments to the Act must carry little authority in relation to the question of the relevance or extent of relevance of a child’s best interests under s 68B, those cases “may be of assistance to trial Judges in drawing attention to practical matters which may be relevant in determining an application for an injunction in relation to the use of a particular name for a child”.
It is not necessary to set out an exhaustive list of the principles, matters and factors which may be relevant (for example, as set out in Chapman & Palmer (1978) FLC 95-510 at 77,674 and 77, 675-6) and the several other factors extracted from the authorities and set out by the majority in Flanagan at pars 36-38. I will however, in my analysis and decision, endeavour to extract and apply the factors which appear to me to be the most directly relevant in this particular case.

Analysis and decision

It is significant that Green is the children’s birth surname, as the name of their father, Mr Green. However, they have a blood connection with the surname Kay, being their mother’s maiden name. Thus, the present dispute to some extent is between the use of the mother’s blood name or the father’s blood name. However, in this context it must be taken into account also that the children’s birth or registered surname is the father’s name, and also the name by which the children were known until some time after Ms Jasper married Mr Jasper in about mid 2003, when respectively they were about 8, 6 and 5 years, and came to be called Jasper.
The factor of confusion is a difficult one because in between the use of the father’s name, until the children were about 8, 6 and 5 years, and the use of the mother’s maiden name for about a year at the time of the trial, the children were called Jasper for the intervening period, which as I have said was about 2-3 years. The children are known at school and in their extra curricular, sporting and peer environment as Kay (although their formal enrolment is Kay aka Green), so that to require them to change now to use of their birth surname Green would represent a further change for them. Added to this is the circumstance that the children live and will continue to live with the maternal grandmother and maternal grandfather, each of whom has the name the children now use and, at least in relation to H and N, each has expressed that preference. The circumstance that their use of Kay is the use of a name which is not their birth surname has the “roll call” complication referred to by Mr George, exemplified clearly by H’s embarrassment, discomfort or annoyance when he was called for in the doctor’s waiting room as “[H Green]” rather than “[H Kay]”, the name by which he is now more usually known. Further, the children’s enrolment name at school, involving the use of an “aka” is awkward. However, at least the combination “Kay aka Green” involves the birth surnames of both of the children’s natural parents.
It is significant that the maternal grandmother, Ms Kay, did not consult Mr Green, the children’s father, before unilaterally requesting the children’s school to record their surname as Kay aka Green, although, it must be borne in mind, she was motivated at the time by two factors, it would appear, first that Mr Jasper had requested that the children no longer use his name and secondly H’s desire not to be called Green because of past teasing of him when he used that name. Perhaps, given that Green is the children’s birth surname, it may have been preferable for the aka to have been reversed, that is “Green aka Kay” to give precedence to the children’s birth surname.
There is no doubt that it was wrong for Ms Kay to take the unilateral action she took. However, it is necessary to look at the evidence at the time of the trial as to the effect or likely effect on the children, both in the short and long term, of a requirement that they now be known as Green.
I am conscious that, in Chapman v Palmer (above) the Full Court (Evatt CJ, Asche and Marshall SJJ) said at 77,674, that:
The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or to direct that a name be restored where a change has occurred), unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child. The same principle applies when the Court is asked to direct that a surname be restored where a change has already occurred. In deciding the issue in each case there is no onus of proof. It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents. (emphasis added)
However, such a statement of “general principle” expressly was put by the Full Court, in that decision, in the context of necessity for the Court to “balance in its discretion the factors for and against change”. Thus, it is not the case that where a person wrongly may have changed the surname by which children are known or called, of necessity this must be changed back to the children’s birth surname. Rather, although a very significant factor, any such wrongful change is only one of the matters to be taken into account, the “guiding principle” being the welfare of the child; which, as such, must “stand above” the wishes or “proprietary interests” of parents.
Mr Green has the very strong desire for the children to be called and known by their “proper” surname, that is their birth surname, not just for “propriety” but also for the purpose of paternal identity and more importantly that the children’s relationship with him not be marginalised or “more marginalised” in the children’s lives.
There does not appear to be any confusion of identity for the children, who are aware Mr Green is their father, but there is or may be practical confusion, if there is not consistency between the children’s birth surname and their called surname. There is also however H’s and N’s preference, to be considered in light of their respective ages; and the evidence as to embarrassment for H by the surname Green, in previously having been teased as “[…]” (apparently, several years ago, but H recalling it sufficiently strongly for that still to be relevant to him); and the effect on the children of a further change of called surname now, particularly as that would be against H’s and N’s stated preference.
Further, it has been said in the authorities that “short term embarrassment must be weighed against long term effects”, and it may well be appropriate for the children that short term embarrassment should yield in favour of the long term effect of the benefit of their birth surnames and called surnames being the same.
Whether or not a child’s best interests may be a relevant factor, or even the paramount consideration, nonetheless it is both convenient and useful discretely to draw on the s 60CC factors when considering a child’s welfare. The children have a meaningful relationship with Mr Green. Although he did not see them for more than 3 years between January 2003 and April 2006, the relationship then was resumed, and seemed to thrive until the difficulties which arose when the father commenced his relationship with Ms W in early 2007, being the difficulties referred to sufficiently already in relation to the parenting orders decision. Despite these difficulties, I have determined already that there is benefit to the children in having a meaningful relationship with the father. Further, there would be benefit to the children in their not having different called surnames from Mr Green while they are spending time with him, given that he is their biological father, especially as children usually bear the same surname as their biological father, as a matter of custom, identity and practicality.
However, having taken into account what I consider to be all of the relevant factors in this case, the evidence relating to those factors, and the submissions, in my view the order sought by Mr Green, namely that H, N and A be known for all purposes by their birth surname, Green (styled thus as a form of mandatory injunction, but perhaps intended also as a restraint injunction against Ms Kay) is not an injunction or order which is appropriate for the children’s welfare. I have comfortably arrived at this decision, weighing all relevant factors, because it appears to me that the most significant factor is, as put by Mr Middleton of Counsel, for Ms Jasper, their welfare would best be served in relation to the name issue by “leaving well enough alone”, in that it would not be appropriate for the children’s welfare now to have “yet another change” in their lives, having regard to the emotional turmoil the children already have suffered and are suffering relating to their parents’ separation and divorce, their mother’s remarriage and its breakdown, their mother’s ill health and existing conflict in relation to their living and parenting arrangements between and amongst the adults in their lives, and, as put by Mr Read of Counsel, for Ms Kay “the children have had enough”, which submissions I accept.
I am satisfied as to this matter by three discrete approaches to the evidence and the relevant factors, first, having regard to the children’s welfare without consideration of their best interests; secondly having regard to their welfare but taking into account their best interests as a relevant but not paramount consideration; and thirdly, having regard to their welfare but having regard also to their best interests as the paramount consideration; so that, in this particular case, the matter as yet unresolved by the Full Court or the High Court has no bearing upon my ultimate determination.
I will therefore in the exercise of my discretion not make any order or injunction under s 68B(1).
The practical result will be twofold. First, the children will continue to be enrolled and known as currently is the case. Secondly, because I will make an order that each of the Ms Jasper, the Mr Green and Ms Kay are to have equal shared parental responsibility for H, N and Y for the major long-term decisions concerning the children, defined in s 4 of the Act to include a child’s name, there will not be any change to the children’s called or known surname unless and until there be agreement in relation to it as between Ms Jasper, Mr Green and Ms Kay. If that be never, then the children, until they reach 18 years, will continue as at present. Their birth surname, that is their registered surname, is and always will be Green. Their government agency, medical and other enrolments will be Green. Their school enrolled surnames will be Kay aka Green. As at present, it appears likely that usually they will be called Kay, rather than Green. Their school reports, school photographs, sporting trophies and the like may be inscribed either Kay aka Green or simply Kay.
The effect for the children, in both the short and long term, will be that their birth surname and called surname will be different. However, each name is the name of the children’s respective blood parents, and their called name the same as the maternal grandmother and maternal grandfather with whom the children live.
I have referred above to “the parenting orders decision”. In this regard, I appreciate that it is not settled whether an injunction under s 68B is or is not a parenting order: see s 64B(2)(i), which includes that a parenting order may deal with “any aspect” of, relevantly, a child’s welfare or any other aspect of parental responsibility (as defined) for a child. See also KN & SD (above) at par 15, recording the trial judge’s view that it is not; but the Full Court was not required to determine this aspect of the matter; and Johnson & Page (above) at par 118, querying whether an injunction under s 68B(1) properly could be categorised as a parenting order as defined in s 64B(1) and (2), but observing that the point was not addressed in that case. However, it is not necessary for me to decide this aspect of the matter to dispose of the father’s present application. It is necessary however to state that my reference above to “the parenting orders decision”, in its context, is not to be read as a determination by me that an injunction under s 68B is not a parenting order, but is only a convenient reference to the decision made in the earlier part of these reasons concerning the children’s living and other arrangements.
I appreciate also that in relation to H, N and Y I have decided that an order for equal shared parental responsibility as between Ms Kay, Ms Jasper and Mr Green would be in the children’s best interests. As is well understood, and not overlooked by me, an order for equal shared parental responsibility requires the persons with it to make a joint decision about the major long-term issues, or at least use their best endeavours to make a joint decision as to those issues, which include a child’s name. Thus, the intent of my decision, in rejecting the father’s application that H, N and Y be known for all purposes by the surname Green is that there be no changes to what obtains at present in relation to the children’s surname, in particular their enrolled and called and known names unless in the future there be joint decision about that between Ms Kay, Ms Jasper and Mr Green. Further, because I have made a judicial determination about this matter, the dispute about the children’s names is finalised, having been judicially determined.
I have considered making an order to the effect that there be no changes to the children’s surname arrangements as they presently stand other than by the joint decision of Ms Kay, Ms Jasper and Mr Green. However, such an order is not necessary because that is the effect of the parental responsibility order which I have made. However, to all intents and purposes, the plain effect of my decision is as if such an order were made.
Further, although perhaps not strictly necessary, I will make an order that Mr Green’s application, made instanter, for an order that H, N and Y be known for all purposes by the surname Green is dismissed.

I certify that the preceding two hundred and ninety nine (299) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

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