Lively and Caylor and Anor

[2011] FamCA 593

FAMILY COURT OF AUSTRALIA

LIVELY & CAYLOR AND ANOR [2011] FamCA 593

FAMILY LAW - CHILDREN - Parental responsibility - With whom a child lives – Best interests – Family violence – Alleged sexual abuse

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61B, s 61C, s 61DA(1), s 61DA(2), s 62DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3)

B and B (1993) FLC 92-357
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
M v M (1988) FLC 91-979
MRR v GR (2010) 42 Fam LR 531

APPLICANT: Ms Lively

1st RESPONDENT: Ms Caylor

2nd RESPONDENT: Mr Merrick

INDEPENDENT CHILDREN’S LAWYER: McVeity & Associates

FILE NUMBER: LNC 637 of 2010

DATE DELIVERED: 29 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Launceston

JUDGMENT OF: Johnston J

HEARING DATE: 4, 5, 6, 7 & 8 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of Tasmania

FOR THE 1ST RESPONDENT: Ms Caylor in person

COUNSEL FOR THE 2ND RESPONDENT: Mr Welch

SOLICITOR FOR THE 2ND RESPONDENT: Bartletts Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McVeity

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McVeity & Associates

Orders

1. The following parenting orders are made in relation to the children T born … June 1998 and C born … May 2001 (“the children”).

Parental responsibility

1. That Ms Lively shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975) in respect of the children except that Ms Lively shall, prior to making the sole ultimate decision about any such issue:

   2.1.Advise each of the children’s parents in writing of the decision intended to be made;

   2.2.Seek the written response of the parents in relation thereto;

   2.3.Consider, by reference to the best interests of the child, any such responses prior to making any such decision; and

   2.4.Advise the parents in writing as soon as reasonably practicable of her ultimate decision. 

Live with

1. The children shall live with Ms Lively. 

Time with the mother

1. That the children spend such time and have such communication with their mother as may be agreed between all parties and, during the continuation of his appointment, the Independent Children's Lawyer.

Time with the father

1. That the father spend such time and have such communication with the children as may be agreed between the parties including, during the continuation of his appointment, the Independent Children's Lawyer.

Leave to relist

1. That in the event that a minute of consent orders setting out arrangements for the children to spend time with, and communicate with, their parents is not received by …, Associate to Johnston J by 31 August 2011 all parties are at liberty to re-list these proceedings for further submissions in relation to these matters only by arrangement with ….

Restraint

1. That the mother is hereby restrained from permitting her partner Mr Clark from being in the presence of the children or permitting him to remain in the presence of the children during any agreed or ordered period of contact.

Specific issues

1. That each party shall keep the other informed of their residential address and that of the children during any time that the children are in their care. 

2. That each party shall notify the other with full details of any illness or medical emergency affecting the children when in the care of that party.

3. That Ms Lively authorise any school the children are attending to forward a copy of all school reports to each of the parents. 

4. That the appointment of the Independent Children's Lawyer continue for a period of twelve months from the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: LNC 637 of 2010

Ms Lively

Applicant

And

Ms Caylor

1^st Respondent

And

Mr Merrick

2^nd Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. T and C are 13 years and 10 years of age respectively.  They have lived almost their entire lives with their mother.  But in September 2010 the children came into the care of their adult half sister Ms Lively.  They have remained in her care since that time but against the strong objection of their mother. 

2. Their mother is Ms Caylor.  Their father is Mr Merrick. For convenience I shall refer to the parents as “mother” or “Ms Caylor” and “father” or “Mr Merrick” respectively and to “Ms Lively”. 

3. Ms Caylor seeks orders to the following effect:

   ·for the immediate return of the children to live with her;

   ·that generally the arrangements under orders made on 22 August 2007 be returned to;

   ·the mother and father having the parental responsibility for the children;

   ·that the father would have time with the children each second weekend, on the basis that he would attend to all the travelling, as well as time during all school holidays and alternate Christmas days;

   ·the children would enjoy regular telephone communication with their father two evenings each week;

   ·certain other orders which it is unnecessary to describe; and

   ·that the children not have any time with Ms Lively nor any telephone communication with her. 

4. The children’s father seeks orders to the following effect:

   ·that he enjoy the sole parental responsibility for the children;

   ·that they live with him;

   ·that each of the mother and Ms Lively spend such time and have such communication with the children as may be agreed between them, the children’s father and the Independent Children’s Lawyer;

   ·that the parties be restrained from permitting the mother’s partner, Mr Clark to be in the presence of the children; and

   ·certain other orders including an order that the appointment of the Independent Children’s Lawyer continue for a period of 12 months from the date of the orders. 

5. Ms Lively seeks orders to the following effect:

   ·that she have the sole parental responsibility for the children;

   ·that they live with her;

   ·that they have telephone communication with each of their parents as may be agreed in consultation with the children and subject to a non-denigration condition;

   ·that they spend time with each of their parents as agreed between the parties in accordance with the children’s views;

   ·that the mother ensure that Mr Clark is not brought into contact with either of the children; and

   ·that all time spent between the children and their parents occur within Tasmania.

6. The Independent Children’s Lawyer supports the orders sought by the children’s father. 

7. All parties agree that whatever orders the Court makes, there should be an order for continuation of the appointment of the Independent Children’s Lawyer for 12 months.

Background

1. The mother is 47 years of age (born in 1964).  The father is also 47 years of age (born in 1964).  They commenced a de facto relationship in 1990 and separated in December 2006. 

2. Ms Lively is the eldest daughter of the mother and the half-sister of the subject children.  Ms Lively is 29 years of age (born in 1981).  Her father is Mr B.

3. T (born in June 1998) and C (born in May 2001) are the only children of the relationship of the mother and father.   

4. The mother has three children from previous relationships.  As indicated above, her eldest child is the applicant in these proceedings, Ms Lively.  Her other children are Ms S, who was born in 1982 and Ms J who was born in 1989.  The father of Ms Lively and Ms S is Mr B who married the mother in 1981.

5. In approximately February 1986, the mother commenced a relationship with Mr Lively.

6. In approximately December 1986, the mother and Mr B separated. 

7. The mother, Ms Lively, Ms S and Mr Lively moved into rental accommodation together in approximately March 1987.   

8. In November 1989, Mr Lively was sentenced to two years imprisonment for burglary offences.  The mother was pregnant at the time.

9. Ms J was born in December 1989.  Mr Lively and the mother separated in December 1989, just before her birth.

10. In February 1990, the mother commenced a relationship with the father, Mr Merrick.  They commenced cohabitation shortly thereafter

11. In September 1990, Ms Lively disclosed to her mother that she had been sexually abused. She was subsequently interviewed by police and medically examined. The alleged abuser was Mr Lively’s father, Mr Lively Senior.  The details of these allegations are in issue between Ms Lively and her mother.  I shall refer again to this matter below.

12. In 1993, Ms Lively complained to her mother that she had been sexually abused by Mr Merrick.  This is also a matter in issue between Ms Lively and her mother.  I shall also refer to this matter in more detail below. It is clear that Ms Lively was removed from her mother’s care and placed into foster care by the Department of Community Services, as a result of alleged prolonged sexual abuse by Mr Merrick.   

13. The relationship between Ms Lively and her mother was poor at the time and they did not see or speak to each other for years.   

14. In approximately 1994, Ms Lively ran away from her foster parents and commenced living with her father Mr B.  

15. In approximately 1997, the mother became aware that Ms Lively had commenced a relationship with Mr Lively.  She reported the relationship to the Police and to the Department of Community Services. 

16. As indicated above, T was born in June 1998 and C was born in May 2001.

17. After the mother and father separated in December 2006, the mother moved out of their home and into other premises with Ms J, T and C. 

18. In June 2007, the mother commenced a relationship with Mr Clark.  They are currently engaged. 

19. On 22 August 2007, parenting orders were made in the Local Court, providing for the children to live with their mother and to spend time with their father.  The mother failed to comply with these orders after approximately six months when she stopped making the children available to spend time with him and communicate with him. 

20. In approximately November 2007, the mother and Mr Clark commenced an IVF treatment program. 

21. By mid-2009, there were serious problems in the relationship between the mother and Mr Clark.  The mother informed the Department of Community Services that their relationship had broken down irretrievably.  The Department had become aware of alleged physical discipline of the children by Mr Clark.  This was not substantiated although both the mother and Mr Clark have admitted to smacking the children.  The Department had some concern that Mr Clark had declined to discuss the complaint in what they considered a rational manner.  In any event the mother and Mr Clark reconciled.

22. In early 2010, the mother planned to travel to India for an IVF treatment program.  She asked Ms Lively to look after C and T while she was away.  The children came to Tasmania and stayed in the Lively household during April/May 2010.

23. The mother subsequently asked Ms Lively to care for the children again.  They came to Tasmania in September 2010, in circumstances which are in issue.  But there is no question that the mother sent them to stay in the Lively household for what was agreed would be a short period.  Ms Lively subsequently refused to return the children to their mother.

24. On 12 October 2010, Ms Lively filed an Initiating Application seeking sole parental responsibility for the children and a Notice of Child Abuse containing allegations that Mr Clark had been physically abusive towards the children and that the children had been exposed to sexual activity as a result of the mother’s involvement in prostitution.

25. On 26 October 2010, the mother was interviewed by a child protection worker from the Department of Health and Human Services, Tasmania in regard to the allegations that she had exposed the children to sexual abuse, physical assault and neglect.  Ms Lively, the children and their school principal were interviewed on 27 October 2010.

26. On 8 November 2010, Mr Lively was interviewed by a child protection worker. 

27. On 17 November 2010, the Department of Health and Human Services released the Magellan Report.

28. On 6 December 2010, the mother filed a Response to Initiating Application.

29. On 15 December 2010, Federal Magistrate Roberts ordered that a family report be prepared in relation to these proceedings. 

30. On 12 January 2011, the parties and various other family members were interviewed by Family Consultant, Ms M.  Ms M’s report was released to the parties on 24 January 2011.

31. On 1 February 2011, these proceedings were transferred from the Federal Magistrates Court to the Family Court and were placed in the Magellan List.

32. In late February 2011, Ms Lively went to Queensland with her children and T and C.  The mother said that Ms Lively had secretly relocated to an unknown location in Queensland and that she did not consent to the children’s relocation.  It is clear that Ms and Mr Lively were considering the possibility of relocating to Queensland where Mr Lively’s mother resides.  But after some weeks Ms Lively returned with the children to their residence at Town 1 in Tasmania. 

33. On 18 March 2011, Benjamin J ordered that a further family report be prepared in relation to these proceedings.

34. On 23 March 2011, the father filed a Response to Initiating Application seeking equal shared parental responsibility with the mother and that the children live with him. 

35. In May and June 2011, the parties and several other family members were again interviewed by Ms M.  The question of the release of Ms M’s updated family report was a matter of some sensitivity because there was some level of concern for the children on the basis of Ms Lively’s previous removal of them to Queensland.

36. On 20 June 2011, I ordered that the Family Report be released to counsel and to Ms Caylor on the basis that it not be shown or discussed with any other person pending further order.  I also noted an undertaking to the Court by Ms Caylor that pending further order she would not discuss the contents of the Family Report with any person.  I listed the substantive proceedings for hearing for five days commencing at 10:00 am on 4 July 2011 in Launceston.

37. On 29 June 2011, I made further orders restraining all parties from discussing either the matters raised in the Family Report or any aspect of the proceedings with the children or within their hearing and to ensure that any of their partners, friends or relatives ensure that they conduct themselves in the same manner.  I also ordered the release of the Family Report to the parties on the above basis and otherwise lifted the restrictions previously imposed on counsel and on Ms Caylor.

38. The mother lives with Mr Clark on the New South Wales Central Coast.

39. The father lives with his parents on a property in northern NSW. 

40. The children live with Ms Lively and her family at Town 1 in Tasmania.  They have been having regular phone contact with their father and little contact with their mother.

Credit

Ms Lively

1. Ms Lively answered questions in a forthright, responsive manner.  She is very articulate. 

2. But I do have some concerns about the extent to which she is truthful.  In particular I have some misgivings in relation to the very serious issue of her allegations of sexual abuse against Mr Merrick and also her husband Mr Lively.  As indicated above, I shall refer to these matters in some detail below. 

3. Ms Lively has no criminal record.  In respect of most matters, I regard Ms Lively as a witness of truth. 

Mr Lively

1. Mr Lively has experienced two periods of imprisonment.  The first was in 1989 when he served a period of detention of two years.  This was following his conviction of the offences of break, enter and steal.  This involved him entering a club premises at which the mother had been performing and he apparently stole money therefrom.  The second period of detention was six months.

2. Mr Lively says that he has moved on with his life.  I hope he is correct.  There is no record of any further transgression against the law.  It is to Mr Lively’s credit that he is working full time near Town 1.

3. Mr Lively gave almost every one of his answers in a forthright manner.  The only criticisms which could be made are as follows.  Firstly, in response to a question from the mother about the size of his home, Mr Lively answered that by Tasmanian standards his home was not small but by Ms Caylor’s standards it was large.  This was an unnecessary lapse into sarcasm which did not really reflect on his credit but was an example of the very poor relationship between him and Ms Caylor.  The only other criticism is that in response to Ms Caylor asking to speak with her children during a telephone call to the Lively residence Mr Lively called C by referring to him as “my [C]” and asking him if he “would like to speak to this woman”.

4. Apart from these matters I was impressed with Mr Lively as a truthful witness. 

Ms Caylor

1. Ms Caylor has a conviction for offences involving dishonesty.  She was placed on a good behaviour bond.

2. Initially during cross-examination Ms Caylor had difficulty giving responsive answers.  After I explained what was required of a witness there were no difficulties and, to her credit, she answered questions in a responsive manner.  Ms Caylor is very articulate and had no difficulty following the course of the questions. 

3. I was troubled particularly by one aspect of her evidence.  This related to her evidence about Mr Lively.  Ms Caylor disagreed with Ms Lively’s account of the circumstances of her making allegations of sexual abuse against Mr Lively, her husband.  I shall refer in detail to this matter below.  In essence, Ms Lively said that her mother persuaded her to make false allegations against Mr Lively for what Ms Lively assumed was a strategy which her mother hoped would result in her gaining some funds ultimately from the father of Mr Lively.  Ms Caylor said that she has remained of the view that Mr Lively sexually abused Ms Lively when the latter was a child.  She told this Court consistently with such a belief that she would never have permitted the children to go to Tasmania and spend time with Ms Lively and Mr Lively if she had any inkling that they remained in a relationship.  She said that she was only prepared to send the children to Ms Lively because Ms Lively assured her that she had separated from Mr Lively and that he did not live in her home.  Ms Caylor said that this was her understanding in relation to the April visit by the children.  She said she had many further conversations with Ms Lively prior to the September visit to Tasmania by the children and that Ms Lively continued to assure her that Mr Lively was not a part of her household because they had separated.

4. There is a substantial difficulty, in my view, with Ms Caylor’s account.  This is because Ms Caylor sent Ms Lively an email letter on 9 March 2010.  In that letter she asks

   “How has [Mr Lively] been towards you lately?  I hope that he has pulled his head in and woken up to himself that he can’t push you around any more and expect you take it [sic] and say nothing.  You keep your head held high and stay strong in your opinions, rights as a person, the ability to think for yourself, the need to ask no-one permission about things that you want to do.  I am not deliberatley [sic] being horrid toward [sic] [Mr Lively] but you know how I feel.  I just don’t like to see you so restricted in the things he thinks you should be doing or not doing.”. 

5. The letter then went on to explain that Ms Caylor and Mr Clark were planning to go to India for IVF treatment and indicated that she could get the children down to Tasmania to Ms Lively “if you would do me the biggest favour out”.  The letter contains no suggestion that the only basis on which Ms Caylor would be prepared to send the children to Ms Lively in the school holidays would be on the basis that Mr Lively was not in the home. 

1. In my view Ms Caylor has failed to explain in any satisfactory manner the inconsistency between this letter and her assertions that she only sent the children on her alleged understanding that Mr Lively would not be in the household. 

2. In relation to this aspect, Mr Clark’s evidence during his cross-examination was consistent with the assertions of Ms Caylor, namely, that Ms Caylor was under the belief that when she sent the children to Tasmania Ms Lively and Mr Lively had separated.  I must say, I thought Mr Clark’s evidence in relation to this matter was contrived.  I do not accept either what Ms Caylor or Mr Clark said in this regard.

3. I have serious reservations about the reliability of much of the mother’s evidence.

Mr Clark

1. I do not regard Mr Clark as an untruthful person generally.  But I have some reservations about the reliability of his evidence.

2. He did not make himself available for interview for the purposes of the first Family Report.  There was an interview of Mr Clark by telephone by the reporter in relation to the later Family Report.  This occurred after the independent children’s lawyer had explained to the mother that it would leave a serious shortcoming in her case if Mr Clark was not involved in the interview process.  Apparently a mental health nurse, who counsels Mr Clark and the mother, advised Mr Clark not to be interviewed by telephone because of the stress that this would be likely to impose on him.  But in any event, by not making himself available to the family reporter to enable opportunity for assessment of his relationship with the children, in my view, this remained a deficiency in the mother’s case. 

3. Mr Clark was unable to attend the courtroom directly for cross-examination on the material in his affidavit.  He said this was because of the high cost involved.  I accept this, and I can understand it because the mother said that she and Mr Clark have had to fund ten visits by her to Tasmania in relation to the children and particularly the requirements of the litigation.  In these circumstances an arrangement was made for Mr Clark to attend by video link from the Sydney Registry of the Court. 

4. Mr Clark dealt poorly with the process of cross-examination. 

5. Mr Clark had great difficulty answering questions in a responsive manner.  Initially he launched into speeches about various views which he held strongly particularly about family courts and children.  As the questioning process continued he became louder and louder and quite distressed.  After a time his speeches turned into a tirade.  He lost self-control.  He became quite agitated, intemperate, unrestrained, overbearing and very loud.  Counsel struggled to interrupt the tirade, as did I.  Mr Clark manifested a strong pressure of speech to the point where the volume of his delivery was approaching one of shouting. 

6. Mr Clark gave me the very clear impression that he has poor impulse control.  In my view his behaviour verged on being intimidating. 

Mr Merrick

1. In the main, I regard the father as a truthful witness.  He made concessions without hesitation and was very cooperative during cross-examination.  I have some reservation in respect of his evidence about Ms Lively’s allegations that he sexually abused her over some years.  He vehemently denied that there had been any improper behaviour between them.  As I shall indicate below, I am simply unable to form a view one way or the other about this matter.  I am unable to exclude the possibility of what was alleged to have occurred. 

2. I also have reservation about the truthfulness of his explanation about the circumstances of him holding a flick knife against Ms Caylor’s leg in their bathroom.  And I am concerned about the accuracy of his explanation about the extent to which he has administered physical punishment on T and C.

3. I observed that when Mr Merrick understood the questions, he responded in a forthright manner.  But there were numerous occasions when he appeared not to understand the question.  This led me to wonder whether he might suffer from some level of cognitive impairment.  Due to his circumstances, particularly his financial circumstances being in receipt of the disability pension, he was unable to travel to Tasmania for the purpose of participating in interviews with the children for the Family Report.  He was interviewed by telephone.  This has had the consequence of Ms M, the Court Consultant, not having had opportunity not only to make an assessment of his relationship with the children, but also some assessment of his general level of functioning.  To his credit, he concedes that he suffers from a bi-polar disorder with anxiety features.  But he assured the Court that he takes medication for this.  

Ms J

1. Ms J answered questions in a forthright manner.  She has an extremely poor relationship with her mother.  Ms Lively indicated that she is studying for a Diploma.  She also informed the Court that she suffers from serious depression.  I observed her affect to be quite low.  She is highly supportive of the application of the father, Mr Merrick.  

2. I was impressed by her courage and intelligence.  Generally, I regard her as a witness of the truth. 

The applicable law in parenting proceedings involving allegations of child sexual abuse

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”). 

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

4. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

5. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.

7. Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

8. 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

9. The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act.

10. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

11. In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.

12. In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:

    … the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.

13. The High Court went on to say at page 77,081 as follows:-

    The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.

14. The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk.  Then the High Court arrives at the relevant test saying as follows, still at page 77,081:

    This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.  In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

15. The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:

    The “unacceptable risk” test is therefore the standard used by the Family Court to “"achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

Allegations of Sexual Abuse

Mr Merrick

1. Ms Lively said that she had been sexually abused over some years by her step-father Mr Merrick prior to her reaching the age of 13 years.  She said that Mr Merrick had also sexually abused Ms S.  Apparently Ms S has denied this.  Ms Lively said that when she first informed her mother about the abuse her mother did not believe her.  But she also said that at a later time her mother was well aware of the abuse, including the allegation by Ms Lively that on one occasion her mother stood at the bedroom door and watched Mr Merrick having sexual intercourse with her.  Ms Lively said that when her mother did nothing to inform the authorities about such abuse she raised it with her headmaster and the headmaster notified the Department of Community Services. 

2. It is clear that Mr Merrick then left the home for some weeks but later returned to resume his cohabitation with the mother.  Ms Lively said that when both Mr Merrick and her mother refused to leave the home in which Ms Lively was at that time residing, she went into the care of the Department of Community Services.  Ms Lively said that she hated being in foster care and made contact with her natural father, Mr B.  She ran away from her foster parents and commenced residing with him.  This was when she was 13 years of age.  Ms Lively said that life with her natural father was quite unsatisfactory, he being an alcoholic.  After a few years she made contact with Mr Lively and moved into his home. 

3. Mr Merrick has always denied the allegations of sexual abuse.  Ms S informed Ms M that Mr Merrick did not sexually abuse her or any of her siblings.  Mr Merrick said that the allegations were investigated and determined to be unfounded.  He said that over a period of approximately seven years, Ms Lively would intermittently revive the allegations. 

4. Ms Lively said that when her mother was engaged in litigation with Mr Merrick about the parenting arrangements for T and C, Ms Caylor asked Ms Lively to reopen her case against Mr Merrick concerning the allegations of sexual abuse.  She said that Ms Caylor thought that this might assist her case.  This was in approximately 2007.  Ms Caylor denied this.  Ms Lively also said that during the course of several conversations between her mother and herself, her mother apologised to her for not assisting her in respect of the sexual abuse by Mr Merrick.

5. Ms Caylor informed Ms M that she now believes that the sexual abuse allegations against Mr Merrick were false. 

6. I am unable to make a finding one way or the other about whether this sexual abuse occurred.  It is the case that inquiries were made by the Department of Community Services over the years.  What I find quite difficult to reconcile with the allegations by Ms Lively is the fact that she is now prepared to facilitate the children spending time with Mr Merrick.  In my view, this does not rest well with her allegations that he sexually abused her as a child.  But as I say, I am unable to find that it is more probable than not that Mr Merrick sexually abused Ms Lively as alleged. 

7. But having considered all the evidence by all the relevant witnesses, and bearing in mind that both the Family Consultant and counsel for the Independent Children's Lawyer recommended the children live with Mr Merrick, I am unable to find that for the children to pass into his unsupervised care would expose them to an unacceptable risk of harm. 

Mr Lively  

1. Ms Lively said that between the ages of 5 and 9, she was sexually abused by Mr Lively’s father.  This was at a time when her mother was living with Mr Lively.  Her mother and Mr Lively were both working and her mother used to take her to Mr Lively Senior’s home so that he could babysit.  Ms Lively said that it was during such periods that the sexual abuse occurred. 

2. In 1989, as indicated above, Mr Lively went into prison having being convicted of burglary offences.  Ms Lively said that Mr Lively Senior had been providing some financial assistance to the family.  She said that when Mr Lively went into prison his father, who was wealthy, continued to provide for the family. 

3. I am satisfied that Mr Lively Senior organised for the family to move into a home owned by his daughter and her husband.  He came to stay with Ms Caylor and the children for extended periods of time during which he was permitted by Ms Caylor to stay in the bedroom in which Ms Lively and Ms J slept.  Ms Lively said that during such periods the sexual abuse continued. 

4. It is also clear that Mr Lively Senior purchased a car for Ms Caylor.  But when he found out that Ms Caylor was in a relationship with Mr Merrick there was a serious argument between Mr Lively Senior and Ms Caylor.  I am satisfied that Mr Lively Senior then removed the car from Ms Caylor. 

5. Ms Lively said that after this argument her mother paid closer attention to the allegations of sexual abuse she was making against Mr Lively Senior.  But Ms Lively said that her mother had decided that she might be able to seek some compensation from Mr Lively Senior and suggested that Ms Lively take her allegations to the police.  Ms Lively said that her mother tutored her to make the complaint also against Mr Lively apparently on the basis that she thought that this might facilitate her chances of obtaining compensation.  Ms Lively also made a complaint about Mr Lively to the police in these circumstances.  But she later withdrew the allegation of sexual abuse against Mr Lively. 

6. Ms Caylor’s version was quite different from this.  She said that Ms Lively informed her in September 1990 that Mr Lively had had sex with her when Ms Caylor and Mr Lively were living together.  She said that Ms Lively had told her about this in circumstances where she said that now that Mr Lively was in prison she felt safe to so inform her.  Ms Caylor said that she took Ms Lively to the police and that subsequently Mr Lively was charged with sexual offences relating to the allegations. 

7. I accept the latter part of this and note that it is common ground that the charges were dismissed in March 1991.  This accords with Ms Lively’s evidence that she withdrew her complaint against Mr Lively.  Ms Caylor said that when Ms Lively was told that the charges would be dismissed she said “How can he get away with this”.  Ms Lively denied that she had said such a thing.

8. I must say I prefer Ms Lively’s account about this matter to that of her mother.  Firstly, I have a better view generally of the truthfulness of Ms Lively’s evidence, whereas I have a poor view generally of that of her mother as indicated above.  But secondly, during the course of her cross-examination I informed Ms Lively that I was somewhat confused about her explanation about this matter and asked her to provide a further explanation.  I note that her further explanation accorded in matters of detail with the version in her affidavit and appeared to be more likely than not to be a fairly accurate account of what occurred.  This has left me with the impression that it is more probable than not that Ms Lively was not sexually abused by Mr Lively.  In any event I have the view that the children are not at an unacceptable risk of harm living with Mr Lively by reason of the allegations of sexual abuse. 

9. But there is one other matter which I need to refer to.  This is that Ms J said that Mr Lively can be violent.  She said that when she was living with him and Ms Lively there was an incident involving her and Ms Lively visiting a particular nightclub.  She said that they had made an arrangement for Mr Lively to collect them from outside a particular club and when they were not at the appointed place at the appointed time, Mr Lively reacted very badly.  Ms J said that when they arrived home she heard a heated argument going on in the bedroom of Mr and Ms Lively and heard what sounded like slapping noises.  She said that the next morning Ms Lively told her that Mr Lively had threatened to shoot her with a bow and arrow.  Ms Lively conceded that there had been a heated argument between them but denied any violence or the threat.  Ms J also said that Ms Lively had informed her that Mr Lively was horrible and controlling towards her.  Again Ms Lively denied this. 

10. Having heard the evidence by all the parties in these proceedings including Mr Lively, and bearing in mind the very complicated lives of the various members of this family, I have the view that Mr Lively is a person who at times has found it difficult to control his anger.  I find it more likely than not that he has exhibited some violent behaviour.  But having said this he has not come to the attention of the child protection authorities in recent times other than in the context of this immediate dispute about T and C.  In any event, the objective signs for the children are not ones which would cause concern.  In particular they are doing well at school, they are happy and the child protection authorities are satisfied with their current living circumstances.

11. In these circumstances, I do not regard Mr Lively as presenting an unacceptable risk of harm to T and C. 

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.

3. Accordingly, before considering who should have the parental responsibility for the children, I propose to consider the requirements of s 60CC of the Act and determine what is in the children’s best interests.

Section 60CC Considerations

1. As indicated above, how the Court is to go about determining what is in the children’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in s 60CC(2) of the Act. They 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.

2. Having noted these primary considerations at this point I shall return to discuss them below.

Additional Considerations

1. The additional considerations are set out in s 60CC(3) of the Act. They include the following.

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

1. T ran away from her mother’s home in 2009 and used public transport to travel to Ms Lively’s home.  She said that she did not want to live with Mr Clark.  At that time the child protection officers decided that T should return to her mother’s care.  When Ms Lively endeavoured to return her to her mother, T ran away again. 

2. During the course of the interviews for the first family report Ms M arranged for the children to have lunch with their mother.  After this three-hour occasion T reported that the experience had been a bit uncomfortable at first but “alright”.  T informed the reporter that the bottom line was that she wanted to live with her sister.  C agreed with this. 

3. At the second family report interview the children expressed a desire not to have to participate in a session with their mother.  Nevertheless they did so. 

4. T informed Ms M that her first wish was “to stay with my family” meaning Ms Lively, Mr Lively and their children.  C said a similar thing.  C expressed a second wish as being “not to go back to mum and [Mr Clark]”. 

5. Ms M said that when the children were seen by her in January 2011 they viewed their father to be the next best option if they could not live with Ms Lively but she said that they are more closely aligned with Ms Lively now and believe that their father sexually abused her.  Ms M said any transition to his care would be more difficult for them now.

6. Ms M said during her cross-examination that she believed that the children genuinely wish to stay with Ms Lively.  She said that the children said that Ms Lively is kind to them, that she takes them places and that she looks after them. 

7. Ms M said that the Court ought not place significant weight on the children’s wishes because the children have been exposed to torn loyalties, sworn to secrecy and manipulated throughout their lives.

8. Given the ages of the children and the somewhat tumultuous and complicated history of their parenting I propose to give some weight to their views.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

Ms Lively

1. Ms M reported that both T and C drew a picture of their family as consisting of Ms Lively, Mr Lively, K, R and themselves. 

2. Ms M said that the children have a good relationship with Ms Lively.  But she said that it is somewhat of an enmeshed relationship and to some extent an adult relationship because Ms Lively has not been good at keeping adult issues from the children.  Ms M also said that while the children have formed an attachment to Ms Lively it would appear to be stronger than it actually is because they are happy in her care and want to live with her.

3. T told Ms M that she and C get on with K and R “really, really well, play together”.

Mr Lively

1. Ms M appears not to have undertaken a significant assessment of the relationship between the children and Mr Lively.  Of course, Ms M observed that if it were to be substantiated that Mr Lively had sexually abused Ms Lively as a child then the children could be at risk of sexual abuse in his care.  But, as indicated above, this has not been established.

2. Ms M said that Mr Lively was relaxed and casual at the interview, which also accorded with my observations of him as a witness.  Ms M observed the children briefly playing in the play room with Ms Lively, Mr Lively and their children.  Apparently there was nothing remarkable and that the parents were relaxed after their long drive from Town 1. 

Mr Merrick

1. Ms M did not have opportunity to observe the children with their father because, as indicated above, he only spoke to her by telephone.  Ms M thought the children probably would have had an attachment to their father on the basis that he is said to have been one of the adults who nurtured them.  When Ms M asked the children whether they would like to see their father, they said ‘don’t know’ and shrugged their shoulders.

2. In her first Report, Ms M said that the children reported positively about their father.  In her second Report, Ms M reported that the children were not as positive about their father compared with when she had seen them in January 2011, even though they had been having telephone contact with him. 

3. But Ms M thought that if the children were to move to live with their father, their relationship with him would restore and repair quite readily. 

Ms Caylor

1. Both T and C expressed opposition to having to see their mother for the purposes of the Family Report.  T said that they should not have to see her and that she should not be made to do something that she does not want to do.  C said that his mother “always lies, takes our money to get smokes, gets kicked out of places, always lies to us”.  Ms M said C reported that his mother had promised that he would “never go back with [Mr Clark]” but she has.  T said that her mother had lied that “when my sister [Ms Lively] was little my dad did stuff to her … touched her and stuff…sister went to the doctor she got tested and stuff … showed she had been raped, touched … did it to my sister [Ms S] too, she won’t talk”.  Ms M said that T reported that her mother had told her about this alleged abuse three years ago but her mother is now denying it occurred.  T reported that Ms Lively had told her “she ([Ms Caylor]) stood there and she watched, [Ms Lively] wouldn’t lie about something like that”. 

2. Ms M reported that the children did not acknowledge their mother when she entered the room.  Ms Caylor hugged each child but they did not return her affection.  Ms Caylor encouraged the children to write on the plaster cast on her foot but they would not. 

3. Ms M reported that the children did not accept their mother’s invitation to have lunch with her. 

Mr Clark

1. As indicated above, Mr Clark was only available by telephone.  There was no opportunity for Ms M to observe his relationship with the children.  Mr Clark described to Ms M that T and C are “loving children who used to cuddle him and Ms Caylor”. 

2. In my view, looking objectively at things which the children have said about Mr Clark such as that “he is not a nice person”, that he has smacked T and pulled her hair and pulled C by the ear, one would be inclined to the view that the children have a poor relationship with him. 

3. In my view, it is clear that the children have a strong wish not to live with him based on what I would regard as being their poor relationship with him.  Having observed Mr Clark in the witness stand in the manner referred to above, I feel confident that this view is correct.  It would appear unlikely that his serious lack of impulse control would have been confined to the occasion of his appearance in this hearing.  Such intemperate displays would, in my view, be quite intimidating if manifested in the presence of the children.

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

1. Ms Caylor said that in the event that the children were to reside with her she would facilitate their continuing relationship with their father. 

2. As indicated above, after their relationship broke down and the parents separated, they had consent orders made by the Local Court.  As also indicated above, for approximately 6 months, the mother facilitated the time between the children and their father generally in accordance with the orders.  But apart from Ms J taking the children to see their father for a few days in January 2009, the last time the children spent time with their father was during the Christmas 2007/January 2008 school holiday period when they had eight weeks with their father.  My perception of this is that it suited Ms Caylor for this to occur.  Since that time, Ms Caylor has not facilitated time between the children and their father. 

3. I must say, I find it difficult to be optimistic that Ms Caylor would carry through on her assertion.  In any event, the children’s father has been somewhat less active than what was required in the circumstances to endeavour to ensure that the children were able to have the opportunity under the court orders to maintain their relationship with him.  To be fair, he did consult a solicitor after the parenting arrangements broke down, as I have said.  But he was informed that unless he could find funds to pay the solicitor then he would have to act for himself in this respect.  The father simply left matters there.  That position has resulted in the situation where the children’s relationships with him have been interrupted with significant negative effects for the children.

4. So far as any relationship between the children and Ms Lively is concerned, Ms Caylor made it perfectly clear that she would not facilitate any relationship between them.  Her view is that Ms Lively abducted her children and is an ongoing risk to them. 

5. The mother has a pattern of cutting off important relationships.  As indicated above, she cut off her relationship with Ms Lively when she was only 13 years of age.  And for the next 13 years.  She cut off Ms S’s relationship with T and C in mid 2008.  She cut off the children’s relationship with their father following the time they spent with him in January 2008.  Her relationship with Ms J is non-existent.

6. The father indicated that, in the event that the children were to live with him, he would be happy to facilitate their relationship with each of their mother and Ms Lively.  This could take the form of reasonable time between the children and each of them, particularly during school holidays. 

7. I accept Mr Merrick’s sincerity in this regard.  My only reservation is the extent to which he would be able to make some financial contribution to such facilitation of time spent by the children.  His financial circumstances are extremely limited by his income which, as I have said, consists solely of the disability pension.  He was unable to fund travelling costs to enable his direct participation in the family report interview process.  It is the case that he was able to appear at the trial.  But there must be real reservation about his capacity to fund any travelling by the children or his own costs to visit them on the central New South Wales coast, let alone Tasmania.

8. Ms Lively said that she would be prepared to facilitate the children spending time with each of their mother and their father.  She said that she would do this in relation to their mother notwithstanding the appalling relationship she concedes that they have with one another. 

9. As indicated above, since the commencement of these proceedings, Ms Lively has assisted the children in having telephone communication with their father.  In addition, during the week of the hearing, the father and children had lunch together and spent some other time together.  But it is true that it was the Independent Children’s Lawyer who initiated negotiations for this. 

10. It is also the case that there have been occasions during which the children’s mother has had telephone communication with the children since the children came into Ms Lively’s care.  But the children appear to have been rather lukewarm towards their mother during these sessions.  Ms Caylor tendered a digital recording of a recent occasion of telephone communication between her and the children.  Mr Lively was cooperative in arranging for the children to come to the telephone although not particularly encouraging.  It is difficult to know whether the children’s lack of enthusiasm is a reflection of their own apprehension about the possibility of going back into their mother’s care based on their own experiences or whether it is a reflection of some alienation by Ms Lively of them from their mother.

11. Ms M has a very pessimistic view about the ability and preparedness of Ms Lively to facilitate a relationship between the children and their mother, despite Ms Lively’s assurances that she would do so.  Ms M said that because of the negative view which Ms Lively has towards her mother, Ms M could not see how Ms Lively could promote a positive image of their mother to the children. 

12. I must say, I accept Ms M’s reservations in this regard.  Ms Lively indicated that the children did not really want to have any communication with their mother and she appears simply to have accepted their view as justification for not promoting the relationship between the children and their mother.  Ms M has indicated that she regards this as a very serious shortcoming in Ms Lively and one which she thinks could have very serious consequences for the children. 

13. So far as Mr Clark is concerned, because of the very poor relationship between him and the children, he is unlikely to be able to encourage the mother to soften in her resolute determination that if the children were living with her they would not have a relationship with Ms Lively.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. Ms M reported that T had informed her that if the Court was to decide that she and C would live with their mother, she would run away.  C said he would go with her.  Ms M went on to raise with the children the possibility that if they were to return to live with their mother they could later report on any difficulties to an independent person.  T said “I’d be just gone” so this could not occur.

2. Ms M also said that if the children were to return to their mother’s care they would be highly anxious and upset.  It would be possible that T would run away.  She said that the children might not respond positively to Ms Caylor’s celebration of their return.  And that these matters would place the children and the family under considerable stress.

3. Ms M also reported that if the children were to live with their father, there would be some disruption and upset.  But she said that their level of distress and grieving would be significantly less than were they to pass into their mother’s full time care.  I must say I wonder whether this is a rather optimistic view given that the children have settled in Ms Lively’s care and by all objective signs are doing well.

4. Ms M was not sure whether the children would miss Mr Lively.  But she said that they would miss K and R. 

5. Ms M also said that if the children were not to live with Ms Lively, Ms M did not think they would suffer long term damage by reason of not living with her. 

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

1. Telephonic communication would not present in itself any practical difficulty for the children in being able to communicate with each of their parents and Ms Lively is concerned.  As indicated above, they have been able to have telephone communication with their father.  This would probably not change if the children were in the care of their mother, at least for a short period.  Whether Ms Caylor would be able to continue this in the longer term is probably unlikely, given the history of this matter.  Similarly, the children have been able to speak with their mother by telephone albeit with little encouragement by Ms Lively and Mr Lively.  As indicated above, if they were living with their mother, there would be no opportunity for them to have telephonic communication with Ms Lively.  But this would not be out of any practical difficulty. 

2. The distance between each of the parties presents as a serious practical difficulty.  If the children were to live with Ms Lively, the distance between her proposed home at Town 2 in a fairly remote area of Tasmania and the residences of each of the children’s parents would impose practical difficulty for the children to maintain their relationships with their parents.  It is difficult to see that there would be the financial capacity available amongst the three adults to be able to fund anything other than a limited amount of holiday time between the children and each of their parents.  Having said this, however, this would not be impossible.  Each of the mother and father have been able to come to Tasmania for the purposes of this hearing.  In these circumstances, one would have reason to think that they would be able similarly to attend Tasmania, at least occasionally, to visit their children. 

3. If the children were to live with their mother, from a practical point of view, it would be easier for them to visit their father than if they were to live in Tasmania.  And it would be easier for their father to visit them on the New South Wales Central Coast than in Tasmania.  On the mother’s proposal, there would be no opportunity for Ms Lively or her family to have any time or communication with the children. 

4. If the children were to live with their father, it would be easier from a practical point of view for their mother to visit them and vice-versa than if they were living in Tasmania. 

5. Given the fact that Mr Lively is working, one could anticipate the practical obstacles being grappled with so that Ms Lively’s family could visit the children at their father’s home in northern NSW and possibly assist him with at least some funding to come to Tasmania and visit the children.      

6. But having said this, the practical difficulties and expenses of travelling are real considerations and realities in this case. 

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

1. On any objective view, there are serious shortcomings in the mother’s capacity to parent the children.  There are problems of the utmost seriousness in her relationships with each of her three eldest daughters, Ms Lively, Ms S and Ms J. 

2. Firstly in the case of Ms Lively, she described her life with her mother up to the age of 13 years, when she was placed with the Department of Community Services as “horrific”.  She said that she was sexually abused by Mr Merrick and Mr Lively Senior while in her mother’s care, she said she was neglected by her mother and not properly fed or clothed.  She said that her mother spent little time with her and left her alone or in charge of her younger siblings when she was still quite young.  Ms Lively also said that her mother had informed her on numerous occasions that she had worked as a prostitute including at a brothel in Sydney, NSW.  Ms Lively also said that her mother abused alcohol and at one stage had become involved in using prohibited substances. 

3. Even taking account of the appalling relationship between Ms Lively and her mother, I accept much of the thrust of these allegations.  T informed Ms M that she had heard her mother telling Ms J that she was a prostitute.  The children told Ms M that Mr Clark had been a client of their mother. 

1. Ms M said that even if the children were to be successfully returned to the care of their mother, it would be likely that her priority for them would weaken over time.   Ms M said that the likelihood that they would be happy and have their emotional and physical needs met adequately by their mother for the remainder of their childhood seems fairly low. 

2. In the case of Ms S, Ms M said that Ms S spoke to her from her therapist’s office.  Ms S explained that it was very difficult to discuss her traumatic childhood, particularly by phone.  She reported that she and Ms J had mostly cared for T and C when they had lived with their mother.  She said that her mother was absent from home and that her mother’s routine was unpredictable.  Ms S said that the family had ongoing financial problems and often there had been insufficient food in the home. 

3. Ms J said that she felt more a victim of her mother than a daughter.  She said that her mother had deprived her of a childhood and that she suffers from serious depression and serious abandonment issues.  Her evidence generally supported the criticisms of their mother made by her two elder sisters.

4. From the evidence, it is clear to me that Ms Caylor has had real difficulty in parenting her children adequately.  She has struggled always to provide appropriate accommodation for the children and to keep food on the table.  The children informed Ms M that before they travelled to Tasmania in September their mother had nowhere to live so they had been living with a friend for three nights then at a budget hotel. 

5. If there is any reality about the criticism by the children, the mother has not been sufficiently available to them either in an emotional or physical sense.  There is some evidence that at times she has neglected the children, that she has not made proper arrangements for their supervision and that she has inappropriately placed them as carers of their younger siblings without appropriate supervision.  In all the circumstances, I accept Ms M’s opinion that the likelihood of Ms Caylor being able to provide adequately for the emotional and physical needs of the children seems to be fairly low. 

6. In addition, it is more probable than not that Ms Caylor has not always been able to place the children’s needs above her own.  She has made it clear that her relationship with Mr Clark is her priority notwithstanding that this is obviously in conflict with the best interests of the children.  Unfortunately I regard Mr Clark as an inappropriate person in the lives of these children.  It will therefore be necessary to place a restriction on the children’s mother to ensure that he is not brought into contact with them. 

7. In relation to the parenting capacity of the children’s father, in my view there must be real reservations.  Mr Merrick informed Ms M that he had been the children’s primary parent during the years that he was living with their mother.  To his credit, however, during cross-examination he said that this had been incorrect and that in fact he cared for the children equally with their mother. 

8. Ms S informed Ms M that when she was at home, Mr Merrick helped to care for the children but that he had suffered from depression and therefore she and Ms J continued to assist with the younger children’s care.  Ms Lively said that her mother and father were never out of bed before 11 am so that on school days the older children would have to organise themselves for school as well as caring for Ms J who was a young child at the time.  Mr Merrick conceded that for a period of three years, he generally stayed in bed until 11 am. 

9. As indicated above, Mr Merrick suffers from a bi-polar disorder with anxiety features.  He said that he experienced periods of serious depression and anxiety during the time that he was living with Ms Caylor.  He continues to suffer from bi-polar disorder but describes himself as being “in a good place” at present.  He has had the assistance of a psychiatrist, a psychologist and his general medical practitioner as indicated above.  His general medical practitioner monitors and adjusts his medication.  He says that he is compliant with his medical advice and takes his medication as prescribed. 

10. Mr Merrick lives with his elderly parents, both of whom are 76 years of age.  He said that his father suffers from terminal cancer and that his mother suffers from serious hypertension, severe arthritis and various other medical conditions.  As indicated above, until these proceedings Mr Merrick had not seen the children since January 2009 when Ms J took them without her mother’s consent and visited Mr Merrick for several days at his home.  During the previous contact period, that is the eight weeks in December 2007/January 2008, it was the father’s parents, rather than the father, who collected the children and returned them to their mother. 

11. The father is in receipt of a disability pension.  He said that he has made inquiries of the Department of Housing and understands that in the event that the children were to live with him, the Department could make an appropriate home available for him and the children without delay. 

12. Also on a positive note, Ms J said that Mr Merrick has been the only stable influence in her life.  She said that at no point in her life has Mr Merrick made sexual advances towards her or any of her siblings.  She said that Mr Merrick has had anger issues in the past. 

13. Ms M said that it appears that Mr Merrick was passive in making decisions about the children during his relationship with their mother.  She also said that he did not assume sufficient responsibility for them, especially because he was not in employment at the time. 

14. Ms M reported that it was a significant limitation of her assessment that Mr Merrick was not interviewed face to face or observed with the children.  She said that if the children were to live with Mr Merrick it would be important for the Court to be satisfied about the following matters:

    ·That he does not pose a risk to the children;

    ·That he does not have mental health problems that are likely to impact negatively on his parenting in any significant way;

    ·That he has appropriate accommodation for the children’s care;

    ·That he is able to make suitable arrangements for the children; and

    ·That he has a robust support network to assist him and the children.

15. I must say I am unable to be confident about any of these matters and I shall refer again to these matters below.

16. In relation to the capacity of Ms Lively to provide for the children’s needs, Ms M had various concerns.  For instance, she said that it would be a very poor reflection of Ms Lively’s capacity as a carer for T and C if the Court found that she had fabricated her allegations of sexual abuse against her father.  In relation to this matter, as indicated above, I am unable to make a finding one way or the other.  Ms M also said that Ms Lively has built on the children’s difficulties with their mother to further weaken their relationship with her.  Furthermore, at least in part, and possibly unconsciously, Ms Lively is motivated to retain the children to punish her mother for her failures as a parent.  Ms M also said that Ms Lively’s influence of the children has resulted in further long-term damage of T and C’s relationship with their mother. 

17. But in respect of these criticisms, to be fair to Ms Lively, she did inform Ms M that “at the end of the day [the children] have asked me to help them” and she said that she does not want to let the children down. 

18. Ms Lively had been working in a part time position but she intends upon the birth of her baby in the very near future to remain at home and be a full-time mother to all the children.  Ms M reported that the children were entirely positive about living with Ms Lively and Mr Lively.  T informed Ms M that the children love Ms Lively and think she will look after them better than their mother.  C said that Ms Lively fed and clothed them better and takes them to “fun” places like Hobart and Town 3.  Ms M reported that all four children are happy together.  Mr D, the headmaster at the children’s school reported that the children have settled well and are “very happy”. 

19. Ms M has a view that the children have presented a somewhat “glowing” account of life in the Lively household and which just seems too good to be true.  But in my view when one considers the reality of this, one needs to compare this with how the children described their life with their mother and in particular with Mr Clark whom they do not like and are fearful of.

20. Ms R, Team Leader, Child Protection Services, Tasmania, indicated that there had been no child protection notifications to the authorities in respect of either K or R.  Ms R also indicated that a home visit by her officers had reported that the level of hygiene and cleanliness in the home was appropriate. 

21. In my view, these matters reflect well on Ms Lively’s capacity as a parent and a person able to meet the emotional and physical needs of the children. 

22. Mr Lively works full time near Town 1.  He anticipates a change in jobs soon to enable the family to move to Town 2 and obtain a four bedroom home.  Mr Lively informed Ms M that it is no problem caring for T and C “they are great kids”.  He said that for him and Ms Lively to care for the children is “just the right thing to do, innocent kids, give the kids a kiss and a cuddle” before going to work.  Ms M also reported that Mr Lively had played appropriately with the children, making them paper planes which they played with, at the interview session.    

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. Ms Caylor has placed her own needs and those of Mr Clark ahead of the children’s needs.  In my view it is more probable than not that she has been well aware that the children have been most unhappy sharing her household with Mr Clark.  In my view it is more probable than not that C has made his view quite clear to his mother as reported by Ms M.  This is that C was most disappointed that his mother has continued to live with Mr Clark.  As indicated above, the children are fearful of Mr Clark and very critical of his behaviour. 

2. If Ms Lively is to be believed and Mr Merrick sexually abused her as a child it would appear that Ms Caylor placed her needs and those of Mr Merrick ahead of Ms Lively’s needs.  But as indicated above I am unable to make a finding to this effect. 

3. It is a matter of concern that in the face of the allegations by Ms Lively that Mr Merrick sexually abused her, the records of the Department of Community Services show that Ms Caylor informed them that neither she nor Mr Merrick proposed to leave the home.  In my view, this reflects poorly at least to some extent on Ms Caylor’s parental responsibility and attitude thereto.

4. For a period of some 11 years, Ms Caylor left her daughter Ms J in the position of believing that Mr Merrick was her natural father rather than Mr Lively.  It was obvious to me listening to Ms J give her evidence, that this has had a profound effect on her emotional and psychological wellbeing. 

5. Turning to Ms Lively, it is clear that she has inappropriately discussed adult matters with the children.  As also indicated above, she has also presented T and C with very negative views of their mother. 

6. Perhaps some optimism can be gained from the fact that Ms Lively conceded that it was an error of judgment to have discussed her perception of her mother’s failings with the children and also to have revealed to T her allegations that T’s father had sexually abused Ms Lively and that their mother had failed to protect her. 

7. As Ms M noted, Mr Merrick has a passive attitude to his responsibilities as a parent.  He conceded that he should have done much more to assist the children when they were young and that he should have undertaken even more of the parenting responsibility for them.  As indicated above, in my view he should have been much more proactive to enforce his opportunity under the Local Court orders to continue to have a relationship with the children when Ms Caylor stopped this in early 2008.  One could be forgiven for thinking that when the pressure of parental responsibility demanded real energy and commitment, Mr Merrick tended not to have the focus and commitment always to provide what was required.  In addition, his capacity to be able to fund any financial assistance for the children has been non existent.  In my view, this does not reflect well on Mr Merrick in terms of his responsibility as a parent.

8. Mr Lively appears to have been very supportive of Ms Lively so far as parenting of the children is concerned.  He has been the major financial provider for the children over the last nine months. 

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In my view there is substantial uncertainty that Mr Merrick would be able to provide for the children’s emotional and physical needs.  I raised this matter during the course of final submissions.  If the Court was to make an order that the children live with him, I would regard this as the most likely scenario to lead to the institution of further proceedings.  This is because I fear that there is a strong chance that Mr Merrick would not cope with the demands of being a single full-time parent and that he might be forced to place the children either with their mother, Ms Lively or the Department of Community Services.  If this was to happen it would almost certainly lead to the institution of further proceedings in relation to the children. 

2. I would have a similar concern if the children were to reside with their mother.  This would be because of all the difficulties she has experienced in parenting her children.  And particularly because she has expressed her desire to continue residing with Mr Clark.  There would be a real risk that the children would run away.  In such circumstances, it would be inevitable that the matter would come to the attention of the Department of Community Services and this Court.  Further litigation would therefore appear to be inevitable in such circumstances. 

3. I have more confidence that the order that would be least likely to lead to further litigation would be to leave these children with Ms Lively and Mr Lively.  Particularly because, as indicated above, the child protection authorities have no concerns about the children in the care of Ms Lively.

Submissions

Independent Children’s Lawyer

1. It was submitted that the best interests of the children require that they live with their father.  Learned counsel for the Independent Children's Lawyer agreed with the Court’s observation that to place the children to be resident primarily with their father would be to take somewhat of a leap of faith.  But learned counsel said that this would be the least detrimental option.  He said that if one was on a sinking ship then one would have to take a leap. 

2. Learned counsel said that the present situation of the children living in the Lively household was highly unsatisfactory.  This was on the basis that there has been a deterioration in the children’s relationship with both their mother and their father over the last few months and that if they were resident with Ms Lively then there is little chance of any rehabilitation of their relationship with their mother and they would probably lose their relationship with their father.

3. It was submitted that if the children were to live with their mother then they would have no relationship with their older sister and that it would be difficult to see any continuing role in their life in their mother’s household with their father. 

4. In any event it was submitted that the Independent Children's Lawyer’s appointment needs to continue for a period of twelve months to operate as a calming influence.  It was also submitted that the Independent Children's Lawyer should be involved in negotiations about the details for the children to spend time, and communicate, with those parties with whom the children would not be living primarily. 

5. It was submitted that the relationship between Mr Clark and the children was completely dysfunctional and that for this reason there needs to be an injunction to restrain the children’s mother from bringing them into contact with him. 

6. In support of the children residing with their father it was said that he is under medical supervision, responding to direction by his doctor and that although this management was inadequate, at least it was something.  It was submitted that the primary consideration, that is the benefit to the children having a relationship with each of their parents, would be served. 

7. It was submitted that the complaints of sexual abuse against both Mr Merrick and Mr Lively are now ancient and the Court could not be able to make a finding one way or the other about these matters.  It was submitted that there would be no unacceptable risk to the children by either of these persons. 

8. It was submitted that the Court should not place much weight on the children’s wishes because these should be seen in the light of all the other difficulties in the case. 

9. Finally it was submitted that the father had been a significant part of the children’s lives during the period when he and the mother and children were living together and although he has been absent from the children’s lives now for some time this relationship with them could probably be recovered.  It was submitted that no doubt there would be some reduction in their happiness for a period but their long term happiness would be best served by living with their father.

Father

1. Learned counsel for the father was happy to support the continuing role of the Independent Children's Lawyer.  The father agreed with the orders sought by the Independent Children's Lawyer.

2. It was submitted that there is such entrenched and intractable conflict between the parties that the only way that arrangements would work would be for the father to have sole parental responsibility for the children.  It was submitted that the best interests of the children required a balancing of various risks and that on balance this would favour them living with their father.  It was submitted that Ms Lively had said that she did not think that Mr Merrick would ever hurt the children. 

3. It was submitted in response to allegations that the father had perpetrated some violence on the children that he had conceded that on one occasion he had smacked C too hard.  It was submitted that he regretted this and was shaken by this.

4. So far as the flick knife incident was concerned it was submitted that the father had made a plausible explanation, namely that he was showing the mother the flick knife in the context of explaining to her that there were many risks to women out in the general community, especially at night time. 

5. Learned counsel for the father adopted the Independent Children's Lawyer’s submissions about Mr Clark and supported the need for an injunction. 

6. It was submitted that Ms Lively had been manipulating the children and that this was a form of abuse in itself.  However, the father supported an ongoing relationship between Ms Lively and the children.

7. In respect of the nature of the children’s relationship with their father it was submitted that the mother had said that the children love their father and that Ms Lively had said something similar.  It was also submitted that the fact that the children were able to have a 45 minute telephone call with their father earlier this year illustrates the strength of the relationship between the children and their father.

8. It was submitted that the father acted appropriately during the aftermath of C breaking his collarbone whereas the mother had acted with suspicion.  It was submitted that the father had made appropriate enquiries about schooling for the children, new accommodation for them and was confident that such facilities could be provided very quickly if the children came into his care.  It was submitted that there were practical difficulties created by the distance between the parties.  However, the father felt confident that with the assistance of the Independent Children's Lawyer, appropriate arrangements would be able to be put into place for the children to spend time with the other parties and communicate appropriately with them. 

1. Finally it was submitted that orders for the children to reside with their father would be least likely to lead to further litigation because the father is the person most likely to be able to facilitate relationships with each of the other parties.

Mother

1. Ms Caylor submitted that the manner in which the children found their way into Ms Lively’s care was one of deception.  And she said that they have been influenced in their responses to Ms M and Ms R. 

2. Ms Caylor submitted that she would not have any difficulty facilitating a relationship between the children and their father.  She said that during the course of the week of the hearing that she and the father had been able to speak respectfully towards one another.  It was submitted that the children have always lived with their mother and that that position, as was set out in the Local Court orders of 2007, should be returned to in their best interests.  There are established schools on the Central Coast, their friends are there, they would have the benefit of a two-income household.  They would have a network of other responsible adults who, together with appropriate counsellors, could assist them in recovering from the ordeal which the mother says Ms Lively has perpetrated on them. 

3. It was submitted that little weight should be placed on their views, that Mr Merrick would not be an unacceptable risk to the children, that they have a reasonable relationship with their father and that he was only violent to C on the one occasion but the mother believes he is genuinely contrite. 

4. Ms Caylor agreed that it would be in the children’s interests for the Independent Children's Lawyer to have continuing involvement. 

Ms Lively

1. In support of the children’s interests being best served by continuing to reside with Ms Lively, it was submitted that to remove them from her household would be an upheaval for the children.  This was on the basis that they are vehemently opposed to residing other than with Ms Lively.

2. It was submitted that it would be a leap of faith to change their living circumstances when the objective evidence pointed to them being safe, secure, happy and away from all the difficulties which they had previously experienced. 

3. Learned counsel for Ms Lively agreed that the Court would not be able to make any positive finding one way or the other in respect of the allegations of sexual abuse against both Mr Merrick and Mr Lively. 

4. Learned counsel pointed to various notifications having been made to the child protection authorities about risk to the children over the years while living in their mother’s household.

5. It was submitted that Ms Lively was continuing to live in her marriage with Mr Lively and that their mother placed the children into Ms Lively’s care with that knowledge.  Ms Lively determined that she would not return the children to their mother because of risks she perceived by statements made by the children and also from her personal experience of her mother’s parenting during her childhood. 

6. It was submitted that Ms Lively would be able to facilitate a continuing relationship between the children and their father.  She had initiated restoration of the contact between the children and their father as demonstrated by the telephone conversations which they had been having with him fairly regularly. 

7. It was submitted that Mr Clark should not be brought into contact with the children.

8. It was submitted that while Mr Merrick loves his children he has not demonstrated a capacity to do anything about maintaining a relationship with them.  This is illustrated by the fact that his parents and others have undertaken the physical requirements in respect of the children’s contact with him.  It was submitted that he is a passive person who is easily dominated and does not inspire confidence that he would be able to manage challenging situations in the interests of the children such as if T simply ran away. 

9. The overall submission was that the children are, for the first time in their lives, in a happy and stable environment and that neither the mother nor the father has established a sufficient case for their removal from this environment.

Conclusion About Best Interests

1. T and C have lead somewhat deprived lives to this point.  Neither of their natural parents has been sufficiently available to them.  This is in both an emotional and physical sense.  Their mother has had a struggle to provide for their most basic physical needs.  After their parents separated, Mr Clark came into their lives.  There have been difficulties in their relationship with him.  C, in particular, has a sense that the needs of T and himself fall in well behind those of Mr Clark so far as their mother is concerned.  I am satisfied that they are fearful of Mr Clark having seen for myself his serious lack of impulse control. 

2. Even when the family was intact, the children complained that their father had been unable to get out of bed to attend to their needs including their school needs.  Mr Merrick conceded that this had been a characteristic of home life, at least over a period of three years.  Following separation, the children continued to have some involvement with their father as referred to above.  But this broke down and he has not participated in their lives in any real sense for in excess of two years. 

3. Against this difficult background, it is little surprise that the children are expressing a strong wish to remain with Ms and Mr Lively.  Ms and Mr Lively are providing for the children’s physical and emotional needs.  That the children are enjoying this is evident in their clear expression of views and in T’s threats to run away if she is returned to her mother’s care.  Ms R, the child protection Team Leader, her staff, the headmaster and teachers at the children’s school have attested to the fact that the children are now very happy and apparently thriving in their current circumstances.  

4. Ms M, Family Consultant, has said that she thinks the children are presenting a far too rosy picture of their current circumstances and family life with the Livelys.  But in my view, this must be considered against the background of deprivation to which I have referred. 

5. Both learned counsel for the father and the Independent Children’s Lawyer respectively, and Ms M, urge the Court to place the children with their natural father, Mr Merrick. There is some initial attractiveness in this. It would serve the first of the objects set out in s 60B(1)(a) of the Act, namely, to ensure that the children have the benefit of both of their parents having a meaningful involvement in their lives. This is because Ms M has indicated that in her view the father would be likely to facilitate the continuation of relationships between the children and their mother and their sister, Ms Lively. On the other hand, Ms M thought it unlikely that if the children remained with Ms Lively that there would be any opportunity for continuation of their relationships with each of their natural parents.

6. In my view, there are a number of difficulties with such a proposal. And such a proposal, in my view, would not serve the other objects of Part VII of the Act, particularly ss 60B(1)(b) and (c). These objects, as indicated above, are to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and to ensure that children receive adequate and proper parenting to help them achieve their full potential. In my view, there must be real concerns whether if the children were placed with their father, both of these objects would be likely to be achieved.

7. Their father has never had the sole responsibility for their care.  He said that when he and the children’s mother were living together they shared the parenting duties and that he was an equal caregiver.  The mother denies this and the children have been critical about his capacity even to get out of bed before 11:00 am as I have said.  He conceded that this had been a problem.  Until this week when the children had lunch with their father, they had not spent any time directly with him since January/February 2009, when Ms J took them to visit him for several days.  Before that, the last time the children spent time with him was for eight weeks comprising the school holidays in December 2007 and January 2008 plus a couple of additional weeks.

8. It is also significant, in my view, that the physical arrangements for collection and return of the children in respect of each of these periods were undertaken not by the father but either by Ms J or by his parents.  After the mother stopped the children from having time with their father as required under the orders of 2007, the father was unable to use the procedures available under the law to achieve his time with the children in accordance with those orders. 

9. The father was asked what he would do in the event that T ran away from him as she did from her mother’s home previously and threatened recently to do if she was restored to her mother’s home.  The father said that he would enlist the support of his parents, school authorities and a variety of others to assist him in managing any such situation.  The father also indicated that generally, he would rely on the support of his parents and others to assist him in his parenting responsibilities.  In my view, his parents must be regarded as an extremely limited resource for this purpose.  Both his parents are 76 years of age and suffer from the serious health issues referred to above.  The father said that he spends much of his time assisting them. 

10. In terms of being able to provide for the children’s other physical needs, the father is on a disability pension.  Apparently he has neck and shoulder difficulties.  He has no capacity for employment.  He lives with his parents but has made enquiries of the relevant housing authority and is confident that in the event that the children were to be resident with him, he would be able to obtain an appropriate home in which he and they would reside. 

11. The father suffers from the serious mental health condition referred to above.  The father said that his medication is monitored and adjusted by his general medical practitioner. 

12. In all these circumstances, in my view, the father’s capacity to be able to parent the children is highly questionable.

13. So far as the appropriateness of residence of the children with their mother is concerned, in my view, there appear to be insurmountable difficulties.  As indicated above, the mother has struggled to provide for all her children.  Their circumstances have been the subject of numerous notifications to the Department of Community Services in New South Wales.  Ms Lively went into the care of the Department at 13 years of age only to self-place with her father, Mr B.  Life with her mother turned out to be catastrophic for Ms J who, as indicated above, described herself as a victim, rather than a daughter, of her mother.  She described in the clearest of terms lack of availability of her mother to her.  There have also been real problems with Ms S. 

14. On any objective view of these and all the other matters detailed in the evidence in these proceedings, one could not be confident of Ms Caylor’s capacity to appropriately parent the children even at a most basic level.  But her circumstances are even more complicated than that.  Ms Caylor has indicated to the children in the clearest of terms, in my view, that she places priority on her relationship with Mr Clark above the interests of the children.  The children are fearful of Mr Clark and, in my view, with good reason.  As I have said, such are my concerns about his lack of impulse control that in no circumstances should the children be exposed to any possibility of his completely inappropriate and frightening behaviour.     

15. I return to what Ms and Mr Lively have to offer the children.  Their relationship challenges society’s norms.  There must be concern about this.  Having said this, they have been married apparently with reasonable happiness now over many years.  Their own children K and R are not the subject of any concern by the child protection authorities.  The family has not come to the attention of the child protection authorities other than recently by reason of the addition thereto of T and C and the circumstances in which they came into Ms Lively’s care.  There is no question that the relationship between Ms Lively and her mother is appalling and destructive.  It would be unrealistic to anticipate that any amount of counselling intervention or therapy could change that situation. 

16. Having said that, I do not have the view that Ms Lively kept the children in her care, rather than returning them to their mother, by reason of vendetta or revenge.  She knows only too well the shortcomings in her mother’s household, particularly given the children’s complaints against Mr Clark now over a long time.  I accept that she formed the view some time ago that the children’s interests were not being served in that household and determined to do something about it.  I have the view that she loves the children and has a genuine concern for their welfare.  Despite all the complications and what is undoubtedly considerable expense, it would appear that Mr Lively supports her in her commitment to the children. 

17. The physical circumstances of the Lively household are quite strained.  They live in a two bedroom cottage at Town 1.  The children sleep in bunk beds in the same bedroom.  Soon there will be a baby to add to the family’s needs.  Ms R and her colleagues have visited the home and have made no complaint about its cleanliness and the hygiene of Ms Lively.  Mr Lively proposes soon to move the family to Town 2 where they would have a four bedroom home available to them.  As I understand it, this would involve a change of employment position for him from Town 1 to at or near Town 2. 

18. As I have said, the children are settled and are very happy in their present circumstances.  The objective evidence about their happiness and welfare is encouraging.  It is said by learned counsel for Ms Lively that they are living in circumstances of settlement, happiness and tranquillity. 

19. What the Court is being asked to do is to remove them from such circumstances which offer at least some certainty and confidence to a situation with their father, the future of which is largely unknown.  Even making some allowance for the reservation articulated by Ms M that the children probably have a too rosy view about their current circumstances, I described such a removal to Ms M as being somewhat of a ‘leap of faith’. 

20. It is true that, given the conjunction of a fair degree of good fortune, continuing management of the father’s mental health condition to enable “good enough” parenting by him and what one would hope would be an adequate level of support from the housing authorities, social welfare authorities, the community, family and friends, what is offered by the father might be sufficient to fulfil the fundamental needs of the children.  But in my view the risks are too great for these children, particularly when one looks at their troubled history to this point.  I have much more confidence that more of their needs will be able to be served in the family of Ms and Mr Lively, with all its complications and its limitations, than I have about the chances of a better life for the children with their father. 

21. It is a question of weighing and balancing risks.  The possible risks to them in the household of Ms and Mr Lively against the inevitable risks in the full time care of their father.  I perceive the risks to them of the latter as being heavier than those of the former.  

22. Accordingly, in my view, the best interests of the children require that they live primarily with Ms Lively.

Parental Responsibility

1. The presumption that the children’s parents are to have equal shared parental responsibility for them (s 61DA(1)) must give way to what their best interests require.  It would be completely unrealistic for Ms Lively to share major decision making about the children with their parents, especially with their mother.  It would be likely simply to lead to more conflict.  Accordingly, Ms Lively shall have the sole parental responsibility for them.  But in relation to major decisions Ms Lively will be required to notify each of the parents of the decision intended to be made and to take account of any views expressed by the parents before making the decisions.

Time Spent and Communication

1. As indicated above, distance between the proposed residence of the children in Tasmania and that of each of their parents is a difficulty.  Learned counsel for the Independent Children's Lawyer submitted that the arrangements for the children to spend time with the non-resident parties be left on the basis that he would negotiate these with all of the parties.  I accept that in all the uncertain circumstances of this case that is probably the most realistic course. 

2. I shall give all parties leave to re-list the matter for further submissions in relation to the children spending time and communicating with their parents.  It would seem that the only way for the parents to have any involvement in the children’s daily routine and significant occasions and events would be for the parents to visit in Tasmania from time to time.  Otherwise, it will be appropriate for the children to visit each of their parents in school holidays to the extent that funds of the parents and Ms and Mr Lively permit.

I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 29 July 2011.

Associate:     

Date:              29 July 2011