Ninsel and Ninsel

[2018] FamCA 414

FAMILY COURT OF AUSTRALIA

NINSEL & NINSEL [2018] FamCA 414

FAMILY LAW – CHILDREN – International relocation – Where the children have not had any time with the father for over two years.

Family Law Act 1975 (Cth) ss. 60CA, 60CC, 61DA
Evidence Act 1995 (Cth)

U v U (2002) 211 CLR 238
Boyle & Zahur and Anor (No. 2) (2017) FLC 93-814
Molloy & Reid [2018] FamCAFC 89
Goode & Goode [2006] FamCA 1346

APPLICANT: Ms Ninsel

RESPONDENT: Mr Ninsel

FILE NUMBER: BRC 9881 of 2016

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 26, 27 & 28 February and 1, 2, 14, 15 & 19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr J Brasch QC

SOLICITOR FOR THE APPLICANT: Leishman Legal

COUNSEL FOR THE RESPONDENT: Mr J Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Family Law Solutions

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr K Fleming SC

INDEPENDENT CHILDREN’S LAWYER Berck Solicitors

Orders

1. That the following parenting orders are made in respect of the children, X born … 2010 and Y born … 2012 (“the children”).

Parental responsibility

1. That in exercising parental responsibility pursuant to Section 61C of the Family Law Act 1975 (“the Act”) the mother and father shall consult with one another in relation to decisions to be made about major long term issues (as defined in the Act) in relation to the children.

2. That the mother and father do all things and sign all documents required to enrol the children at B Primary School.

3. That the mother and father shall have sole responsibility for making decisions about the day to day care, welfare and development of the children, during the time that the children are in their care.

Passports

1. That the mother and father shall sign all documents, give all consents and do all necessary acts and things as may be necessary to enable the children to be issued with an Australian passport and for that purpose the father return to the mother’s solicitors within seven (7) days of the date of this Order, passport Applications for each of the children with the relevant sections required to be completed by the father completed.

2. That the mother and father sign all documents, give all consents and do all necessary acts and things as may be necessary to renew an Australian passport for the children no later than six (6) months prior to the expiry date of the passports.

3. That the passports are to be held by the mother.

Living arrangements

1. That the children live with the mother and the mother be permitted to relocate with the children to New Zealand on or after 30 September 2018.

2. That until the children relocate to New Zealand, the children shall spend time with the father as follows:

   (a)On no more than one (1) day each week (when not otherwise spending time with the father under this Order), between 9.00am and 5.00pm on the father giving to the mother not less than seven (7) days’ notice in writing (including by text message);

   (b)From 9.00am Saturday, 16 June 2018 to 5.00pm Sunday, 17 June 2018;

   (c)Commencing Friday, 29 June 2018 as follows:

   (i)9.00am Friday, 29 June 2018 to 5.00pm Sunday, 1 July 2018;

   (ii)9.00am Friday, 13 July 2018 to 5.00pm Sunday, 15 July 2018 (two nights);

   (iii)9.00am Friday, 27 July 2018 to 10.00am Monday, 30 July 2018 (three nights);

   (iv)9.00am Friday, 10 August 2018 to 10.00am Tuesday, 14 August 2018 (four nights);

   (v)9.00am Friday, 24 August 2018 to 10.00am Monday, 27 August 2018 (three nights);

   (vi)9.00am Friday, 7 September 2018 to 10.00am Monday, 10 September 2018 (three nights); and

   (vii)9.00am Friday, 21 September 2018 to 5.00pm Friday, 28 September 2018 (seven nights).

3. That when the children relocate to New Zealand, the children shall spend time with the father, unless otherwise agreed in writing, as follows in Australia:

   (a)From 2019 onwards for all of the New Zealand end of term one (1) school holidays, save that the children be returned to the mother the Friday before school commences;

   (b)From 2019 onwards for the first half of the New Zealand end of term two (2) school holidays;

   (c)From 2019 onwards for all of the New Zealand end of term three (3) school holidays, save that the children be returned to the mother the Friday before school commences;

   (d)For half of the New Zealand December/January school holidays each year commencing in 2018 with the first half of the holidays and in 2019 with the second half of the holidays and alternating each year thereafter, the effect of which is to ensure the children spend Christmas Day in one year with one parent, and in the other year, with the other parent, with Christmas Day spent with the father; and

   (e)On the giving of seven (7) days’ notice in writing to the mother for one (1) weekend each New Zealand school term from after school on Thursday until before school the following Monday, in New Zealand.

4. For determining “half”, the school holiday period will commence on the last day of school term and conclude on the Friday before school resumes.  To calculate half the mother and father will use the number of nights of each school holiday period, divided by two (2), and in the event that there is an uneven number of nights then the father shall spend the extra night with the children in odd numbered years and the mother shall spend the extra night with the children in even numbered years.

Changeovers

1. That in relation to changeovers:

   (a)until the children relocate to New Zealand, unless otherwise agreed in writing, changeovers in respect of time under Order 9 hereof shall occur at the C Cinema and shall be facilitated by the mother’s nominee known to the children and the father or his nominee;

   (b)after the children have relocated, changeovers for school holidays as prescribed by Order 11 shall take place:

   (i)at the commencement of each holiday period at Brisbane International Airport; and

   (ii)at the conclusion of each holiday period at City D International Airport.

   (c)If the father exercises the opportunity to spend time with the children in New Zealand, changeovers shall occur at the children’s school, unless otherwise agreed in writing.

Communication

1. That:

   (a)the parent who does not have care of the children shall communicate with the children by telephone or Facetime twice per week between 6.30pm and 7.00pm (by reference to the time where the children are at the time of the call) as agreed and if not agreed on Wednesday and Sunday;

   (b)the other parent will initiate and facilitate such calls and ensure that the children have privacy during the calls; and

   (c)the parent with the care of the children shall initiate the telephone or Facetime with the children’s other parent on Mother’s Day, Father’s Day, the children’s birthdays and Christmas Day.

Miscellaneous

1. That the father attend and complete a Domestic Violence Behaviour Change Program and provide a certificate of completion to the mother’s solicitors within sixty (60) days.

2. That the mother and father shall:

   (a)keep the other parent informed of the names and addresses of any treating medical or health practitioners who treat the children and hereby authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and

   (b)inform the other parent by text message as soon as reasonably practicable of any urgent medical condition, significant health issue or illness suffered by the children.

Authorities

1. That the parents authorise, by this Order, the school attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

Restraints

1. That both parents respect the privacy of the other parent and not question the children about the personal life of the other parent.

2. That both parents be restrained from:

   (a)denigrating the other party to the children, or within their presence or hearing;

   (b)discussing these proceedings with the children or within their presence or hearing;

   (c)discussing any issues or suggestions of abuse with either child, or within  their presence or hearing;

   (d)physically disciplining the children; and

   (e)consuming alcohol above the legal blood alcohol driving limit while the children are in their care.

3. That the father shall not engage in any sexual activity including the accessing of pornography either electronically or in hard copy in the presence or hearing of the children.

4. That the parties shall file and serve any written submissions within twenty one (21) days indicating any variations to the proposed order for the “travelling fund” referred to at paragraph 135 of the Reasons delivered 8 June 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ninsel & Ninsel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 9881 of 2016

Ms Ninsel

Applicant

And

Mr Ninsel

Respondent

REASONS FOR JUDGMENT

Introduction

1. So called international relocation cases require careful analysis, and create obvious tensions between the often legitimate desires of a parent to move on with their life, and the role as a parent who must have their children’s best interests uppermost in their consideration, whilst supporting the rights of the children to maintain a relationship with a parent who does not wish to relocate.

2. This dispute reveals these tensions, but have been exacerbated by the lack of any physical time between the children and their father from October 2015 to March 2018.  That this occurred is explained partly by the mother’s insistence that no contact occur, and partly by the mother living in New Zealand with the children from October 2015 to their return 12 months later.

3. The mother’s firm position that no time occur, based on allegations of sexual abuse, violence and fears held by the children, dissolved spectacularly during the hearing of the matter which commenced on 26 February 2018.  The reasons which follow seek to explain the Court’s decision in this difficult matter in deciding whether the children should be permitted to live with the mother and relocate to New Zealand or, as the father seeks, remain in Australia in his primary care.

contextual history

1. Statements of fact hereafter should be construed as findings of fact.

2. The Applicant mother Ms Ninsel is 40 years of age and born in New Zealand.  The Respondent father Mr Ninsel is 39 years of age and born in Australia.  After meeting when travelling, the parties commenced cohabitation at around the time of marriage in 2006 in Australia.

3. The parties were blessed with the birth of two healthy children – their son X in 2010 (and is now aged seven and a half years) and their daughter Y in 2012 (and is now aged five and a half years).

4. During the early years of the relationship the parties appeared to happily interact however the mother claims that after the birth of Y, the father’s demand for sex and his behaviour generally towards her became more aggressive.  There is no evidence that the mother ever complained or reported to any family member or health professionals increasing unhappiness in the relationship and, from her perspective, the reasons for her concerns.

5. On 17 August 2015 an incident occurred between the parties, upon which quite different versions were given to the Court.  Because of the importance of that event, I deal with it discretely below.  I am satisfied that at this time, plans had been made for the family to spend some time in New Zealand visiting the mother’s family later in the year, however the mother decided, after the incident on 16 August 2015, to seek to go to New Zealand earlier, eventually leaving on 2 October 2015.  The mother indicated to the father that the main reason for going early was the poor health of her sister.  The father did not oppose the mother taking the children to New Zealand to commence their holiday early.  He even took them to the airport interrupting his business day.  At least at October 2015, it was the parties’ expressed intention that the father should join the family for Christmas in New Zealand.

6. I have formed the view, on all the evidence, that at least early after her arrival in New Zealand, the mother (supported by her family) had formed a view that it was in the best interests of the children and herself, to remain in New Zealand permanently.  Her mother had been visiting the family in Australia between 20 and 27 September but the mother did not inform her mother of her asserted fears and of the incident on 16 August until the maternal grandmother had returned to New Zealand on 28 September, by which time, without the father’s knowledge, she had transferred to her mother a sum of $28,000 to repay a joint debt.

7. Within a week of arriving in New Zealand the mother had her first consultation with a local Psychologist Ms E on 8 October – the first of approximately 50 visits.  Ms E gave evidence in the Hague Convention proceedings and in the proceedings in this Court.

8. On 6 November 2015, the mother sent an email to the father – see Annexure “CMN 2”.  The letter speaks for itself but asserted inter alia that:

   Before I left Australia I was seeing a doctor in [F Town] for the injuries to my trachea from the night you strangled me.  On top of the trachea bruising I have also experienced a massive emotional reaction…

   I am getting help from a clinical psychologist in City D city and she has been incredible in helping to piece together what is happening for me.  She has diagnosed me with depression brought on from long term verbal and psychological abuse and then the events in the last few months before I came to NZ.

   …

   You have told [X] to keep secrets from me and to not tell me when you have had him playing R18 play station games with you…

   -    The mother further alleged the father had used foul language in front of the children as well as “inappropriately commenting on female bodies and sexual comments about me and my body in front of the children”, with a comment made at the dinner table directed to the mother that “your face looks like it has seen a cock”.  The father in his cross examination admitted he made this comment, which he said was inappropriate and he regrets saying those words.

   “Your drinking every weekend of at least a carton of beer and always at kids birthday parties or any other social event has been getting progressively worse…

   …

   You have progressively become more verbally abusive and increased your pornography addiction on your mobile phone.  You have said numerous times to me that you have a better relationship with your phone than me, you have told me how much nicer you would talk to me if you got more sex and you have told me how much you masturbate to your phone.

   The mother concluding by stating that “This pornographic stuff is very distressing to me and has continually broken my spirit.”

9. Although the mother did not say she felt the relationship was finished, she suggested that he “should come to NZ so you and I can have a face to face discussion about our future”.

10. The father elected not to travel to New Zealand.  He acknowledged that the mother’s step father offered to pay for his airfares.  The father says and I accept, he became distressed by the letter and the increasing difficulty that he was experiencing contacting the children by telephone.  By early December 2015, the father decided he would no longer try to contact the children.  He had, I accept, by this time had some robust telephone discussions with the mother’s step father Mr G.  The father felt Mr G was interfering in his marriage whilst Mr G felt he was protecting the mother who he felt was “unwell” and also X, who he claims had disclosed “serious events he has been subjected to by you [the father], and also what he had witnessed and heard between yourself and [Ms Ninsel]” (see Annexure “DDM-1” dated 31 December 2015).  The father did not further engage with Mr G and said in cross examination that he did not go to New Zealand as he feared for his safety because Mr G had “connections”.  This allegation by the father was vague and I do not accept the evidence reveals any threats to his physical safety if he was in New Zealand – although the mother’s extended family, I accept, do not think well of him personally.

11. It is likely that the mother and her family were not happy that the father immediately caused the New Zealand Central Agency to commence proceedings in the New Zealand District Court under the Hague Convention, for an order that the children return to Australia.

12. I deal with the proceedings in New Zealand, in a succinct manner below, but noted that apart from the evidence of herself and family, the mother engaged professional expert evidence from not only Ms E, but also Ms H (who provided counselling for X over eight visits between 31 March 2016 and 18 May 2016) and Psychiatrist Dr J (who the mother initially consulted on a therapeutic basis on 11 January 2016).

13. On 14 June 2016 the New Zealand Family Court ordered the mother return the children to Australia.  As the mother was perfectly entitled to do, she exercised her right to appeal the decision to the High Court of New Zealand, with the Appeal Court hearing the Appeal on 23 August 2016 and delivering its judgment on 31 August 2016, dismissing the Appeal and ordering the mother to return the children to Australia by 12 October 2016.

14. The mother returned in late September 2016 to Australia, initially without the children, and applied for and obtained a Temporary Protection Order in September 2016 in the Magistrates Court, with proceedings filed on 30 September 2016 in this Court seeking relocation to New Zealand and with the father to spend physical time with the children as agreed.

15. The children X and Y (then aged nearly six years and four years respectively) returned to Australia accompanied by the maternal grandmother Ms K, on or about 16 October 2016.

16. By this date 12 months had elapsed since the children had spent any physical time with the father.

17. Between the first Court date in this Court on 24 November 2016 until the first day of the listed five day hearing before me on 26 February 2018, orders had been made relating to procedural matters including:

    a)the appointment of an Independent Children’s Lawyer (“ICL”);

    b)preparation of a family report, which resulted in Family Consultant Ms L interviewing and observing the family on 6 April 2017 and producing a report on 10 May 2017.  The father was not observed with the children for this report;

    c)the ICL arranged for the parents to be separately assessed by a Psychiatrist Dr M in July 2017, with his report being produced.  Dr M was the subject of cross examination; and

    d)as Ms L was not available when the Registrar decided an updated family report was necessary, the order for an updated report (conducted on this occasion by Family Consultant Ms N) resulted in interviews and observations on 13 December 2017 and a report dated 11 January 2018.  Again, for reasons which I explore below, the father was not observed with the children.

18. The result of these events meant that until an observation was undertaken at the Court’s express direction during the hearing (on Thursday morning 1 March 2018), a period of nearly 29 months had elapsed between physical interaction of any nature between the father and X and Y and despite the mother having been living in O Town for over 17 months.  The father at all times remained living in P Town, moving in with his mother in early 2017 after the family home was sold.  In passing, I record, that despite these ongoing parenting proceedings and with both parties competently represented, it seems no one thought it was appropriate to enliven the Court’s property jurisdiction that might have allowed the Court to consider orders for property adjustment.  Sadly, unless the parties are able to negotiate a resolution after these parenting proceedings are concluded, fresh proceedings will have to be filed.  The Court was made aware that apart from a small business (of uncertain value), a sum slightly exceeding $100,000 has remained in Trust since the sale of the family home in January 2017, which has been the subject of an earlier agreed distribution to the wife of $20,000.

1. Later in these Reasons I deal with a number of significant discrete issues which have been mentioned in this broad overview of the history of the parties’ relationship.  It is neither necessary, nor indeed possible, to deal with every moment of controversy raised in the parties’ competing cases.

competing proposals

1. As the history reveals, the position of the Applicant mother in this case dramatically altered during the course of the hearing.  In her Case Information document filed 22 January 2018, the mother’s proposed order sought essentially that:

   -    the children live with the mother;

   -    the mother be permitted to relocate to New Zealand with the children;

   -    the mother have sole parental responsibility, but will keep the father informed of significant decisions made and school progress; and

   -    “That the children not spend time with or communicate with the father unless agreed in writing between the parties”.

2. Considering the complete absence of time between the children and the father after they returned to Australia to the time of the hearing commencing, I would have held little initial optimism the parties could have agreed on any time arrangements.

3. The Court having expressed concerns about the lack of specifics articulated in the proposed order, Queen’s Counsel for the mother tendered before the mother’s case closed a more detailed proposed order (see Exhibit 11).  Critically, the mother proposed orders which contained a notation that “The mother proposes these orders having received the updated addendum from [Ms N] which described the positive interaction between the children and the Father”, set out at proposed order 9, the time the children would spend with the father, contemplating “that upon the father completing a domestic violence program” that the father have extensive holiday contact with the children in Australia (or I infer in New Zealand if he elected to do so) expressed as follows:

   (a)      In 2018, for the first half of the New Zealand end of term 1 school holidays;

   (b)      From 2019 onwards for all of the New Zealand end of term 1 school holidays, save that the children be returned to the mother the Friday before school commences;

   (c)      For the first half of the New Zealand end of term 2 school holidays;

   (d)      In 2018, for the first half of the New Zealand end of term 3 school holidays;

   (e)      From 2019 onwards for all of the New Zealand end of term 3 school holiday, save that the children be returned to the mother the Friday before school commences;

   (f)       For half of the New Zealand December/January school holiday each year commencing in 2018 with the first half of the holidays and in 2019 with the second half of the holidays and alternating each year thereafter, the effect of which is to ensure the children spend Christmas Day in one year with one parent, and in the other year, with the other parent;

   (g)      On the giving of seven (7) days’ notice in writing to the Mother for one (1) weekend each term from after school on Thursday until before school the following Monday.

4. Furthermore, if the children were living in New Zealand with the children the father could communicate by telephone or Facetime twice per week.  Whilst there is contested evidence as to why the father ceased initiating telephone contact with the children from December 2015, it is apparent that the mother’s position that the father have no contact with the children after they returned to Australia, coupled (it seems to me) by the father’s lack of persistence in seeking the Court to make some orders (even for telephone time), combined to create a highly regrettable situation where for a period from September 2016 to February 2018 and despite the parents living around two and a half hours’ drive apart in Australia, no physical or telephone/Facetime contact occurred at all.

5. The mother’s final position, confirmed when final submissions were made on 19 March 2018, altered again when the mother considered an order then urged as in the best interests of the children by the ICL.  For completion the order has been marked Exhibit 31.  The proposed order by the ICL is marked as Appendix One to these Reasons, and is explained briefly below, however the essential difference contended for finally by the mother, permits her relocation to New Zealand occurring “on or after 27 April 2018”, by which time the children would have spent unsupervised time, including overnight time with the father, where the father could not have completed any domestic violence behaviour change program.  The mother’s very experienced Counsel did not seek leave to recall the mother (who finished her evidence on the second day of the hearing), to explain her reasons for changing her proposals so significantly – leaving Counsel in the invidious position of trying to articulate the reasons without a firm evidentiary foundation.  This is but one concerning aspect of the way the mother’s case, both in New Zealand and here, was conducted.

6. In stark contrast to the mother’s position, the father did not significantly alter his position by final submissions as to what orders meet the best interests of the children X and Y.  The father rejected completely the proposal of the ICL (Appendix One), at least fundamentally because he had vigorously opposed the children relocating their residence permanently to New Zealand, either with a delayed departure or at all.

7. In these circumstances, his minute of order is set out in his Summary of Argument filed 19 February 2018 as follows:

   1.        That the children of the marriage [X] born … 2010 and [Y] born … 2012 (“the children”) live with the husband.

   2.        That the husband shall have sole parental responsibility for the children.

   3.        That the children spend time and communicate with the wife at all such times as may be agreed by the parties and failing agreement as shall be ordered by the Court.

   4.        That the passports for the children shall be held by the Registrar of the Family Court at Brisbane and shall not be released to either parent without the written agreement of both parents or an order of the court.

   5.        That an injunction issue restraining the wife from taking or sending the children to a place outside Australia and that the children’s names be placed on the Family Law Watchlist.

8. The father did not further particularise the parameters for any time the children would spend with the mother, if they live with him – even in circumstances where the father was aware that if the children were not permitted to relocate to New Zealand, the mother would remain in Australia.  The father says, at paragraph 120 of his trial Affidavit, that:

   120.    The time the children spend with [Ms Ninsel] will depend on a number of factors including how [Ms Ninsel] deals with any decision the Court makes and whether she is prepared to acknowledge what she has done to the children.

9. As I discuss further in these Reasons, one of the understandable criticisms of the father (and it is to some degree reflected in evidence at paragraph 120) is that he has been emotionally hurt by the events just prior to separation and those since (significantly the lack of time with his children), for which he firmly blames the mother and expects her to bear consequences for her actions.  However, as the succinct summary of the principles the Court in any parenting case is required to apply sets out above, that is not the test.  To be fair, some of the mother’s behaviour and tactics similarly reflect at times a view that the father must bear some adverse consequences for what the mother believes is his past behaviour.

10. In such circumstances, and where it is always expected by the Court that the understandable emotional baggage parents carry into these types of disputes are not likely to influence the ICL’s submissions, quite properly, the ICL did not articulate a form of order in her Case Information document filed 18 January 2018, preferring to await the testing of all the evidence.  Having then had a chance to do so, the ICL contended for the minute of order set out fully in Appendix One to these Reasons, and for completeness marked as Exhibit 32.

11. Whilst the proposed minute is clear, the ICL specifically contends that:

    a)the parents should retain equal shared parental responsibility;

    b)the children should live with the mother and they should be permitted to relocate to New Zealand by 16 July 2018; and

    c)a regime for increasing unsupervised time between the children and the father is proposed which contemplates immediate overnight time culminating in the children spending a continuous period of eight nights between 6 July 2018 to 14 July 2018.

12. During the course of final submissions, and in circumstances where:

    d)neither party has enlivened this Court’s jurisdiction to consider property adjustment; and

    e)accordingly, there is limited evidence of the current capacities (and no evidence at all of the future capacities) of the parents to contribute to Trans-Tasman airfares; and

    f)the Court is aware that funds exceeding $100,000 are held in Trust in Australia which represents some of the balance of nett proceeds of sale of the former family home,

    the Court raised whether the parents would consent to an order that, if the children were permitted to relocate, a sum of $30,000 be retained to be used to meet, for a time, the costs of travel between Australia and New Zealand and, because of the children’s ages, at least, for an accompanying adult to travel with them.  Through their respective Counsel, both parents indicated they would agree with such an order.

13. I note that the mother, without articulating a particular proposal, made it clear that if the children were not permitted to relocate to New Zealand, that she would remain in Australia.  I do not regard such a situation if arising as creating some sort of “fall back” position and do not regard the likelihood of this mother remaining in Australia rather than, in effect, abandoning them as a form of “alternate proposal”.  To do so would be contrary to authority (U v U (2002) 211 CLR 238 at [248-9] per Gaudron J and at [278] per Kirby J; Boyle & Zahur and Anor (No. 2) (2017) FLC 93-814 at [43] and Molloy & Reid [2018] FamCAFC 89 at [68]).

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode [2006] FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Credit issues

1. In circumstances where the mother, in particular, alleges that the father has sexually assaulted her; has committed acts of domestic violence upon her and has also exposed X to sexualised behaviour and images, it may well have been reasonable for either party to apply to dispense with the provisions of s.69ZT of the Family Law Act 1975 (“the Act”) in preference for the application of the otherwise excluded provisions of the Evidence Act 1995 (Cth). As no application was made by either party the admissibility of evidence is to be determined by reference to s.69ZT(1) of the Act. Exhibit 1 was tendered by the parties to reveal objections to evidence raised by the father, and the mother’s response. I have taken those into account.

2. A number of events are raised by the parents in respect of their adult relationship, and during and before separation which touch on findings the Court must make to demonstrate its exercise of discretion and why the orders at the commencement of these Reasons, are in the best interests of the X and Y, are hotly disputed.  Each Counsel say many of the “he said/she said” issues in dispute can only be resolved by the Court reaching a conclusion as to credit.  Firstly, it is not necessary (or desirable considering the ongoing relationship which must continue for the benefit of the children), to deal with every event.  I do not do so.

3. In most parenting cases, parents are generally:

   -    reluctant to concede any suggestion about their conduct that could be adverse to their position;

   -    often exaggerate or embellish the version of events to create a good parental picture of them or a poor one for the other parent; and

   -    at times seek to minimise the effect of their behaviour on others – particularly the children.

4. Having seen both parties under vigorous cross examination by skilled and experienced advocates, I saw in both parties glimpses of each of the often observed witness presentation set out earlier.

5. The mother presented in the witness box at times as distressed and emotionally fragile.  Although I have no doubt that the necessarily focused and persistent cross examination of Counsel for the father was a difficult situation for the mother to endure, it is also difficult to be certain how the Court can reconcile, without any evidence, the mother’s behaviour in:

   -    being unable to provide instructions to her Counsel Dr Brasch QC, after the Court indicated it would consider on the morning of the third scheduled day of hearing, an order that the children be observed by the Family Consultant Ms N, interacting with the father  - something amazingly that had not occurred during two prior family report assessments by two different Consultants; and

   -    changing her position as reflected in the minute of order tendered on 2 March 2018 supporting the children having unsupervised time with the father; and

   -    changing her position again at final submissions; and

   -    for the first time since proceedings commenced initially in the New Zealand District Court in respect of Hague Convention proceedings and during these proceedings, submitting that it is not urged that the father presents as an unacceptable risk to the children of sexual harm.

6. The father’s Counsel conceded in his oral submissions that the father is “not a good witness or a good litigator” but that does not mean he is not a good father.  I agree with this submission, and if the mother’s proposal is accepted as a true and genuine expression of her beliefs, then she also accepts the children will benefit from an ongoing relationship with their father.  The father was at times evasive, equivocal and vague.  He tried to make minor concessions, but his testimony reveals the depth of how frustrated he had become with the mother and the family law system with some of his responses.

7. Within the context of these findings, two events are of significant consequence and I now deal with them discretely as follows.

The incident on Monday, 17 August 2015

1. This incident was variously described as the “strangulation event” (by the mother) or the “dog food” incident (by the father), the latter description being adopted by the last Family Consultant Ms N.  Even the continued difference in how the parties saw the incident, speaks volumes in my view.  What is clear, is that an interaction between the parents occurred at their home and each parent points to the other parent as the instigator through their behaviour.

2. Although important, I do not regard it as necessary (for the reasons which will become apparent) to analyse every source of evidence and information offered to the Court about this event, but have taken into account the following sources of information principally in making findings about this incident:

   -    The mother’s Police statement of 24 November 2015;

   -    The mother’s consultations with Ms E;

   -    The New Zealand Police statement taken on 14 January 2016;

   -    The father’s Affidavit in Hague Convention proceedings (New Zealand) dated 14 March 2016;

   -    The mother’s statement to Queensland Police on 11 February 2016;

   -    The father’s Affidavit in these proceedings (relied upon);

   -    The mother’s Affidavits in these proceedings (relied upon);

   -    Reasons for Judgment of Acting Magistrate Tynan (10 November 2017);

   -    Comments recorded as being disclosed by the parties to Ms L and Ms N; and

   -    Cross examination of the parties.

3. With so many different sources, it is not surprising that there are variations of versions and emphasis.  The context and position of the recorder (e.g. Police, treating Psychologist; family report writers) can of themselves create opportunities for various recorded views.

4. However, doing the best I can, on the balance of probabilities, I make the following findings:

   a)The father says that the mother had been sick with a sore throat leading up to the incident, which the mother denies.  Nothing turns on this dispute;

   b)At around 6.00pm, whilst the children were in the bath, the mother says she asked the father three times to feed the dog.  The dog had a plate of food of similar form as the parents were to eat (rice and chicken).  The father says he was not repeatedly asked.  The mother says she said “can you feed the fucken dog”;

   c)The mother says, I infer in a slightly aggressive way, she put the bowl of dog food “into his chin”.  The father says, the mother “smashed a plate of dog food” into his face and that it was “steaming hot” and it went into his face; up his nostrils; in his hair and down the front of his clothes.  This is denied by the mother.  I find that it is likely, in the altercation, that the dog food may have made contact with the father’s face but do not accept the mother “smashed” the plate of dog food into his face;

   d)The father reacted and I find did grab her around the neck region and it was likely to be more than placing his arm “up” around her collarbone in some sort of self-defence.  I find his contact with the mother forced her to be pushed backwards two to three metres and I accept the mother’s evidence that they ended up outside.  I accept that the father demanded, at this time from the mother, an “apology”, and that both parents were at least alert to the possibility that this incident (involving yelling as well), might have been heard by neighbours – which caused the contact to cease;

   e)I do not accept that the father “dragged” the mother outside holding on to her throat with two hands or lifted her off the ground.  The limited medical evidence, of some possible bruising to the trachea area, seems less than might have been expected if the mother’s version was accepted;

   f)The father then had a shower and ate his dinner.  He then, provocatively and he says out of a sense of anger and because he was upset, tipped over the bowl of food the wife was yet to eat.  It seems the shower did not ease his mood, but he decided to take an esky and 12 beers and walked to a nearby park to “think about things”;

   g)At around 10.00pm the father returned to the home.  He was drunk.  I find the mother was sitting up in the children’s lounge.  The father demanded to know where the remote was and when the mother said she did not know, the father threw cushions around looking for the remote;

   h)The mother said, and I accept, she then went to X’s bedroom (where he was sleeping) with her mobile phone and got under the covers.  The father eventually followed her.  I accept the father was angry and affected by alcohol.  I accept the mother’s version that the father came into the room with a raised voice, demanded an apology for her earlier actions, to which the mother responded, with words to the effect “you tried to strangle me”, which the father denied;

   i)I do not accept, as the father seeks to portray, that he then was “supporting” the mother leaving X’s bedroom and the mother “dropped to the floor”.  In my view, the mother’s version, considering where she was when the father entered X’s bedroom, is more believable, namely that he removed the bed covers, grabbed her arm and lead her out of the bedroom.  I do not accept she was “asleep” as the father asserts.  The father says, whilst leaving the bedroom he did say, under his breath, words including “I could kill you” and “I could have broken your arm and legs”.  I accept that the father had no intention to do so, but in all the circumstances of the events over the last few hours, it was not unreasonable for the mother to feel, as she says she was, scared;

   j)There were some text message exchanges between the parents (the father having gone to work) which I deal with briefly next, however what is clear is that there is no reliable evidence that the mother (or the father) told anyone about the events of the evening before.  I accept, as the father’s grandfather was seriously ill at the time, they both had other issues in their mind, and in fact the evidence is that the couple on 18 August 2015, went together to the hospital to see the father’s grandfather.  The mother did not seek any medical attention for the injuries she says were likely to have occurred to her throat, until 1 October 2015 (some six weeks later).  The mother went to her chiropractor the day after the incident but the mother says she did not raise any issues about the previous evening’s altercation with that health professional.  The father spent the night of 18 August at his mother’s home as he “needed time to think”;

   k)The father says that after he returned to the home (I infer on 19 August) things were okay between them and although they did discuss the incident, it remained the position that they had different versions of what happened and that neither party wanted to back down;

   l)I accept it is a curious fact that, at this time, the maternal grandmother was present in Australia.  She did not return to New Zealand until around 27 September 2015.  The mother did not advise her mother of the incident (as she says occurred) until 28 September 2015 – after the maternal grandmother had returned to New Zealand and only a few days before the mother and the children were to arrive in New Zealand on the agreed earlier date;

   m)During the course of cross examination and re-examination, more text messages were tendered so as to better understand the message sequence.  I do not attach significant weight to the clearly unwavering positions of their version of events save that the messages on 19 August 2015 to the mother, where the father inter alia says:

   -    “Yes, I was out of line and drinking played a role in my use of foul language”

   -    “I’m sorry for my part in the saga are you”

   -    “I own that”

   -    “It was wrong and I will not behave like that again”

   -    “I’m man enough to say I’m sorry for prolonging the argument and for being a dickhead”

   support, in my view, that the father’s actions, as I have found them to be, were likely to cause fear and hurt to the mother.  The messages (apart from admitting he “grabbed her” but did not “choke her”) do not go to the detail of the incident, as the Queensland Police Service observed.  However, in cross examination, the father attempted to explain the use of the term “I own that” by asserting he said that because he wanted to give the mother the impression he was accepting that then – so that she would join him in the visit that day to the bedside of the father’s ailing grandfather.  I do not accept that explanation.

1. Based on these findings, it is appropriate to record that I have formed the view that the mother embellished and slightly exaggerated some of the features of the incident and that the father sought to significantly minimise his actions – which I regard as a serious act of family violence, partly and mutually provoked by the mother, but thereafter and fuelled by the father’s drinking, causing aggressive and frightening behaviour by the father.

The Q station incident on 6 February 2018

1. The sources of information available to the Court about this incident commenced with an Affidavit by the mother sworn on 21 February 2018 and filed on 22 February 2018, outside the time limits set by the Court for filing of material, but explained by the fact that the incident occurred after the mother had filed her Affidavit of Evidence in Chief on 22 January 2018.  A Police statement by the mother given on 8 February 2018 was also tendered (see Exhibit 6).

2. In circumstances where the father did not object to the evidence, and had prepared Affidavits in response by himself and his mother Ms R sworn on 26 February 2018 (the first day of the trial), those Affidavits were filed by leave and relied upon.

3. Additional sources of information included evidence by Ms S, for the mother (see Exhibit 14).  Ms S was cross examined by telephone.  Further evidence in the form of a compilation of various CCTV footage from various cameras in the Q Station area and a plan of where the mother says she was confronted by the father were marked Exhibits 15 and 16 respectively.  I have considered all these sources of evidence in making the findings which follow about this day:

   a)It is accepted that the video footage from the station over the period from 10.34.19 (when the mother enters the station); after 10.42am (when the father and his mother enter the station), until the last pictures at 10.50.04 do not show the mother and the father in the same frame at the same time.  In the circumstances where the mother says the father approached her and came within four to five metres of her, it might be thought curious if not a little alarming that two people could come that close to each other in one of the busiest train stations in Queensland without any verification by CCTV cameras installed, I infer at least for security purposes;

   b)The father and his mother simply swear and their evidence did not significantly deviate in cross examination that:

   i)after Court finished at 10.00am they went to a nearby coffee shop for about 15 minutes and then went to the station;

   ii)if approximately 30 minutes had expired between Court completing and then entering the Q station, then I find they may have spent slightly longer at the coffee shop;

   iii)they both say they did not see the mother that day after they left the Courtroom either at the station or on the way to the station;

   iv)the father thought the mother had driven to Court; and

   v)the father says the mother’s Affidavit is a “complete fabrication”.

   In my view, on this issue, I regard the evidence of the father and his mother as reliable and reject the submission by Counsel for the mother that the corroboration by the father’s mother should not be accepted.

   c)I note that the statement by the mother to Police; her Affidavit and the Affidavits by the father and his mother Ms R were all give before they had viewed the CCTV footage.  It is reasonable to infer, therefore, that both parties might have anticipated that any footage would corroborate their version;

   d)In the face of the complete denial of the interaction occurring, I regard it as creating an evidentiary onus upon the mother to establish, on the balance of probabilities, that the interaction occurred and that, having occurred, the father made the threats she alleges;

   e)In my view, the mother has failed to discharge that onus for the reasons which follow:

   i)I accept that the mother, on the way to the train station, commenced a telephone conversation on her mobile phone at approximately 10.31am (AEST) - 11.31am (AEDT).  This is confirmed by Ms S, who estimates the total call to be approximately 17 minutes;

   ii)On this basis, and in circumstances where I am satisfied that the father entered the station at 10.42am there was a period of a maximum of six minutes where the father and mother could have come together during that telephone call;

   iii)Ms S said that during the telephone conversation the mother said that the father was “coming towards me”.  She says the mother sounded as if she was “hyperventilating”.  The mother told Ms S, who asked the mother whether she could go to a café or go where there are lots of people, that she “thought she was safe hiding where she was”.  The mother also said to Ms S that the father and his mother “were pointing at her and laughing”.  I am prepared to accept that the mother said these things to Ms S;

   iv)Importantly however Ms S gave evidence that at no time during the telephone conversation did the mother say the father had come close to her (within four to five metres) and particularly that he made a threat to her.  Ms S gives no evidence that she heard any exchange between the father and the mother through the mobile connection;

   v)It was some four hours later that the mother chose to ring Ms S again (at approximately 2.47 AEST – 3.47 AEDT) and told Ms S that she did not remember Ms S asking her to find somewhere safe to go or to find other people and for the first time to Ms S, said the father had threatened her saying “I’m going to get you bitch”;

   vi)The CCTV footage shows the mother continuously in the frame of Camera 4 between 10.42.20 and 10.50, which is really the only time these parties could have approached each other.  The mother is on the phone, it appears, for most of that time and at around 10.47.30 she appears to be dialling on her mobile phone.  For all this period she appears to be adjacent to some small structure – possibly the kiosk she refers to in her evidence.  I would not describe her actions during this period as “crouching” or “hiding”, but it is likely from the plan of the area that the kiosk structure could be a line of sight obstacle between the mother and where the father is shown, at 10.44am in Camera 9 progressing towards the trains.

4. My analysis, on this evidence, draws a conclusion that whilst the mother may have seen the father and his mother at the train station, he did not see her.  I am not satisfied he approached her.  I am not satisfied he came within four to five metres of her.  I am not satisfied that the father therefore made any threat, as claimed by the mother.

Findings on credit generally

1. There are many of the alleged facts in this case that rely upon an acceptance of one version over another.  As these two important events demonstrate, I am cautious in accepting the evidence of either party without some reliable corroboration.

2. I acknowledge that the father, through his Counsel Mr Linklater-Steele, sought a finding that nothing the mother says could be relied upon.  Whilst the Q Station incident does damage her credibility, I did not ignore the other evidence that provides context for some of the mother’s behaviour, arising from the assessment of her psychological functioning.

3. If the suggestion is that the mother completely fabricated the event so as to add to the picture she paints of the father as an aggressive and violent person, then she has failed to achieve that end, but rather ironically by raising the issue and failing to prove it, she has damaged her credibility.

4. As an aside, I am aware that the father had been given a Notice to Appear by Queensland Police in respect of an alleged breach of the Domestic Violence Order occurring on 6 February 2018.  Just as I recognise in the analysis on the evidence by Acting Magistrate Tynan (but am not bound to accept her findings), so is not the Queensland Police Service or any Magistrate bound to accept mine.

Hague proceedings in New Zealand

1. As the history earlier recorded reveals, in January 2016 the father activated the New Zealand Central Authority to commence proceedings in the Family Court at T Town to seek an order pursuant to the Hague Convention that the children X and Y be returned to Australia.  The initial order by the Court for the children to return to Australia was the subject of an unsuccessful Appeal by the mother to the High Court of New Zealand, after which the mother caused the children to return to Australia – nearly 12 months after they left in October 2015.

2. The legal context for Hague Convention proceedings is difference from that context and legislative pathway that shapes the exercise of judicial discretion for parenting order proceedings under the Family Law Act 1975.

3. As a result, although it is clear that the evidence of experts in New Zealand (particularly Ms H and Ms E) was in some part collected for those New Zealand proceedings, this Court must separately and independently assess the evidence of the New Zealand experts within the matrix of the law in Australia to be applied.  For those reasons, I see no particular benefit for the Court to analyse the decisions of either the New Zealand Family Court or High Court having simply noted the result of their determinations was that the children were to return to Australia, and they did.

Evidence of New Zealand experts

1. Having produced evidence from three New Zealand experts for the Hague Convention proceedings, those experts were relied upon by the mother in the proceedings before me and were the subject of cross examination by video link.  In respect of each of these witnesses, none of them had engaged with X (Ms H) or the mother (Ms E and Dr J) since the family left New Zealand in late 2016 – save for some brief telephone calls initiated by the mother.  Nothing akin to a family report, where both parents and the children were interviewed by the same expert, was either sought or required for the Hague Convention proceedings.

2. As the ICL procured a report by independent Psychiatrist Dr M, I will deal with both psychiatric opinions under the one discrete heading below.

Ms H

1. I am satisfied that Clinical Psychologist Ms H was engaged by the mother for a dual role:

   -    to provide therapeutic support for X, who the mother said was demonstrating some concerning behaviour; and

   -    to “better understand” some statements that X was making about his father.

2. Ms H first met X on 31 March 2016 and saw him for eight sessions, with the final session being on 18 May 2016.  Ms H says the mother or one or both of the maternal grandparents would accompany X to the sessions.  Ms H said whilst X did not easily separate from the mother’s family, once he was comfortable the adults left but returned for the last “third to half of the session”.

3. Before this Court is the Affidavit of Ms H sworn 18 January 2018 annexing her report dated 10 October 2016.  Further reports, I infer, relied upon in the Hague proceedings were tendered, being:

   -    report dated 26 June 2016 (Exhibit 8); and

   -    report dated 6 July 2016 (Exhibit 9),

   as well as the therapist’s notes (Exhibit 10).  Arising from the evidence of this witness.  I make the following findings:

   a)The background relied upon by Ms H entirely came from the mother and her family.  The father provided no input unto the “Brief Development History” which is similar in all three reports, in particular paragraph 14 of the October report where it is recited that:

   14.      In the six months prior to October 2015, some increased sexual interest began to occur, indicated by sexualized behaviour and statements.  [X] said he wanted to ‘stay home and suck on boobs’ rather than go out.  He asked his mother ‘do you want to eat my sausage’ referring to his penis.  He would comment on her breasts when she got changed.  He wanted to look at his sister’s genitals and vagina in the bath and she stopped them bathing together.  He got erections in bed and was rubbing himself and ‘humping’.  After their father showed an image of a monkey putting a finger in his anus and sniffing it, [X] did this to himself and to his sister.

   This being the foundation accepted by the Psychologist, her comments about the contact sessions are particularly relevant.

   b)It is also clear that Ms H expanded her report for this Court with six further paragraphs, including comments under the headings of:

   -    Relationship of X with Ms Ninsel, mother; and

   -    Relationship of X with Ms K and Mr K, maternal grandparents.

   Furthermore, some subtle variations in text of the reports is apparent, for example:

   i)in paragraph 19 inclusion of the words “at home” at the end, removed from later reports;

   ii)in paragraph 23, in the final report the earlier quote in the first two reports, when talking about “secrets” that “Dad says not to tell Mum”, is expanded to “Dad says not to tell Mum or I will get a whack”.  This is despite the therapist recording in all reports, at paragraph 24 that “he had told me all the secrets last week.”

   iii)Relying, it seems on the expanded opinions (generated it is to be observed well after the final session occurred on 18 May 2016 and when the Hague proceedings were concluded in New Zealand), a fresh paragraph 31 was included in the last report in the following terms:

   31.      [X] was well supported by his mother and grandparents.  He appeared to have close relationships with each of them.  He sought physical proximity with them when he was anxious or in unfamiliar surroundings.  His mother and grandparents shared considerable insight into [X’s] emotional state and still at responding to him in ways that calmed him.” and

   iv)Paragraph 32 in the final report is expanded by inclusion of the words “or grandparents” at the end.

4. I have formed the view that these changes were not accidental or mere slips, and whilst the therapist was entitled to form her professional opinions, overall the weight I attach to her opinions is damaged by the strong impression I form from the reports and her cross examination that she had become an advocate for the mother and her family.

5. Overall, the Court is asked to apply a sinister motive to the words about keeping “secrets” uttered by the child to the counsellor and Mr G.  It is said on behalf of the mother and her family that the keeping “secrets” is not about treats like chocolate or ice cream but that that there was an attempt to cover up the sexually inappropriate behaviour of the father, by either encouraging the child to keep “secrets” or, perhaps worse, threatening the child with physical harm if he said anything.

6. The comments made to Ms H and made to Mr G are explained, the ICL says, by concluding that the child, in interactions with the father, has “seen something”.  I agree, not surprisingly, that children often see things not intended for them to see.

7. However, on all the evidence and noting that in final submissions Senior Counsel for the mother says she seeks no finding that the father is an unacceptable risk of sexual harm to the children, I do not think it helpful to further analyse the “monkey” video incident; the suggestions by Mr G that the father has an unhealthy interest in young women; the other comments made by the child to the mother about “boobs” or wanting her to “eat” his sausage.  It is to be recorded that in May 2016 the mother told Dr E the father was a “paedophile”.  By the end of the trial, the mother would ask the Court to believe she no longer holds that belief.

8. Whilst there is a degree of infantile silliness reflected in those comments by the child, I do not ignore that:

   a)the father has, at times, made inappropriate remarks towards the mother in the presence of X; and

   b)acknowledges that he has used access to adult sexual videos, on his phone, as a source of titillation and accompanying masturbation;

   and the likelihood that X could have seen “something”.  The boundaries the father has at times set are loose and he must be more conscious of his need to not only protect his children from unintended exposure to adult material, but that comments and behaviour around his children must not suggest a lack of respect for the mother in particular and women in general.  Fathers are usually a highly persuasive role model for their sons (and daughters) and care must be taken to ensure that acceptable values are not disturbed by inappropriate behaviour in their presence.

   Ms E

   Dr E is a highly experienced Clinical Psychologist in private practice in City D, New Zealand who first saw the mother on 8 October 2015 – within one week of the mother having arrived from Australia.  Dr E’s report dated 23 September 2016 (annexed to her Affidavit) was prepared before the mother returned to Australia in October 2016.  The Psychologist confirmed that she has subsequently had telephone conversations with the mother in April, June and September 2017 and two further conversations, with the calls occurring “at times when [Ms Ninsel] was finding the Family Court proceedings very stressful” and “my role was one of support rather than therapy”.  Dr E was the subject of cross examination by video link.

9. I make the following findings in respect of this expert’s evidence:

   a)Dr E confirmed she had “just for information”, a copy of the report of Dr J (Psychiatrist) and the Reasons for Judgment of Acting Magistrate Tynan.  She conducted 11 separate sessions with the mother from 8 October 2015 to 19 January 2016.  She had not read any material filed by the father, as she saw her role as a therapist for the mother, not a family report writer;

   b)Dr E accepted a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) made by Dr J and she herself diagnosed the mother “as suffering from a Major Depressive Disorder, and towards the end of her time in New Zealand, from panic attacks due to her diagnosis of Post-traumatic stress disorder”.  She assessed the mother “was in an abusive relationship”;

   c)I accept that Dr E saw her primary focus as seeking to build the mother’s resilience to cope and when the mother first consulted her the mother presented as if “she had ‘escaped’ from the relationship”.  The mother gave her perspective of the history and said the past two years she had been subjected to extreme behaviour from the father that had made her “afraid” of him; and

   d)Quite properly Counsel for the father, Mr Linklater-Steele, challenged the factual foundation for her assessment of the mother, and although Dr E properly conceded that “you do not necessary believe everything you are told”, she also opined in cross examination that she accepted that was the mother’s view of things and her behaviour was consistent with that.

10. Critically, in this case, at September 2016, Dr E expressed the following opinions in her report:

    8.1      In my opinion [Ms Ninsel’s] prognosis is dependent on the outcome of her return to Australia.  She remains extremely frightened of her husband and his potential to harm her and the children.  She has at present almost no financial support and will have no family or friends in Australia.  The few friends she had had were reportedly partners of her husband’s friends and have not supported her since she left.  She plans to live in a camping ground.  She remains depressed and prone to panic attacks.  She will be facing the uncertainty, stress and retraumatisation of an ongoing Family Court case with the added fears of her husband having contact with the children and the likely deterioration of [X’s] behaviour because of this.

    8.2      [Ms Ninsel’s] prognosis if she were to remain or return to New Zealand is likely to be considerably more positive.  She has family and friends here who support her, her adjustment prior to the invoking of the Hague Convention was trending in a consistently positive way.  She would have the child care assistance to enable her to work and support the children.  She would be living without fear.

    9.1      [Ms Ninsel] has presented as a concerned and a competent parent throughout my sessions with her.  She read in the area of child development while she was pregnant with the children.  She has discussed the ways she handles the children’s disturbed or distressed behaviour and they appear appropriate.  She has set routines and engaged them in educational, social and sporting activities.  She has encouraged their friendships.  She reports that they are currently settled, happy and well behaved.

    9.2      She has however been well supported by her mother and her mother’s partner in this.  It is likely that she will find it more difficult to parent the children when she returns to Australia as she will have no support to do this.  She will also be under much greater pressure herself; she will be contending with problems of finding accommodation, schools, child care, a job and managing a Family Court Case.  She is likely to be fearful still of her husband and of the effects of him having contact with the children.  Additionally [X] is still vulnerable to aggressive and non-compliant behaviour if he is distressed, e.g. most recently when the Lawyer for Child asked him if he wanted to live in Australia or New Zealand.  His behaviour is likely to deteriorate if he has contact with his father, particularly since he has disclosed matters his father reportedly told him not to.  This will make parenting more difficult for [Ms Ninsel].

1. At that time there is reasonable foundation through the therapy to support the opinion expressed by Dr E.

2. It is however, a fact that a serious and lengthy gap in the evidence of Dr E exits, where she has not seen the mother personally for nearly 18 months.  There is no evidence of the mother, after returning to Australia, seeking any continuing support of a similar nature, and whilst the mother claims this arises from a lack of funds to do so, the fact remains that the only other assessments of the mother that assist the Court in assessing whether at trial the mother was still “ill” as the ICL contends or quite capable of functioning well in Australia, as the father contends, are the cross-sectional assessments conducted by experts retained through the Australian Court proceedings.  I deal with that evidence next.

PSYCHIATRIC EXAMINATIONS

1. When Consultant Psychiatrist Dr J, who practices in U Town, New Zealand was approached by the mother she made it clear that she required a report for probably use in the Hague proceedings.  As such, Dr J did not regard his engagement as a purely forensic report and embarked on the clinical interview on 11 January 2016, knowing the mother was seeking a report for the Court proceedings in New Zealand.

2. The report dated 9 February 2016 (in the form of a “file note”) Dr J said met the requirements of his retainer to assess her mental state and not to conduct an investigation as one might do for a forensic report.  Dr J was the subject of cross examination and arising from that exercise and his report I make the following findings:

   a)Dr J saw the mother on two occasions – 11 January 2016 and 4 July2016;

   b)The expert, operating in a clinical mode, took the mother’s version at “face value” and although he had subsequently read the report of Dr M, nothing in that report has caused him to change the opinions he experienced in his report;

   c)Dr J diagnosed the mother with Post Traumatic Stress Disorder and Major Depressive Disorder on 11 January 2016 and determined she was still “suffering” from the symptoms of both of these mental health disorders, when he “re-met” the mother in July 2016.  Apart from the brief telephone conversation with the mother in 2017 (when his recollection is that the mother sought recommendations for support in Australia) he has had no clinical contact with the mother since July 2016 – 18 months prior to the hearing before me.  Sensibly he did not attempt to speculate on the mother’s condition now, save to opine that it is possible to recover from PTSD with appropriate treatment; and

   d)I accept, although the limitations in the assessment are apparent, Dr J’s assessment of the mother at the time he consulted him.  He recommended “specific treatment for PTSD” after a period of use of an anti-depressant and on the basis “that therapy can only sensibly occur when she is feeling confident to do this”.  Sadly, after returning to Australia, the mother did not undertake any therapy, although she was able to avoid, I find, direct contact with her husband.  Dr J opined, at the time, that “talking to [Mr Ninsel] or seeing him is likely to act as a trigger to post traumatic stress symptoms which may be crippling for” the mother.  I accept that opinion was correct at the time.

3. As noted more than once in these Reasons, the mother has since returning to Australia in October 2016, not engaged in therapy and has avoided any direct contact with the father.  Her mother, a trained social worker, has lived with her in Australia and provided her, I accept with daily emotional support.

4. It is within this context that the psychiatric examination by Dr M on 22 June 2017 is to be understood.  Dr M was engaged by the ICL to examine and report on both parents.  He was the subject of cross examination by Counsel for the father.  In respect of each assessment, I make the following findings:

   a)The report of Dr M in respect of the father arose from the consultation on 29 June 2017.  The expert opined that from a DSM-IV perspective, “the father did not present with any constellation of symptomatology sufficient to warrant a major Axis I psychiatric diagnosis.”  The expert took into account that the father was employed full-time and not in receipt of any psychiatric care or medication;

   b)Dr M was aware of the serious allegations of violence and adult sexual abuse made by the mother and opined, in cross examination, that a person’s sexual behaviour can be independent of other behaviour.  Like Dr J, Dr M conceded he is reliant on what people tell him.  It is clear however, that Dr M had much more collateral information (untested as it was) available to him as background;

   c)I accept the diagnosis of the father which concluded with the view that the father needed no treatment as Dr M believed him “to be of sound mind and capable of having an ongoing loving relationship with his children”;

   d)Dr M acknowledged he had read the report on the mother prepared by Dr J, and respected that opinion as that of another professional.  I observe, of course that the interview of the mother by Dr M occurring on 22 June 2017, was over 17 months from the initial consultation by Dr J in New Zealand in January 2016;

   e)In my view, the slight difference in the diagnosis of PTSD between the experts could be explained by the different context.  Certainly Dr M did opine a “differential diagnosis of Post Traumatic Stress Disorder” having formed the opinion that:

   On examination [Ms Ninsel] presented as conscious and aware although was quite tearful during the interview but was able to be brought back to topic.  Her current symptom profile includes some apprehensive anxiety and avoidance of [Mr Ninsel] and preoccupations with the well-being of her children with fluctuations in mood.  It is my opinion that given these current events that she meets the criteria for the diagnosis of Adjustment Disorder with depressed and anxious mood.”

   f)Mr Linkater-Steele, Counsel for the father skilfully cross examined Dr M on two relevant areas namely:

   -    the difference between his differential diagnosis of PTSD compared to that of Dr J for the mother; and

   -    whether the mother’s unexplained (by evidence) change of position in supporting the children now having unsupervised time with the father sat comfortably with his diagnosis and assessment of the mother.

   g)In respect of the first issues, in the ultimate analysis of the evidence, I saw the difference in the assessment of PTSD as immaterial.  Dr M saw the mother at a different time and in a different context to Dr J.  I accept the evidence of Dr M, that not everyone who suffers a trauma develops PTSD and whilst, within the therapeutic process, a patient might have a trauma that can cause earlier events to be “remembered” it is difficult in some cases to find a “cause” for PTSD;

   h)Dr M did express concern however about how the mother could now support the children spending time with the father after indicating a real inability to do so, and where to do so is not avoiding the stimulator exacerbating her condition.  Dr M expressed that it was “a bit alarming” that she has had a change of position in now allowing unsupervised time and this was incongruent with the contrary statements made to him by the mother;

   i)This change of position, in his view, made him “wonder” about the veracity of her earlier statements to him, and where it appears to have come about without any therapeutic intervention he regarded this as “unusual”; and

   j)In re-examination by Senior Counsel for the ICL, Dr M conceded that the mother’s anxiety could improve if she is permitted to relocate.  He also accepted that the mother’s change of position could have been triggered by the observations made by the report writer, Ms N, during the hearing and she may now see that her fears may be managed by “conditions” that protect the children notwithstanding her belief of the risk she feels and expressed to Dr M.

5. The genuineness and, I would suggest, the sustainability of the mother’s change of position about the children spending time with the father is a critical issue in this case.  I return to that issue later in these Reasons, however at this point I acknowledge the father’s concerns and the difficulty in determining whether:

   a)the mother has had a change of position, as a tactical and insincere motive, to persuade the Court that if the children are permitted to relocate to New Zealand, she will be able to support the children having a relationship with the father.  This is the father’s belief; or

   b)the mother has been able to somehow “compartmentalise” the strong negative beliefs she has about the father and which have been maintained since late 2015, from what she now claims to be in the children’s best interests in spending time with the father.  This is the position contended for by Senior Counsel for the mother.

Family reporters’ evidence

1. After the mother commenced proceedings, but before the hearing commenced, two orders for the preparation of a family report were made:

   a)On 24 November 2016 an order was made and interviews were conducted on 6 April 2017 by Family Consultant Ms L, resulting in a report dated 10 May 2017 (Exhibit 30).  In these Reasons I refer to this report as “the first family report”; and

   b)On 14 September 2017 an order was made and interviews were conducted on 13 December 2017 by Family Consultant Ms N, resulting in a report dated 11 January 2018 (Exhibit 28).  In these Reasons I refer to this report as “the second family report”.

2. Before referring to an updated report ordered during the hearing, I record that although the ICL (and in some respects) the father relied upon the first family report, Ms L was not available for cross examination and, as a result, the first family report carries minimal weight – although it is part of the procedural history.  The report writer Ms L does not explain adequately the reasons why she decided not to undertake formal observations of the children with the father.  Although Ms L expressed at paragraph 139 that the experience of the children’s relationship with their father differs, she further acknowledged she was unable to comment on whether the feeling of fear, anxiety and apprehension X expressed when considering time or communication with the father would manifest when interacting with the father as she “decided not to conduct interviews”.  Y is recorded as expressing it would be “good” if she saw or spent time with her father (paragraph 89).

3. It is, in my view, regrettable that Ms L did not conduct a formal observation in April 2017 of the children interacting with the father.  I do not speculate on what might have occurred or how this case might have otherwise progressed, if she had done so.

4. Whilst I accept a trained and experienced professional Family Consultant is often required to make a “call” on the day, it is a reasonable expectation of the Court and the parties that formal observations be undertaken.  If not, cogent reasons for not doing so should be set out in the report.  I feel it would be unfair to Ms L to be overly critical of her, without her having the opportunity of explaining her actions.  I chose not to do so, however it is a further matter of regret, that the second family report undertaken by Ms N again made no observations of the children with the father.  As Ms N was the subject of cross examination, her reasons for doing so are dealt with later in these Reasons.

5. As the history above confirmed, after receipt of submissions, I ordered the children be required to interact with their father, and this interaction is the subject of the brief updated report dated 1 March 2018 by Ms N (Exhibit 29).

6. Although I incorporate some of the evidence of Ms N (both in her report and in the discussion which follows of the relevant primary and additional considerations) I note the strong contention of Mr Linklater-Steele for the father, that the report of Ms N is “worthless” as Ms N had not read Ms L’s report and further the foundation for her views, was an acceptance that the mother had been the subject of domestic violence perpetrated by the father and that the mother’s belief system prevented her from supporting time between the children and their father.  The events post the updated report, as Dr M mused, make the mother’s change of proposal “unusual”.

7. I do not regard Ms N’s report as “worthless” and accept some of her opinions as helpful.  It is however appropriate to record some of the evidence of Ms N shaped by the vigorous cross examination of Counsel for the parties, as follows:

   a)The opinion of Ms N about the children spending time with their father changed after the observations on 1 March 2018.  Simply stated, Ms N’s robust recommendation that “the children spend no time with [Mr Ninsel] now or in the future” in the second family report can be given no weight.  Like all recommendations, they ought be founded on opinions formed from the observations and material;

   b)In this regard, Ms N says she did not rely on Ms L’s first family report, but formed her own conclusions.  Ms N says she wrote her report and then read Ms L’s report out of “curiosity”.  I am prepared to accept that evidence, even though Ms N also did not critically observe the children with the father (as was the case with Ms L) and comes to some similar opinions as those expressed by Ms L;

   c)I agree with Ms N that there is a basis for a concern, from the mother’s past behaviour, about whether she would support the children’s relationship with the father – which she says she now supports.  Ms N was prepared to honestly acknowledge her view has changed and that it is appropriate for time to occur;

   d)Relying on the mother’s recounted history and the Reasons for Judgment of Acting Magistrate Tynan, Ms N began with an understanding that the mother was “vulnerable”.  Her presentation and expressed reluctance of allowing the father to see the children (which the mother said would be “cruel”) caused her not to undertake the observations, as she should have, in my view;

   e)Ms N was immovable in her view that the children should live with the mother and resisted any suggestion that the children living with the father – which she described as “untested” – would be in the children’s best interests;

   f)Ms N opined, and I do agree, that the mother and her mother Ms K are highly negative of the father.  Ms N was more comfortable than Dr M about the mother’s capacity to separate her negative views about the father (described by the mother’ Counsel as “perceived reality”) from the children’s best interests;

   g)Ms N, after the rather positive observations on 1 March 2018, says re-establishing the relationship should occur before the mother is permitted to relocate to New Zealand;

   h)In her ultimate analysis, Ms N said the mother’s parenting is likely to be under less stress if the children live with her in New Zealand; where she will have family support (particularly from her mother and her step father Mr G); will engage with her therapeutic support and it creates some distance from the father.  Under cross examination by Senior Counsel for the mother, Ms N was lead to a position where she accepted the proposition that the children will benefit if the mother can get to a place where she can physically and emotionally build her capacity to cope; and

   i)I accept that the father’s submission is, in essence, that Ms N has fallen into error by accepting the mother’s claims of distress and vulnerability (based on the abusive relationship as she perceived it) and that this is all tactically designed to persuade the expert to support relocation – after which the father’s relationship with the children X and Y, will simply wither to nothing.  Although Ms N is unable to give any guarantees in this respect, after strenuous cross examination, Ms N remained of the view that the children should, on balance, be allowed to relocate to New Zealand in the primary care of their mother.

8. There are some cases where significant, almost determinative weight can be applied to the views and opinions of the report writer.  This is not such a case, however I do not disregard the views expressed by Ms N, but need to consider her evidence together with other evidence offered.

9. I intend to now consider the competing proposals within the matrix of the relevant primary and additional considerations, and rely upon but do not repeat earlier findings.

Primary considerations

1. I find that the children will benefit from having a “meaningful” relationship with both parents.  The history recorded in these Reasons demonstrates that:

   a)a meaningful relationship with the father existed at the time the children left Australia in October 2015;

   b)the absence of time and interaction that followed that departure and lack of engagement after their return damaged that relationship; and

   c)the mother’s position until the middle of the hearing was the father have little or no time with the children and, by inference, saw no benefit in the children re-establishing their relationship with the father.

2. Although the Court has no evidence as to how the “informal” contact arrangements that had begun after final submissions have progressed, I infer some interaction has taken place.  This gives some support to the submissions of Counsel for the mother, that the mother has genuinely changed her position and now sees benefit for the children in having a meaningful relationship with the father – as her final proposal seeks to achieve.  The father submits that his relationship with the children (whatever, I infer, the effect of the recent repair efforts) will be compromised by relocation.  Relocation inevitably means creation of a geographical hurdle.  It matters little to the father, understandably, that the travel between Brisbane and New Zealand is less in time than between Brisbane and Perth.  The relocation, if permitted, would make it impossible for the father to engage in the type of activities at school, in sport or in the community the children live in, which offers bonding opportunities for children and their parents, than if they remained in O Town.

3. However the desire prescribed by the Act to seek to achieve a meaningful relationship, does not mean an optimal relationship, if other factors prevent that from being achieved. It might be argued, that the optimal environment is to have committed caring parents, able to communicate well, compromise as appropriate and with high levels of respect and trust. The Court rarely sees those cases and this is not one of them.

4. I have reached a conclusion that providing for the children to spend regular weekend and holiday time with the father will re-establish their meaningful relationship with him, and then support the lack of frequency which would follow from relocation being permitted.

Risks of abuse, neglect and harm

1. I find that these two delightful children have been exposed to parental conflict between their parents from time to time before leaving Australia in October 2015, mostly in the form of verbal disputes.

2. The allegations of the mother about the “partner violence”; sexually aggressive actions and controlling behaviour as considered by Acting Magistrate Tynan are, I accept, genuinely felt by the mother and those beliefs existed prior to her departure.  The lack of corroborative evidence, in the face of denials by the father, make it difficult for the Court to be satisfied that the allegations of forced sex occurred.

3. I simply do not know.  I would not find that the mother’s presentation in the witness box, where at times she appeared distressed and fragile, is a proper substitute for a full analysis.  However the opinions of Ms E and Dr J support the mother’s perceived fears and distress at that time, which I accept.

1. I adopt the findings already made about the incident on 17 August 2015, but this interaction did not occur in the presence of the children thankfully.

2. I accept that there is a risk that, if permitted to relocate, and where regular contact with the father will cease (save for holidays), the highly negative views of the father held by the mother, Ms K and Mr G could seriously damage any progress made in rebuilding the children’s relationship with the father.

3. In this regard, I assessed Ms K as a possible positive influence.  She clearly has supported her daughter, both financially and emotionally and by remaining in Australia for well over 12 months, she has demonstrated a genuine commitment to the children.  She appropriately conceded that her use of the term “it” (referring to the father), was poor behaviour.  I balance up that early behaviour with her presentation in the witness box and the willingness to support the Court ordered interaction on 1 March and the time that followed.  I find that the maternal grandmother is able to see the children enjoying their time with the father as a positive development.

4. Whilst it was more difficult to assess Mr G by video, I assess him as seeing his role as a “protector” of the mother and the children, particularly X.  It is not clear to me, if he could “quarantine” his negative views about the father as well as his wife Ms K can, in my view, achieve.  However with the assistance of Ms K I think he can remain child focused.

5. These findings about the exposure to risk do not ignore my earlier findings about the father’s loose boundaries around sexual chatter and comments and his need to ensure X and Y do not accidentally view adult entertainment or behaviour of a sexual nature.  I find that the father is more aware now of the need to preserve proper boundaries.  The mother’s final proposals, which sought orders for extended unsupervised time with the father are, I find, a genuine expression of what she now says are in the children’s best interests, rather than a gross deception, as the father contends.

Additional considerations

Views expressed by the children

1. The only observed interaction between the children and the father for nearly two and a half years occurred on 1 March 2018.  In my view, the Court must be cautious in applying weight to what the children were recorded as saying:

   a)to Ms H (in the case of X);

   b)to Ms L; and

   c)to Ms N in her first report,

   as the context to those views, including their age and the highly negative attitudes of the mother and her family to the father, are likely to have shaped their views.  Even so, Y expressed the prospect of spending time with the father as “good” when asked by Ms N in December 2017.

2. Actions for young children often speak louder than words, and the immediate comfort with, and observed monopolisation of, the father demonstrated by Y confirmed her view that time would be “good”.  X was more cautious.  I think it is likely he has a much greater awareness of the conflict and the parental dispute over living in New Zealand and would find it difficult to express a view contrary to that of the mother and her family about living in New Zealand.  The fact that he perceived New Zealand as “home” in the recent circumstances he has endured is not surprising.

3. It is abundantly clear on all the evidence that these children have not, and in my assessment, are unable to contemplate living with anyone other than the mother, who has been her primary carer since October 2015 and before then within the intact relationship of their parents.

Relationships

1. I am satisfied that both X and Y are primarily bonded at this time to their mother.  It is to be recalled that in October 2015, when the mother and children went to New Zealand, X was nearly five years of age and Y only three years of age.  The two and a half years without spending time with the father only caused to ensure the children’s relationship with the mother, and each other, is very solid.  I accept the mother is emotionally attuned to the children, and that they see her as the centre of their lives.  It is apparent from the observations of Ms N on 1 March 2018 that the little girl reacted positively to the father almost immediately, whilst X took some time to warm up.  At paragraph 23, Ms N records her observation that at the conclusion of the visit (and after the children accepted their gifts), the children:

   …warmly hugged their father goodbye, in that they moved closely into him in a relaxed way as he hugged them

2. When the children were reunited with the maternal grandmother (who had brought them to the session) the children “happily told her they had seen their father and paternal grandmother and showed her the gifts they had received.  The maternal grandmother commented that [X] ‘looked happy’”.  The Court accepts that unsupervised time occurred the following weekend for a few hours.  No evidence of any visits after the initial visits has been offered to the Court whist Judgment has been reserved.  No application to re-open has been filed.  As a result the extent to which the father’s relationship has been re-established is difficult to assess.  Certainly by final submissions, the mother sought orders extending time with the father to reach a level of two overnights unsupervised by 31 March 2018.  This was to be maintained until the mother was hoping to leave Australia “on or after 27 April 2018”.  If anything like that proposed by the mother has occurred, it is likely repair to the children’s relationship with their father has begun.

3. The maternal grandmother has been living with the children, firstly in New Zealand and then in Australia since approximately October 2015.  All the evidence points to a very strong relationship between the children and Ms K.  The children, I accept, have also formed a relationship with Mr G and the mother’s extended family in New Zealand.

4. The paternal grandmother Ms R, when observed interacting with the children on 1 March, was clearly excited to see them and the children warmly said hello and goodbye.  A relationship exists between them but the lack of time has most likely strained that connection as well.

The extent to which the parents have taken and fulfilled opportunities and obligations

1. The mother’s position since October 2015 did not realistically allow the father to participate, spend time or communicate with the children.  He was criticised for not taking up the invitation to travel to New Zealand in Christmas 2015 to discuss the future.  In circumstances where I am satisfied he was probably contemplating a Hague Application, I am not overly critical of his actions at that time.  When the mother and children returned, apart from the launch of these hotly contested proceedings, the mother’s domestic violence application was on foot.  The mother was also pressing Police to commence criminal proceedings against the father.  There is no evidence at all that the mother offered any (even supervised) time for the children, and when Ms L’s first family report issued in May 2017, with concerns raised (before a suggested psychiatric report) about the father spending time with the children (see paragraph 147) sadly no orders for any time were made and progression towards an early trial undertaken.

2. I accept the mother has had limited income since returning to Australia to support herself and has relied heavily on the support of her mother.  The mother did not enrol the children in school, saying she could not afford it.  I am critical of the mother failing to put the children in school to not only keep them busy, but to allow them to interact with more children than the mother’s/play group events she attended with them.  Since at least January 2017, the nett proceeds of sale of the family home have been held in trust.  Both parties have been legally represented.  No application to access these funds to assist the children were made.  It seems open to find, and I do, that the parents were so entrenched in the litigation and playing “hard ball” that the obvious access to available funds was not pursued.  I have already observed that no proceedings to seek to resolve property issues have been commenced.  The reasons given for not doing so make no logical sense.

3. I deal with s.60CC(3) and (d), being the likely effect of any changes in the children’s circumstances, when I discuss below the effect of relocation.

Practical difficulty in spending time

1. If the children remain in Australia, and live in O Town (where they now live) access to their father (involving a couple of hours travel) is not too problematic.  If the children are permitted to relocate, then clearly airfares (including for accompanying adults if required) even for every school holiday period are an added burden.  Exhibit 24 is a print out of indicative fares from a Webjet site revealing four different carriers.  On sale flights one way from Brisbane to City D range from $207 to $502, with many options in the mid $200’s.  City D to Brisbane flights are in a similar range.

2. Doing the best I can on this evidence, and allowing say $300 a person each leg the costs of a flight I would estimate to be:

City D to Brisbane
One accompanying adult (return)	$600
One child one way	$300
One child one way	$300
$1,200
Brisbane to City D
One accompanying adult (return)	$600
One child one way	$300
One child one way	$300
$1,200

1. In circumstances where the Court was informed that the parents would agree to a fund of $30,000 for airfares being set aside from the monies in Trust, and with approximately $2,500 for each holiday being expended on airfares, a fund of $30,000 would likely cover at least three years of holiday flights.

2. I accept, of course, the father says no relocation should be permitted in which case these funds would be available to the parties.

Capacity to parent

1. The mother asserts that her capacity to parent these children would be significantly improved if she were able to return with them to New Zealand.  The evidence of Ms E, Dr J and Ms N supports this conclusion.

2. The father, by pointing to what he claims are false and exaggerated allegations of sexual abuse and family violence, contends that effectively the mother is more than capable of parenting effectively in Australia and spending time with the children if, as he proposes, the children live with him.

3. I assess the mother is better able to meet the children’s emotional needs because she is attuned to them and understands them better.  Both could meet their physical needs, although the father has never had to do so as a primary carer, and is untested.

4. The mother, by not seeking work or therapy in Australia, has not demonstrated how she would manage a normal lifestyle in Australia as a sole parent with two school age children.  This has put more pressure on herself, both financially and emotionally, yet there is no expert evidence available (save for Ms N) of recent origin about how she might cope in that situation.  Her greatest supporter, her mother Ms K plans to return to New Zealand.  The mother has created, by her actions, a rather isolated lifestyle.

5. Whilst the “gap” in recent evidence could have been filled by the mother in my view, this does not mean (as the father submits) that the evidence of Dr J and Ms E has no weight – as being too old and in a different context.

6. I am satisfied, as the ICL submits, that the mother’s capacity to parent these children would improve and be more resilient if she were to return to New Zealand.  She would have the support of her family.  The very unhappy end to the parents’ relationship, which time and ever present litigation in two countries has exacerbated, will be difficult to repair to a working relationship on the evidence before me.  Tensions will continue to exist and, I believe, erupt.  It is unlikely the father would cope well with the children being permitted to relocate, and I take this into consideration.  He is however much more resilient than the mother in my assessment.  I accept there is no real likelihood that the father will live in New Zealand although in the relationship with the mother he did go for some time.

Family violence

1. I record that the father has denied that he has perpetrated any family violence against the mother.  The term “family violence” is defined in s.4AB(1) of the Act as:

   …means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful.

2. Examples of behaviour that may constitute family violence are set out in s.4AB(2).  Furthermore, in this case, a Domestic Violence Order applies and is in existence, arising from the judgment and reasons of Acting Magistrate Tynan, after a contested hearing.  The orders were not the subject of appeal.  On the evidence before me, I am not satisfied that the mother has been sexually abused by the father, however physical violence did occur on 17 August 2015 and at that time threats to harm were made.  Further, the father has made, in the past and at times in front of the children, “derogatory taunts”.  Even though the mother now appears to accept that the children are not likely to be exposed to this behaviour in the father’s presence (because the behaviour has been directed to her in the past), these findings are a basis for accepting that the mother does genuinely have a fear or least level of discomfort when the parents come together.  I accept that, at least for some time, opportunities for these parents to interact physically should be restricted.

the effect of changes to the children’s circumstances

1. The father says it is in the best interests of the children that X and Y live with him in Australia.  His position did not alter after all the evidence was heard and I have a strong sense that his proposal is shaped significantly by the hurt he has felt because he feels:

   a)the mother has made false allegations of physical and sexual abuse against him which, despite the findings and orders of Acting Magistrate Tynan, he continues to deny;

   b)the mother took his children from Australia and she has prevented the children from spending time with him for two and a half years; and

   c)she has encouraged X to make false allegations against him of sexual abuse.

2. These actions and behaviour of the mother, supported at times by Ms K and Mr G, have caused him distress and cost him a lot of money to contest.  As the above reasons explain, he was unable to articulate what time the children should spend with the mother if the children live with him – seemingly reliant upon how she reacts to the change of residence.  This attitude persuades me to the view that the father has not properly considered the effect on the children of such a change of residence, which includes I find:

   a)separation from the primary carer the children have known in that role all their life.  The father, during the relationship, was engaged in work pursuits.  The children are attuned to the mother’s parenting style.  The father is untested in this role, and although I am sure he will do his best, I believe this is an adjustment the children will not make easily;

   b)even though I accept the mother would remain in Australia if the children are not permitted to relocate, the mother wishes to keep her distance from the father and this will affect both the frequency of time and quality of time.  The father says this, of course, is a matter for the mother however my findings of family violence make the mother’s position to maintain some distance, reasonable;

   c)the father will be a satisfied parent happy to have the children in his care and he having control of major decision making, as he seeks.  The children will be spending time with the mother who will feel isolated, unsupported and unhappy remaining in Australia.  I do not find she would emotionally breakdown – as I feel her love for the children would sustain her however she would find it very difficult to mask her sadness;

   d)some of the father’s attitude to sexual chatter (also loose boundaries) require modification and there is no “balance” in his household as a sole parent as existed when the mother was present during the relationship;

   e)the children are less likely to be exposed to the negative comments about the father from the mother and her family if the children live with him; and

   f)the children will have greater opportunities to develop and maintain their relationships with the paternal grandmother and the extended family of the father’s siblings and their children (the children’s cousins).

3. The mother’s proposal for the children to relocate and live with her in New Zealand has, I find, these effects on the children:

   a)The children will maintain the consistent parenting of the mother.  In this regard, apart from the father’s concern that the mother has and will fail to promote his relationship, he makes no significant criticisms of the mother’s parenting style or behaviour.  The psychological evidence, and that of Ms N on this issue of quality of parenting, makes no criticisms;

   b)The mother will be a happier parent and more able to rebuild her resilience, and confidence and more easily return to the workforce in New Zealand.  In this regard I accept the mother would probably find employment in Australia such is the quality of her education, qualifications and work experience.  In New Zealand however she will have family support available around her necessary work commitments;

   c)I have a concern, which I weight into my decision, that the children might find it difficult to maintain their relationship with the father from New Zealand if:

   -    orders for holiday time as I propose to make do so occur; and

   -    telephone/Skype time is interrupted or ceases,

   because of the children not being encouraged to see their relationship with the father as important to them or even worse and despite the mother’s recent concessions, he is a risk to them; and

   d)Whatever orders this Court makes about the children spending time with the father, if they are permitted to relocate, may be difficult to enforce without the father commencing proceedings in New Zealand to do so.  The retention of $30,000 in Australia for airfares is designed to remove one impediment – a financial one – to be overcome, to allow time to continue.  I accept it is not a guarantee, however if the mother’s proposal is genuine, then she will support the regime.

4. I earlier in these Reasons identified a critical issue relating to the mother’s genuineness.  On all the evidence, I have concluded that the mother now genuinely wishes to support the children seeing their father.  I find the gap of no time engaging with the father (two and a half years); coupled with the positive interaction facilitated by Ms N and the understanding the maternal grandmother now brings to the case (which I accept has been absent since returning to Australia), have allowed the mother to reconsider what is best for her children.

Discussion

1. The findings about family violence rebuts the presumption of equal shared parental responsibility.  However I accept the submission of the ICL that it is in the best interests of the children for these parents to have equal shared parental responsibility and to have to consult on major long term decisions.

2. I have formed the conclusion, that it is in the best interests of the children that the children live with the mother and that they be permitted to relocate to New Zealand – however, the relocation should be delayed unless otherwise agreed until 30 September 2018 so as to allow the children and the father a chance to repair the relationship affected by the lack of time for two and a half years.

3. On the orders I propose to make a delay until then, although likely to put some pressure on the mother (and her supportive family), will enable time to occur to provide a foundation for the first return contact event, after relocating, which will be for the first half of the end of year holidays in December 2018 (including Christmas Day).  This will also give the children the last term of the New Zealand school term of 2018 to enter into the New Zealand school system in preparation for their first full school year in 2019.

1. Whilst the mother proposed she be able to relocate by 27 April 2018 and the ICL proposes mid-year, I regard 30 September 2018 more appropriate for the reasons given.  I accept that this further delays X and Y’s commencement of schooling – however the mother had elected, in my view incorrectly, to not have them attend school for the whole of 2017 and for the first half of 2018.  It is not ideal, however the chance to establish a foundation for a continuing relationship with their father outweighs one term of schooling, in my view.

2. Although the parties, through their Counsel, agreed to the establishment of a “travelling fund” of $30,000 no details as to how it should be established was the subject of any submissions.  I propose the following order be made, however I will allow the parties 21 days to file and serve any written submissions on the form of the order for this fund.

3. The proposed order is:

   Travelling fund

   1.That the parents shall sign all such documents as may be necessary to establish a fund (“the travelling fund”) with an initial deposit of $30,000 prior to 30 September 2018 and:

   a.the deposit of $30,000 shall be withdrawn from monies held in Trust on behalf of the parties, being the nett proceeds of the sale of the family home;

   b.unless otherwise agreed in writing, the travelling fund shall be used exclusively to pay the airfares for the children and, as required, an accompanying adult, to facilitate travel from [City D] to Brisbane and return for each school holiday period specified by the parenting orders made on 8 June 2018;

   c.the initial deposit of $30,000 shall be paid into an account in the names of both parents with a bank as agreed, and failing agreement the Commonwealth Bank of Australia; and

   d.both parents shall be required to sign and authorise withdrawals from the travelling fund.

   2.That the process for withdrawal shall be as follows:

   a.Upon agreement being reached as to the departure date and return date for each trip for the children to Australia to spend time with the father, the father shall make arrangements to book and pay for the flights and shall provide the mother with details of the flight and costs;

   b.The parents shall use their best endeavours to obtain the lowest priced fares, utilising where possible advance bookings;

   c.Unless otherwise agreed in writing, the mother (or her nominee) shall accompany the children from City D to Brisbane and the father (or his nominee) shall accompany the children from Brisbane to [City D]; and

   d.Upon the flights being booked, the parties shall sign all documents and otherwise authorise the withdrawal of the funds within seventy two (72) hours, necessary to cover the costs of return airfares of the children and the return airfares for each accompanying person, with same to be immediately paid to the father by way of reimbursement.

   3.That once the funds deposited have been exhausted each party shall pay and be responsible for airfares for the children as follows:

   a.The father shall arrange and pay for airfares from [City D] to Brisbane; and

   b.The mother shall arrange and pay for airfares from Brisbane to [City D].

Form of order

Time before children relocate

1. In the absence of any evidence as to what arrangements have been undertaken since the final submissions on 19 March 2018 and where (as previously noted no application to re-open has been made), making orders for the time to occur before 30 September 2018 are shaped by the following considerations:

   a)The mother’s proposal (in Exhibit 31), which articulated support for:

   -    weekly time (usually on a Thursday) between 9.00am to 5.00pm; and

   -    time each weekend, commencing with one overnight visit, before maintaining a regime where the children spend time with the father each weekend from 9.00am Friday to 5.00pm Sunday,

   is based on the children relocating after 27 April 2018;

   b)The ICL’s proposal (Appendix One to these Reasons), which articulated support for a similar regime to the mother’s except that:

   -    the mother should not be permitted to relocate until 16 July 2018 (which would permit the children to begin school in New Zealand for term three); and

   -    on that basis time occurs every weekend from 9.00am Friday to 5.00pm Sunday and every Thursday from 9.00am to 5.00pm until the proposed eight day block visit commencing 6 July 2018;

   c)The father, who lives in P Town (whilst the mother lives in O Town), works in his business and made no submissions on his time availability – simply because his view was that the children should live with him;

   d)The children, at the time of the hearing, were not at school and there was no evidence to suggest the mother would commence them at school in Australia before relocating to New Zealand;

   e)As relocation has been permitted, the regime, in the Court’s opinion, should be designed to maintain the momentum hopefully created from the reunification between the children and the father, with blocks of time being introduced to prepare them for what will be the first block time with the father in Australia, post relocation, which will be for a period of two weeks (including Christmas Day) at the end of 2018;

   f)In circumstances where the parents live over two hours’ drive away from each other (and where there is no evidence to suggest the father will move temporarily from P Town where he operates the business), it is unrealistic to expect the father to travel to O Town as often as the proposed orders of the mother and ICL would require.

2. For these reasons, the regime ordered allows for the father to spend additional mid-week time one day each week but on notice, and otherwise requires blocks of time which allows the father to have sufficient time to return from changeovers in O Town to P Town where he lives and the paternal grandmother and some extended family live.  This increases opportunities for interaction with the parental family.

3. Furthermore, as the children are not at school in Australia, there is no need to be restricted to gazetted Queensland school holiday periods, but rather to prepare the children for the less frequent physical time which is to occur, once relocation has occurred.  The Court also takes into consideration that it is in the best interests of Y, who has (at her age) spent less of her life proportionally with the father, to have the chance to spend her sixth birthday with the father.

Post relocation holiday time

1. The mother and ICL both proposed that the children spend time with the father over New Zealand school holiday periods from 2019 onwards for:

   a)all of the end of term one school holidays;

   b)the first half of the term two school holidays;

   c)all of the end of term three school holidays; and

   d)half of the end of term four Christmas school holidays.

2. The time the children spend with the father each holiday, although further time if they lived in Australia could be achieved, is still of sufficient frequency and length, in the Court’s view, to maintain an effective and meaningful relationship between the children and the father.

3. Again, the father made no submission in this regard, however I adopt the mother’s proposal, including in addition the opportunity of the father to travel, at his expense, to New Zealand (not from the “travelling fund”) and spend a period from Thursday after school to before school or the mother on one occasion each school term.  I would regard only seven days’ notice as too short (not allowing for what activities the children may have organised weeks in advance) however as the mother raises no objection (and actually agreed with the ICL’s proposal), the Court adopts that notice period.

4. The effect of the order will be that the children will spend the first half of the 2018 Christmas school holidays including Christmas Day with the father, in Australia.

Changeovers

1. Whilst the children remain living in O Town, changeovers unless otherwise agreed, will occur at C Cinema.  I accept that the mother has been able to utilise the services of her mother to attend at changeovers.  The evidence at the hearing was that the maternal grandmother was intending to return to New Zealand shortly after the hearing.

2. I accept that the children should not be exposed to potential conflict between the parents, and so the mother can use a person known to the children.  The father, who may have work commitments, will be able to also nominate an adult to attend at changeovers, including of course his mother.  For the limited time before the mother relocates, I see no need to engage in the services of a place like Stepping Stones and do not want to risk its unavailability.

3. Post relocation, it is appropriate changeovers at commencement occur at Brisbane Airport and at conclusion at City D Airport.

Other issues

1. The mother’s proposal is that the father’s time post relocation would be conditional on the father having “completed a domestic violence program”.  Whilst I regard it as appropriate for the father to undertake such a course, to give him some better insight into the effect of his past behaviour as found by this Court, there is no logic in making it a condition of post relocation time and not time in Australia.

2. I do not propose to include in these parenting orders a need to comply with the law relating to transportation of the children in a car.  The evidence does not satisfy me that either parent would put the children at risk in this way.

3. I see no need to further particularise “sexual activity” in the way the mother and ICL suggest at proposed order 21.  It is to be remembered that other authorities (like schools) may see these Orders.

4. No notations are required, considering the extensive reasons and findings now delivered.

5. Finally, in respect of the form of orders which appear at the commencement of these Reasons, the Court does not make an order for counselling for either X (order 21) or the father (order 22).  In respect of the child X, in circumstances where his counselling with Ms H finished over two years ago, and the mother has seen no need to engage in therapy for him, it is premature to bind the parents to an order for counselling and in any event, with equal shared parental responsibility, the parents, if needed, can arrange it.  In respect of counselling for the father, the Court has ordered that he complete a Domestic Violence Behaviour Change Program and the nature thereafter of any counselling, if at all, is uncertain and not indicated on the evidence at this stage.

6. It may be that both parents would benefit from a therapeutic relationship to enable them to properly process what has happened to their family and themselves since October 2015 –including the intense Court proceedings.  I am content to leave a decision as to what may assist them to their judgement.

7. Otherwise I find that the order which appears at the commencement of these Reasons is in the best interests of X and Y and I so order.

I certify that the preceding one-hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 8 June 2018.

Associate: 

Date:  8 June 2018

APPENDIX ONE

1. That the following Parenting Orders are made in respect of the below named children on a final basis:

   a.X born … 2010; and

   b.Y born … 2012 (the children).

Parental Responsibility

1. In exercising parental responsibility pursuant to s61C of the Family Law Act 1975 the Mother and Father consult with one another in relation to decisions to be made about long­ term issues (as defined in the FLA 1975) in relation to the children by the Our Children Australia communication portal.

2. That the Mother and Father do all things and sign all documents required to enrol the children at B Primary School.

3. That the Mother and Father shall have sole responsibility for making decisions about the day to day care, welfare and development of the children, during the time that the children are in their care.

Passports

1. That the Mother and Father shall sign all documents, give all consents and do all necessary acts and things as may be necessary to enable the children to be issued with an Australian Passport and for that purpose the Father return to the Mother's solicitors within seven (7) days of the date of this order, passport Applications for each child with the relevant sections required to be completed by the Father completed.

2. That the Mother and Father sign all documents, give all consents and do all necessary acts and things as may be necessary to renew an Australian Passport for the children no later than six (6) months prior to the expiry date of the Passports.

3. That the Passports are to be held by the Mother.

Living Arrangements

1. That the children live with the Mother and the Mother be permitted to relocate with the children to New Zealand by 16 July, 2018.

2. That until the Mother relocates with the children to New Zealand the children shall spend time with the Father as follows:

   a.From 9 am to 5 pm on 22 March, 2018;

   b.From 9 am 24 March, 2018 to 5 pm on 25 March, 2018;

   c.From 9 am to 5 pm 29 March, 2018;

   d.From 9 am 31 March, 2018 until 5 pm 2 April, 2018;

   eFrom 9 am to 5 pm 5 April, 2018;

   f.From 9 am 7 April, 2018 until 5 pm 9 April 2018;

   g.From 9 am to 5 pm 11 April, 2018;

   h.From 9 am 13 April, 2018 to 5 pm 15 April, 2018;

   i.From 9 am to 5 pm 18 April, 2018;

   j.From 9 am 20 April, 2018 to 5 pm 22 April, 2018;

   k.From 9 am to 5pm 25 April, 2018;

   l.From 9 am 27 April, 2018 to 5pm 29 April, 2018;

   m.From 9 am top 5 pm 2 May, 2018;

   n.From 9 am 4 May, 2018 to 5 pm 6 May, 2018;

   o.From 9 am 11 May, 2018 to 5 pm 13 May, 2018;

   p.From 9 am to 5 pm 16 May, 2018;

   q.From 9 am 18 May, 2018 to 5 pm 20 May, 2018;

   r.From 9 am to 5 pm 23 May, 2018;

   s.From 9 am 25 May, 2018 to 5 pm 27 May, 2018;

   t.From 9 am to 5 pm 30 May, 2018;

   u.From 9 am 1 June, 2018 to 5 pm 3 June, 2018;

   v.From 9 am to 5 pm 6 June, 2018;

   w.From 9 am 8 June, 2018 to 5 pm 10 June, 2018;

   x.From 9 am to 5 pm 13 June, 2018;

   y.From 9 am 15 June, 2018 until 5 pm 17 June, 2018;

   z.From 9 am to 5 pm 20 June, 2018;

   aa.From 9 am 22 June, 2018 to 5 pm 24 June, 2018;

   bb.From 9 am to 5 pm 27 June, 2018;

   cc.From 9 am 29 June, 2018 to 5 pm 1 July, 2018;

   dd.From 9 am to 5 pm 4 July, 2018; and

   ee.From 9 am 6 July, 2018 until 5 pm 14 July, 2018.

3. That when the mother relocates to New Zealand with the children , the children shall spend time with the Father as follows:

   a.From 2019 onwards for all of the New Zealand end of term 1 school holidays, save that the children be returned to the mother the Friday before school commences;

   b.For the first half of the New Zealand end of term 2 school holidays in 2019 onwards;

   c.From 2018 onwards for all of the New Zealand end of term 3 school holidays , save that the children be returned to the mother the Friday before school commences;

   d.For half of the New Zealand December/January school holidays each year commencing in 2018 with the first half of the holidays and in 2019 with the second half of the holidays and alternating each year thereafter, the effect of which is to ensure the children spend Christmas Day in one year with one parent, and in the other year, with the other parent;

   e.On the giving of seven (7) days' notice in writing to the Mother for one (1) weekend each term from after school on Thursday until before school the following Monday.

4. For determining ‘half’, the school holiday period will commence on the last day of school term and conclude on the Friday before school resumes. To calculate half the Mother and Father will use the number of nights of each school holiday period, divided by two (2), and in the event that there is an uneven number of nights then the Father shall spend the extra night with the children in odd numbered years and the Mother shall spend the extra night with the children in even numbered years.

Changeovers

1. When the changeovers are not at school the Father will return the children to the Mother’s authorised agent at the end of his time either:

   a.At the City D Airport Arrivals Terminal if they are arriving back to New Zealand; or

   b.At the V Centre at 5pm on the day specified.

Communication

1. The parent who does not have care of the children can communicate with the children by telephone or Facetime twice per week between 6.30pm and 7.00pm (by reference to the time where the children are at the time of the call) and the other parent will initiate and facilitate such calls and ensure that the children have privacy during the calls.

Miscellaneous

1. That the Father attend and complete a Domestic Violence Behaviour Change Program and provide a certificate of completion to the Mother's solicitors within 60 days.

2. That the Mother and Father shall:

   a.Keep the other parent informed of the names and addresses of any treating medical or health practitioners who treat the children and hereby authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;

   b.Inform the other parent by text message as soon as reasonably practicable of any urgent medical condition, significant health issue or illness suffered by the children.

Authorities

1. That the parents authorise, by this Order, the school attended by the children to give each parent information about the children' s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

Restraints

1. That both parents respect the privacy of the other parent and not question the children about the personal life of the other parent.

2. That both parents be restrained from:

   a.denigrating the other party to the children, or within their presence or hearing;

   b.Discussing these proceedings with the children or within their presence or hearing;

   c.Discussing any issues or suggestions of abuse with either child, or within their presence or hearing;

   d.Physically disciplining the children;

   e.Consuming alcohol above the legal blood alcohol driving limit while the children are in their care.

3. That both parents shall ensure that when the children are transported in a motor vehicle they comply with all car seat and safety restraint legal requirements as specified either Australia or New Zealand as the case may be.

4. That the Father shall not engage in any sexual activity including the accessing of pornography either electronically or in hard copy in the presence or hearing of the children and shall take all steps to ensure that he masturbates in private when the children are with him.

Counselling

1. That the child X shall undertake counselling to help him promote his relationship with his Father.

2. That the Father undertake therapeutic counselling to help him manage his relationship with his children and to implement these Orders.