Packard and Oakes - [2009] FMCAfam 186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PACKARD & OAKES

[2009] FMCAfam 186

FAMILY LAW – Parenting – siblings aged 4 & 6 presently living one with each parent – one parent in Darwin and the other in Brisbane – whether the siblings should live together and if so with which parent.

Family Law Act 1975, ss.60CC, 61DA

Applicant:

MR PACKARD

Respondent:

MS OAKES

File number:

DNC 142 of 2008

Judgment of:

Terry FM

Hearing dates:

12 & 13 February 2009

Date of last submission:

13 February 2009

Delivered at:

Darwin

Delivered on:

9 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Lloyd

Solicitors for the Applicant:

Mark Flynn & Associates Pty Ltd

Counsel for the Respondent:

Ms Orwin

Solicitors for the Respondent:

Margaret Orwin

Counsel for the Independent Children’s Lawyer:

Ms Terrill

Solicitors for the Independent Children’s Lawyer:

Terrill & Associates

ORDERS

That the children of the marriage [X] born in 2002 and [Y] born in 2004 shall live with the father.
That for the purposes of Order (1) unless otherwise agreed between the parties the mother shall deliver [Y] to the father at the paternal grandmother’s home in Brisbane at a time nominated by the father to the mother by text message. For that purpose the mother shall ensure that she has her mobile telephone charged and switched on in order to receive the text message.
That if the mother fails to deliver [Y] in accordance with Order (2), the father may apply for a recovery order on short notice.
That the father shall have sole responsibility for decisions concerning:
(i)the choice of schools to be attended by the children; and
(ii)the children’s attendance on a psychologist for therapeutic purposes.
That subject to Order (4) and (18) the parents shall have equal shared parental responsibility for the children.
That the father shall:
(i)advise the mother and keep her advised of the name, address and telephone number of the school the children are attending, and the name and address of the children’s psychologist;
(ii)promptly provide to the mother any written reports received from the psychologist.
That the mother may:
(i)contact the children’s school(s) at any time and make arrangements for the school(s) to provide to her copies of the children’s school reports, newsletters and order forms for school photos and any other information the mother requests and the school is willing to provide;
(ii)contact the children’s psychologist to discuss the children’s treatment or progress.
That the children shall spend time with the mother:
(a)for half of the June/July and Christmas Northern Territory school holidays each year, being the second half of the June/July school holidays and the first half of the Christmas school holidays in 2009 and each alternate year thereafter and the first half of the June/July school holidays and the second half of the Christmas school holidays in 2010 and each alternate year thereafter;
(b)for the whole of the Northern Territory September/October school holidays in 2009 and each alternate year thereafter and for the whole of the Northern Territory April school holidays in 2010 and each alternate year thereafter;
(c)for reasonable periods during school terms as agreed between the parents should the mother visit the location where the children are living, provided that the mother informs the father of the address of the place where she will be staying while spending time with the children;
(d)at such additional or alternate times as may be agreed between the parents.
That the father shall pay the cost of the children’s return air travel for the times referred to in Order 8(a) and (unless otherwise agreed between the parents) the mother shall pay the cost of the children’s return air travel for the times referred to in Order 8(b).
That the children shall have telephone communication with the mother:
(a)on Wednesday and Sunday each week between 7.00pm – 7.30pm (Darwin time) with the mother to place the calls each Wednesday and the father to place the calls each Sunday.
(b)on Christmas Day, Mother’s Day, and each of the children’s birthdays with the mother to place the calls and the father to make the children available to receive the calls.
That the father shall give the children privacy during the telephone calls and shall not record the calls.
That while the children are with the mother pursuant to Order (8)(a) or 8(b) the children shall have telephone communication with the father:
(a)During the visit in July 2009 on the second and each alternate day of the visit at 7.00pm Queensland time;
(b)On all subsequent visits each Sunday between 7.00pm and 7.30pm Queensland time;
with the father to place the calls and the mother to make the children available to receive the calls.
That the mother shall not less than seven days prior to the children spending time with her pursuant to Order 8(a) or 8(b) advise the father in writing (by text message or otherwise) of the address and telephone number of the place where the children will be residing while with the mother.
That the parents shall keep each other informed of their current residential address and landline and mobile telephone number and advise the other of any change to such details within seven days of any change.
That neither parent shall physically discipline the children or allow any other person to do so.
That each parent shall promptly notify the other if the children while in their care are involved in an accident requiring admission to hospital or are diagnosed as suffering from a serious medical condition.
That the mother shall within fourteen days of being requested by the father to do so sign passport applications for the children and return the signed forms to the father.
That if the mother fails to sign and return the passport applications as required by Order (17) the father may apply for Australian passports for the children, and may travel internationally with the children notwithstanding that the consent of the mother has not been obtained.
That if either parent intends to travel interstate or internationally with the children the travelling parent is to provide the non travelling parent with:
(a)fourteen days written notice of his/her intention to travel with the children if such travel is interstate;
(b)twenty one days written notice of his/her intention to travel with the children if such travel is international;
(c)a copy return air ticket;
(d)a travel itinerary;
(e)contact details for the intended destination.
That neither parent shall criticise or speak badly of the other parent, the other parent’s partner or any member of the other parent’s family to or in the presence of the children.
That the mother is restrained and an injunction is granted restraining her from using illegal drugs while the children are in her care.
That the Independent Children’s Lawyer is discharged effective 30 days from the date of these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNC 142 of 2008

MR PACKARD

Applicant

And

MS OAKES

Respondent

REASONS FOR JUDGMENT

The dispute

Mr P and Ms Oakes are unable to agree about where their children [X], 6 and [Y], 4, should live.
The father lives in Darwin, on an Army posting. The mother lives in Brisbane. For more than twelve months, [X] has lived with the father in Darwin and [Y] has lived with the mother in Brisbane.
The father’s case was that the children should be brought up together, and that as he had the better parenting skills, both children should live with him.
The father said that [X] would not cope with a return to the mother’s care, whereas [Y] could cope with a transition to the father’s care.
The mother’s case was that both children should live with her. In the alternative, the mother proposed that the current situation remain in place. She said that the boys had adapted to being separated, that [Y] was closely bonded to her and that it would be contrary to [Y]’s best interests to remove him from his mother and separate him from his older half sibling [Z].

The Evidence

The father relied on the following documents:
i)his application filed on 3 April 2008;
ii)his affidavits filed on 19 September 2008 and 11 February 2009;
iii)the affidavits of his partner Ms H filed on 19 September 2009 and 11 February 2009;
iv)the affidavit of his mother Ms P filed on 11 February 2009;
v)the affidavit of his grandmother Ms H filed on 11 February 2009.
The mother relied on the following documents:
i)her response filed on 13 June 2008;
ii)her affidavits filed on 13 June 2008 and 11 February 2009;
iii)the affidavit of Mr B filed on 13 February 2009.
A psychologist, Mr Stephen Ralph, prepared two Family Reports, one dated 24 September 2008 and the other dated 12 February 2009.
All of the witnesses were cross-examined.

The witnesses

The father and each of his witnesses were calm, quietly spoken and appropriately responsive when cross-examined. There was nothing in their demeanour or presentation in the witness box to suggest that they were hostile to the mother. They all impressed as making every effort to be fair and reasonable.
An example of the father striving to avoid making allegations without proper foundation was the response he gave when questioned about bruising he had observed on [X]. It was the father’s case that [X] and [Y] had made complaints which might have given rise to concern that they had sustained bruising through abuse in the past. However when the father was asked about bruises he observed on [X] in December 2007 he responded “He’s a boy…I’m not going to speculate that the bruises are from that [ie, abuse].”
The only unconvincing evidence given by the father’s family was about a note the paternal great grandmother alleged the mother had written giving permission for the children to spend time with the paternal great grandmother in Victoria. The note was written on a notepad the paternal grandmother obtained from her work and kept next to her phone. It was not signed by the mother and I cannot be absolutely satisfied that the mother was the author of the note. I am not saying that the father’s family deliberately set out to mislead the court, rather that I simply cannot exclude the possibility that their recollection about who wrote the note is wrong. In any event nothing turns on the issue of whether the mother wrote the note.
The mother was a most unsatisfactory witness and I consider her evidence generally unreliable.
The mother was evasive and flippant when answering questions concerning cannabis use. When the father’s counsel asked the mother if she knew what a bong was, the mother replied “What’s that, sir?” When disbelief was expressed at this answer the mother said “I don’t know what that is.”
The father’s evidence was that the children had told him the mother smoked cones. When the mother was asked about “cones” she said “What do you mean – an ice-cream cone? A witch’s hat?”.
The mother’s oral evidence about cannabis use contradicted the evidence in her affidavit. In her 13 June 2008 affidavit the mother responded to the allegation that she “smoked dope” by saying that “I have never smoked it but Mr Packard did during the relationship. The only thing I have ever smoked is a herb called damiana which is legal and which is supposed to help you stop smoking…”[1]
[1] Mother’s affidavit 13 June 2008 paragraph 35
In oral evidence the mother admitted that she had smoked cannabis in the past, but denied that this had occurred recently.
The mother’s evidence about her mental health was contradictory. In her 13 June 2008 affidavit, the mother said that she suffered from bi-polar and that this condition was controlled by medication. In oral evidence however the mother said that she had never been diagnosed with bi-polar, and that she had ceased taking any medication in May 2008.
It was the mother’s case that one reason why it was important that [Y] continue to live with her was so that he would not be separated from his half sibling [Z]. Near the end of her oral evidence however the mother said that [Z] had recently commenced living with his father in Newcastle NSW.
The mother appeared most uncomfortable in the witness box, as did her partner Mr B. Mr B contradicted some of the mother’s evidence.

He said that [Z] was still living with the mother and had only gone to Newcastle while he and the mother were in Darwin for the hearing of the parenting case. He also gave evidence that he and the mother had only the day before discussed the possibility of moving to Darwin, whereas the mother’s evidence was that she and Mr B had discussed this in about August 2008. I also considered Mr B’s evidence to be unreliable.

History

The father and mother are both 29. They commenced a relationship in 2001, married in August 2002 and separated in July 2006. They have two children, [X], born in 2002 and now aged 6, and [Y], born in 2004, and now aged 4.
The mother has a son from a previous relationship, [Z], who is 11. [Z] lived with the father and mother during their relationship.
The mother and father each have parents and extended family in Queensland and Queensland is where they initially lived. Around the time of [Y]’s birth, the father joined the Australian Defence Force. He spent a considerable period of time training at Kapooka and then on

1 September 2005
was posted to Darwin. The mother, [Z], [X] and [Y] joined the father in Darwin after his posting.
In July 2006 the father and mother separated in Darwin.
The period immediately following separation was difficult. In August 2006 the father applied for a domestic violence restraining order against the mother after she broke into his home and assaulted him. The mother was briefly hospitalised in the psychiatric ward at Darwin Hospital after this incident.
Between July 2006 and at least September/October 2006, [X], [Y] and [Z] lived with the father and spent time regularly with the mother. I am a little unclear about the precise arrangements which were in place in the last quarter of 2006. In any event in late 2006, without opposition by the father, the mother moved to Brisbane with [Z], [X] then 4 and [Y] then 2 ½. The father was obliged to do training and exercises to further his Army career and recognised that he could not at that time provide care for the children.
For most of 2007 the children lived with the mother in Brisbane. Largely as a result of his Army commitments, the father spent fairly limited time with the children during this year. Between July 2007 and November 2007 the father was absent from Australia on deployment in Timor.
In the father’s absence the paternal grandmother who lives in Brisbane, kept in touch with the mother. The mother and paternal grandmother had a good relationship. In July 2007, the mother contacted the paternal grandmother to say that she was not coping and needed help with the children. The paternal grandmother took care of [X] and [Y] for two weeks.
At around this time, a notification was made to the Department of Child Safety (DOCS). The mother said that the notification was made by the police. The mother entered into a three month agreement with DOCS concerning the care of the children.
In December 2007 the father flew to Brisbane. The father frankly conceded that he was concerned about the children and that his intention was to try to take both children back to Darwin with him. He said that he discussed this with the mother who responded that he “wasn’t allowed to take [Y] but [could] take [X] if he paid her money.”
The mother and father signed a document recording an agreement that the father could take [X] to Darwin, and that [Y] would remain with the mother.
I do not accept the mother’s evidence that she signed this document only because the paternal grandmother threatened to withhold [Y] from her if she did not sign. I am satisfied that the mother voluntarily agreed to [X] going to Darwin to live with the father.
The father gave the mother $1,000.00 cash at this time. The mother’s evidence that the $1000.00 cash was sitting untouched in an envelope at her father’s home was bizarre and (given the mother’s financial circumstances) frankly unbelievable.
I do not accept the mother’s evidence that what she asked the father to pay was arrears of child support. I accept the father’s evidence that the mother asked him for money because she said that she would miss out on benefits and child support if he took [X].
On 1 January 2008 the father returned to Darwin with [X]. On 3 April 2008 he filed an application seeking orders that both [X] and [Y] live with him. The mother filed a response, seeking orders that both children live with her.

The history of visits and telephone communication in 2008/early 2009

The father spent time with both [X] and [Y] while he was in Brisbane in December 2007. He then returned to Darwin with [X]. In the last fourteen months, [X] and [Y] have been in each other’s company on only two occasions, for about fifteen days in total. Telephone communication between each child and the parent with whom they do not live (and their sibling) has been problematic.
The mother and father could not reach an agreement about [X] visiting the mother in the mid-year school holidays 2008. As a result rather than spending time with his mother [X] flew to Victoria to spend time with his paternal great grandmother.
Finally the parents did reach an agreement, to the effect that [X] would spend eight days with the mother in August 2008. On 9 August [X] flew to Brisbane.
The visit lasted all of three days. I accept the father’s evidence that the mother told him that she could not cope with [X] and that the children were fighting and she couldn’t control them. I do not accept the mother’s evidence that all of the problems with the visit arose because the father and his family kept calling [X] on a mobile telephone.
The father flew to Brisbane to collect [X], and the mother agreed to him bringing [Y] back to Darwin for a visit. [Y] stayed in Darwin for about twelve days.
The father and mother tried but failed, despite assistance from their solicitors, to reach agreement about visits during the Christmas 2008 school holidays. As a result the boys did not see each other at Christmas. [Y] has not seen his father since August 2008 and [X] has seen his mother only once since then, when Mr Ralph arranged for an observation on 12 February 2009 when the mother came to Darwin for the hearing.
The mother did not make an application to spend time with [X] while she was in Darwin for the hearing. She did not bring [Y] to Darwin with her, although the father offered to pay for the flight and although this would have given [Y] the opportunity to spend time with his brother and father, and also would have given Mr Ralph an opportunity to augment the family report by observing [Y] with the mother and

Mr B.
Telephone communication between the boys and the parent with whom they do not live has been either difficult or non-existent for some time. The mother telephoned [X] on Christmas Day and on his birthday but admitted that she had not otherwise attempted to ring [X] since October 2008. The mother said that she stopped calling because she and [X] found the phone calls too distressing.
In regard to [Y], the father’s evidence was that he was allowed to speak to [Y] on Thursday 25 December Day 2008 and for 1 minute on Monday 29 December 2008 (when the mother rang to speak to [X] on his birthday) but that apart from that he had not been permitted to speak to [Y] at all since 19 October 2008. In his affidavit he said that:
“Every Sunday between 19/10/2008 – 11/01/2009, when I have attempted to contact [Y], Ms Oakes has answered the phone and refused to let me speak with [Y]. Ms Oakes has also abused and threatened me. Ms Oakes’ s threats include me never seeing [Y] again, her destroying my Army career and her physically harming myself and my partner Ms H.”[2]
[2] Father’s affidavit filed 11 February 2009

I accept the father’s evidence that the mother has prevented him over a period of several months from having telephone communication with [Y].
The paternal grandmother made an effort to keep in touch with [Y] in Brisbane during 2008 and early 2009. I accept her evidence that the mother has made this difficult and that of late the mother has not permitted the paternal grandmother to either speak to or visit [Y].

The father’s current circumstances

The father lives with Ms H, who is 24 and is a [occupation omitted]. The father and Ms H have been in a relationship since March 2007, and commenced living together in January 2008 when the father brought [X] back to Darwin.
The father lives in [D]. [X] attends [D] Primary School and completed Transition in 2008. The father and Ms H have reserved a pre-school place for [Y] at [D] Pre-School.
The evidence suggests that [X] has done well in the father’s care in Darwin. He has attended school regularly and is making progress at school. He does swimming lessons and plays basketball. He is interested in playing either soccer or Aussie rules. [X] is in good health.
As a member of the Defence Force, the father is posted to Darwin. He will remain in Darwin during 2009. He may then have the option of remaining in Darwin for a further two years, but a posting to Melbourne is also a possibility.
The father’s partner has extended family in Darwin, and another future possibility is that the father may resign from the Army after he has completed his compulsory service in June 2009 and remain in Darwin as a civilian.
If the father and mother lived in the same town, it would be much easier for the children to see each other and the other parent, no matter which parent they lived with primarily. The father moving to Brisbane would be one way to achieve this. The father was questioned about whether he could ask for a posting to the Brisbane area on compassionate grounds. He said that he could, but that a posting on compassionate grounds would be for twelve months only, and that he would then have to accept a posting to some other location. He also said that if he made such an application he would damage his career prospects in the Army, as there were limited positions in the Army for people in his line of work in Brisbane.
The father chose the Army as a career during the marriage. I do not consider that it is unreasonable for him to resist asking for a compassionate posting.
The father said that there was no immediate prospect of him being deployed overseas again, or needing to do training courses away from Darwin. However the father said that should such an eventuality arise, Ms H was both willing and able to care for the boys while he was away. His grandmother Ms H came to Darwin on one occasion in 2008 to lend a hand for a few weeks while the father was on a training course and she is willing to do this again if needed.

The mother’s current circumstances

The mother is engaged in home duties. She has previously worked [in the hospitality industry] and said that if she looked for work it would be in the hospitality industry.
The mother’s current living circumstances are shrouded in some mystery. The mother is in a relationship with Mr B. Her evidence was that she maintained her own home, but spent weekends at the home of Mr B. The mother also said that Mr B spent one or two nights at her home during the week. The mother denied that she had moved any furniture to Mr B’s home, but Mr B said that the mother had moved a bunk bed to his home for use by [Z] and [Y].
I am not convinced that the mother was telling the truth about her current living circumstances, or the extent to which she and Mr B live together.
Mr B is a [labourer] who professed to be well off and said that he intended to retire in eight years when he turned 45. He has a son, who is 14 and who lives with him for at least part of the time.
It was the mother’s case at the start of these proceedings that her son [Z], 11, still lived with her. Toward the end of her oral evidence however the mother said that [Z] was now living in Newcastle. Somewhat confusingly she said that [Z] would return to live with her if [X] and [Y] lived with her.
It is very concerning that the mother did not bring [Y] to Darwin at the time of the hearing. Mr Ralph was deprived of any opportunity to observe the mother and [Y] together. I have only the mother’s word about the state of her relationship with [Y].
I have limited evidence about [Y]’s current circumstances. The mother said that [Y] was enrolled at a child care centre and attended pre-school, but the mother was not a reliable witness. [Y] was in good health when the father saw him in August 2008.
In oral evidence the mother said that she had given consideration to moving back to Darwin and had spoken to her partner Mr B about this possibility. The mother said that she had first spoken to Mr B about this issue in about August 2008, which might suggest that some serious consideration had been given to this option. Mr B however said that the issue had first been raised with him only the day before.
Mr B has a son in Brisbane who spends time with him regularly, and leaving Brisbane would not be a straight forward matter for him. I am not satisfied that the mother or Mr B have given any real thought to the issue of whether a move to Darwin is feasible for them.

[X] and [Y]’s best interests

In determining the appropriate parenting orders for [X] and [Y], I must treat their best interests as the paramount consideration.
Sections 60CC(2) and (3) of the Family Law Act set out the primary and additional considerations to which I must have regard in order to determine [X] and [Y]’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
Each parent accepted that [X] and [Y] would benefit from having a relationship with both of their parents.
The parents live in different states and while this continues the costs of travel and the need for the children to attend school means that the children may see the parent with whom they do not live on only a few occasions each year.
For the children to have the best chance of maintaining a meaningful relationship with their absent parent in these circumstances, the parent with whom they primarily live needs to be able to promote a positive image of the absent parent and to ensure that telephone communication occurs uneventfully.
I am satisfied that the father is capable of promoting a positive image of the mother to the children. He did not demonstrate any hostility to the mother in the witness box and neither did his partner. He ensured that [X] remembered his mother on her birthday, Mother’s Day and at Christmas and he has made every effort to ensure that telephone communication has occurred.
I am not satisfied that the mother is capable of promoting a positive image of the father to the children or of ensuring that telephone communication occurs regularly. The photograph with the pinholes, the threats and abuse directed at the father and his partner by the mother over the last few months and the deliberate refusal by the mother to permit telephone communication between the father and [Y] over a period of several months causes me to have grave concerns about the mother’s willingness and ability to consistently promote a positive image of the father to the children and to promote telephone communication consistently.
I am required by section 60CC(2)(b) to consider whether [X] and [Y] are likely to be at risk of physical and psychological harm from being exposed to abuse neglect or family violence while in the care of either of their parents .
There is no evidence that the children are likely to be exposed to family violence in the care of either of their parents.
There is no evidence that the children are likely to be exposed to abuse or neglect in the care of the father.
An issue in the case was whether the children had been in the past or where likely in the future to be exposed to abuse (as defined in the Family Law Act) in the care of the mother.
The father filed a Notice of Child Abuse on 3 April 2008. The allegations in it are so vague as to be incapable of investigation.
The Queensland Department of Child Safety became involved with the mother and the children in 2007, but I was not provided with any documentary information from that department.
Ms H said that [X] had told her that [Z] pulled [X]’s testicles in the bath and shower. No further detail was provided. This allegation was not included in the Notice of Child Abuse, nor was the issue explored with the mother in cross-examination.
The mother was asked in general terms about [Z] hitting the younger children. She said that [Z] had not hit [Y] “lately” and did not hit [X].
Ms H reported [X] as saying that the mother had kicked him and that he had fallen down a flight of stairs. This allegation was not particularised in the Notice of Child Abuse nor was the mother cross-examined about it.
The father reported [Y] as saying that the mother hit him with her hand, a foot and a black spoon, and also as saying that his mother hit him and yelled at him. Ms H said that [Y] reported that his mother and Mr B “yelled and hit me.”
The specific allegations about the hand, foot and black spoon were not put to the mother in cross-examination and were not particularised in the Notice of Child Abuse. The mother denied that she “hit” the children.
The father said that he observed “decent” bruises on [X]’s back in December 2007. The issue of how these might have been sustained was not explored with the mother in cross-examination. They are capable of innocent explanation. Ms H said that [Y] told her in August 2008 that he had been kept home from pre-school because his teacher “kept asking about his bruises”. This was not explored with the mother in cross-examination.
The father also reported that [X] told him that “Mr B” sat on him for being rough. This was not put to Mr B in cross-examination.
[X] did not disclose any particular abuse to Mr Ralph, although he said that he did not like “getting smacks” at his mother’s place.
On the state of the evidence it is impossible for me to find that the children have been subjected to abuse (as defined in the Family Law Act) or neglect in the mother’s care, or are likely to be exposed to abuse or neglect if in her care in the future. It is impossible for me to find that the children have been subjected to excessive physical discipline while with the mother or that any interaction between [Z], [X] and [Y] has been more than (rough) sibling interaction.
I now turn to the additional considerations in s.60CC(3).
As to the children’s views, Mr Ralph reported that [X] “openly stated that he wanted to stay living in Darwin with [Y] as well.”[3]
[3] Family Report 24 September 2008 paragraph 49
On 12 February 2009 Mr Ralph observed the mother with [X] and reported that
“At one stage of the observation, Ms Oakes queried [X] about when she was likely to see him again. [X] volunteered that he would see her during school holidays. Ms Oakes tentatively sought to explore [X]’s views about whether this would be the only time she would be likely to see him. During this exchange [X] intimated that he wanted to remain in Darwin and see his mother on holidays.”[4]
[4] Family Report 12 February 2009 paragraph 22
I bear in mind that [X] is only six years old, but his preference for living in Darwin has been clearly stated on two separate occasions about five months apart.
The father and Ms H both said that [Y] did not want to go home in August 2008 and had asked his mother if he could stay in Darwin. The father also said that [Y] had asked to come and live in Darwin “approximately 20 times.”
I accept the evidence of the father and Ms H. However[Y] is only four, and I cannot interpret these statements by [Y] as an expression by him of a preference for living with his father rather than his mother in the long term. They could also be consistent with [Y] wanting to visit his father or enjoying his visit in August 2008.
I must consider the nature of [X] and [Y]’s relationship with each of their parents and any other significant persons.
All the witnesses in the case (including the mother) agreed that [X] had a good relationship with his father. The father and Ms H also said that [X] had a strong relationship with Ms H. Mr Ralph’s observations corroborate that evidence, I am satisfied that [X] has a good and strong relationship with both the father and Ms H.
[Y] has seen little of the father in the last twelve months. However I accept the evidence of the father and Ms H that [Y] got along well with the father during the August 2008 visit. Certainly the mother did not suggest that the father’s relationship with [Y] was poor, simply that it was less strong than her own relationship with [Y].
[Y] first met Ms H in December 2007 and he spent time with her during his visit to Darwin in August 2008. I accept the evidence of the father and Ms H that [Y] has related well to Ms H when he spent time with her. Ms H regularly spoke to [Y] on the telephone until communication became difficult in the last quarter of 2008.
Although Ms H has not spent a great deal of time with [Y] she has got along well with [Y] when she has seen him, and there is a solid basis on which [Y] could build a good relationship with Ms H.
The comments made by [X] to Mr Ralph and Mr Ralph’s observations in August 2008 suggest that the boys have a strong sibling bond.
I cannot be satisfied that [X] has a good relationship with his mother. The father said that the mother had favoured [Y] while the parties lived together. In the witness box the mother was passionate in her declaration that [X] had always been closer to his father than to her. The mother was unable to manage [X] during the August 2008 visit. She has deliberately not spoken to him on the telephone for several months. She did not send a birthday or Christmas present to [X] in 2008.
I accept the father’s evidence that when he and the mother were discussing arrangements for the 2008 Christmas school holidays, the mother said “I only want [X] for 1 week, but you can have [Y] for longer if you want.”[5]
[5] Father’s affidavit filed 11 February 2009
On 12 February 2009 when the mother was in Darwin for the hearing it was arranged that Mr Ralph would prepare an updated family report and a meeting was arranged between the mother and [X]. Mr Ralph said of that occasion as follows:
“On meeting his mother [X] was unresponsive and disengaged. He did not greet her or respond to her in any way, but complied when Ms Oakes asked for a cuddle. Ms Oakes was highly emotional and tearful during most of the observation and struggled to engage [X]. She sat on the floor with [X] in her lap and hugged and kissed him. [X] appeared limp and uncomfortable initially but gradually relaxed and responded to his mother. Conversation, however, was difficult and somewhat stilted. Ms Oakes at times appeared overwhelmed by her emotions and sobbed uncontrollably at times. This tended to thwart conversation and engagement with [X].
[[X]] asked on several occasions about whether he could go back to his father who was waiting outside….Eventually it was agreed when [X] persisted with this request that [X] could return to his father…On returning to the waiting area [X] fell into the arms of his step-mother, Ms H, and sobbed.”
Mr Ralph expressed the following opinion:-
“The observations emphasised how much work will be required from all involved to mend and restore [X]’s relationship with his mother.”
As to the relationship between [X] and Mr B, Mr B accompanied the mother to the session with Mr Ralph on 12 February 2009 and [X] recognised Mr B and commented on his hair cut. Nothing of concern about this interaction was noted by Mr Ralph, but Mr Ralph’s focus was on observing [X]’s relationship with his mother.
[X] has spent little time with Mr B in the past. I am unable to make any findings about the nature of the relationship between [X] and

Mr B.
As to the relationship between the mother and [Y], I have only the evidence of the mother and Mr B about its current state and I am cautious about relying on this evidence. The father and Ms H said that [Y] frequently asked to come and live with them, suggesting that [Y]’s bond with the mother might not be as strong as the mother claimed.

I cannot make findings about the nature of [Y]’s relationship with the mother.
Mr B and the mother both claimed that [Y] had a good relationship with Mr B. However the mother and Mr B were not reliable witnesses. The mother did not bring [Y] to Darwin with her, so an opportunity for Mr Ralph to observe the interaction between the mother and [Y] and Mr B and give independent evidence about these relationships, based on his observation, was lost.
It is impossible to get a clear picture of the current state of [X] or [Y]’s relationship with their half brother [Z]. The only evidence I have about this is from the mother and Mr B, and neither were credible witnesses.
I am satisfied that [X] and [Y] have a good and comfortable relationship with their paternal grandmother Ms P and their paternal great grandmother Ms H.
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
I am satisfied that the father has this ability. He has demonstrated it by his actions.
The father did not bring [X] to Darwin to separate him from his mother, but because this was the father’s home and he considered that he could care for [X] better than the mother could. Since [X] has been in Darwin the father has facilitated telephone communication between [X] and the mother, and paid the airfares for the children’s visits in August 2008. He facilitated [X] sending the mother gifts and cards for Mother’s Day, Christmas and her birthday. He displayed no animosity toward the mother when he gave oral evidence in these proceedings.
I am not convinced that the mother has this ability. I am satisfied that the mother has deliberately impeded the father’s telephone communication with [Y] over the last few months.
I accept that the difficulties with telephone communication in the period leading up to the final hearing could partly be due to the tensions arising out of the court proceedings. However the mother is not well disposed toward the father, and I cannot rule out the possibility that even after the court proceedings end she may, if the children or one of them remain in her care, continue to be obstructive and difficult about the children spending time with and communicating with their father.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a)either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom they have been living.
This is an important consideration in these proceedings.
The mother’s proposal that both children live with her would require [X] to return to her care after having lived fourteen months with his father.
[X] has a close relationship with his father and with Ms H, he is doing well in Darwin and he has consistently expressed a wish to remain living with his father.
As Mr Ralph commented, [X]’s relationship with the mother requires work. I am satisfied that it is highly likely that a change which resulted in [X] returning to live with the mother in Brisbane would be a detrimental change for [X].
The father proposed that [Y] move to Darwin to live with him. [Y] has lived primarily with the mother for most of his life. It is reasonable to assume that [Y] would need time to adjust if removed from the mother’s primary care.

Mr Ralph gave the following opinion about the possibility of [Y] making a successful transition to his father’s care:-
“On a general level, and noting the limitations above, and all things being equal, it would appear that there is a greater likelihood of [Y] making a successful transition to the care of the father than [X] successfully making the transition to the care of the mother. The comments provided by the mother as well as each parent’s account of [X]’s last visit to the mother’s home offer some support for this view. Such a transition would also be easier for [Y] to make due to the fact that he has not commenced formal schooling and he is perhaps more adaptable at this younger age. Both parents indicated that there were few problems with [Y] moving between their households in August of this year and that [Y] had readily settled with the father on arriving in Darwin and re-settled with the mother on his return to Brisbane.”
I am satisfied that the father and Ms H can be depended upon to positively promote the mother to [Y], to ensure that telephone communication occurs and (if the court fixes defined times) to ensure that visits with the mother occur.
When [X] first came to Darwin, the father and Ms H took [X] to see a child and family psychologist. I am satisfied that the father and Ms H have the capacity to deal sensitively with any adjustment difficulties that [Y] may face if he moves to Darwin, and to seek professional assistance should it be required.
There is then reason for optimism that [Y] would successfully adapt if he was moved into the primary care of his father.
It was the mother’s case that the children, and in particular [Y], had an important relationship with their older half brother [Z]. It was the mother’s case that one of the reasons [Y] should not move to Darwin was because such a move would separate him from [Z] and this would be detrimental for [Y].
The evidence in the mother’s case about where [Z] was actually living was contradictory. During oral evidence the mother said that [Z] was living in Newcastle.
If [Z] is now living in Newcastle, I do not need to consider the effect of a change which results in [Y] being separated from [Z]. In any event Mr Ralph said that while [Y] (and [X]’s) relationship with their half brother [Z] was important, [Z] was considerably older than both [X] and [Y], and that if the importance of the siblings having the opportunity to grow up together had to be ranked, the benefit to [X] and [Y] growing up together outranked the benefit to [X] or [Y] of growing up with [Z].
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis.
While the mother lives in Brisbane and the father in Darwin, the distance between them and the fact that both children are now of school age means that the children will only be able to see the parent with whom they do not live during school holidays. The ability of the parents to contribute to the cost of airfares may limit how often that can happen.
Once [Y] turns five in July 2009, he will be able to fly unaccompanied as [X] does (and with [X]). This will reduce the cost of travel.
The father would like the costs of travel shared equally, but he offered to pay for two sets of return air travel each year if necessary. I take into account that if the children live with the father he will be the primary (perhaps the only) financial supporter of the children but the father did not suggest that he would be financially stressed if required to pay two sets of return air fares each year.
The mother is on Centrelink benefits. Her evidence was that she had several thousand dollars in cash at her father’s home. In theory she could use this to assist her to pay airfares for the children, but I am sceptical about this evidence.
It is reasonable to suppose that if [Y] came to live with the father the mother may return to work, but this is likely to be fairly low paid work.
If one or both of the children live with the mother and she remains on Centrelink benefits, then the mother’s ability to contribute to airfares will be limited. If both children live with the father however and the mother returns to work, I tend to the view that there is no reason why the mother should not be required to contribute to one set of airfares each year.
I must consider the capacity of each of the parents to meet the needs of the children, including their emotional and intellectual needs.
I am satisfied that the father has the capacity to meet the needs of both children, including their emotional and intellectual needs.
I am unable to be satisfied about the mother’s capacity to meet the needs of the children.
Part of the reason for this is that the mother gave contradictory evidence about her mental health.
There was no evidence that the mother suffered from any diagnosed mental health problems during her relationship with the father. However on 5 August 2006, the mother took [Y] from the former matrimonial home and went to the police station. The mother said that
“The police realised that I was sick and I was sectioned for 24 hours in [C] ward.”[6]
[6] Mother’s affidavit filed 13 June 2008 paragraph 14
[C] Ward is the psychiatric unit at [omitted] Hospital. The mother remained in [C] Ward for about seven days.
In affidavit evidence the mother said about her mental health as follows:[7]
“I do suffer from bi-polar but it is controlled through medication and I have only ever had one episode on 5 August 2006. I take my medication and I am under the treatment of a psychiatrist Dr C. It was he who first put me onto Lithium and told me that the psychiatrist in Darwin had had me on the wrong medication. I now take prozac and epilum and no longer have to take lithium. I have blood test every 12 weeks and I see Dr C every 8 weeks.”
[7] Mother’s affidavit filed 13 June 2008 paragraph 32. See also paragraph 13
In July 2007 the mother asked the paternal grandmother for help with the children, saying that she felt unable to cope. I accept the grandmother’s evidence that the mother talked at this time about committing suicide and taking all her tablets. The paternal grandmother cared for [X] and [Y] for 2 weeks.
At about this time a notification was made to the Department of Children’s Services and the mother said that: “this involvement stemmed from the fact that I had bi-polar and they wanted me to be able to access support groups or have counselling if I needed.”[8]
[8] Mother’s affidavit filed 13 June 2008 paragraph 21
When these proceedings commenced in 2008, the mother accepted that her mental health was an issue. In her Response filed on 11 June 2008, one of the orders she sought was that she “take any medication prescribed for her bi-polar condition, attend on her treating psychiatrist and engage in any treatment recommended by her psychiatrist.”
On 14 September 2008 Mr Ralph interviewed the mother by telephone for the purposes of preparing the Family Report. Mr Ralph reported that:
“[Ms Oakes] acknowledged that she had been diagnosed as having a bi-polar disorder in 2006 but stated that she had complied with all requirements in relation to her medication and that she had remained stable for over two years. She continues to take her medication for this condition and has regular blood tests to monitor her health. She said that her condition was effectively managed and did not impede her ability to care for the children at all.”[9]
[9] Mr Ralph’s report 24 September 2008
The mother’s counsel did not challenge the accuracy of this evidence when cross-examining Mr Ralph.
On 12 February 2009 however in oral evidence, the mother denied that she had ever been diagnosed with bi-polar disorder, and said that she had ceased taking any medication in about May 2008.
The mother did not produce a report from her psychiatrist Dr C or call any medical or psychiatric evidence in her case.
It is impossible for me to make any findings about the state of the mother’s mental health, whether she has ever been diagnosed with a

bi-polar condition and whether she is stable or may suffer relapses. It is impossible for me to make findings about the extent if any to which the mother has mental health issues which impact on her capacity to provide for the needs of the children.
Another issue which I cannot resolve is the extent to which the mother is using cannabis.
The comments of the children which I accept that the father has accurately reported suggest that the mother has used cannabis in the recent past.
I did not believe the mother’s denials about her use of cannabis.
Use of illegal drugs creates a concern for many reasons: it may expose the children to illegal activity, the parent who uses the drugs may not be properly available to the children when using the drugs, and the use of drugs may damage the parent’s health and their overall capacity to parent.
There is no evidence that the mother is using drugs at a damaging level, and no evidence that her mental health issues, whatever they may be, have anything to do with drug use. However, statements by both boys suggest that they have seen the mother using illegal drugs. The mother’s refusal to answer questions about her use of cannabis does create a concern that she has something to hide.
The unresolved issue of the state of the mother’s mental health and the unresolved issue about the extent of her cannabis use mean that I am unable to make findings about the extent to which the mother has the capacity to provide for the children’s needs.
Another matter relevant to the mother’s capacity to provide for the children’s needs is that she showed no insight into the damaging effect of her behaviour in relation to telephone communication over the last few months.
By not telephoning [X] regularly in the last few months, the mother has caused emotional damage to [X].
By refusing to allow the father to speak to [Y] on the telephone over a period of months the mother has caused emotional damage to [Y].
I am not entirely convinced that once the court proceedings are finished, that all the difficulties with telephone communication will fade away and that the mother’s ability to place the children’s needs first, even if she feels angry and resentful toward the father, will improve.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either parent and any other characteristics of the children that the court thinks are relevant.
The most important characteristic of [X] and [Y] is that they are full siblings who are close in age. The opinion of Mr Ralph, an experienced psychologist and report writer, was that the boys “are entitled to grow up together and to enjoy the benefits that come from having a positive, supportive relationship with each other.”[10]
[10] Family Report 24 September 2008 paragraph 43
Mr Ralph was able to observe the boys together in August 2008 and noted a strong sibling bond.
I must consider the attitude of each of the parent’s to the duties and responsibilities of parenthood.
I am satisfied that the father has shown a good attitude to the duties and responsibilities of parenthood.
The mother has shown a poor attitude to the duties and responsibilities of parenthood in withdrawing from communication with [X], and in preventing the father from telephoning [Y].
In using cannabis in the presence of the children the mother has also shown a poor attitude to the duties and responsibilities of parenthood.
I must consider any family violence involving the children or a member of the children’s family.
It was the mother’s case that during the relationship the father was violent to her on a number of occasions. She alleged that the father had subjected her to physical abuse and degradation in the family home and that the father had broken his hand when hitting her in public.
There was no independent evidence to corroborate the mother’s claims. There was no evidence which suggested that the father had a violent disposition, such as evidence that he had been violent in other relationships or had convictions for violent offences.
I am not prepared, in the absence of any corroboration, to accept the mother’s evidence that the father was violent to her during the relationship. I also do not accept the mother’s evidence that in December 2007 the father threatened to kill her boyfriend and [Z]. I also do not accept the mother’s evidence that the father has threatened to get a gun and take her father out.
The father claimed that shortly after separation the mother broke into his house and assaulted him by punching him. The father immediately applied for a domestic violence order.
I found the father to be a generally credible witness and I accept his evidence that the mother assaulted him.
The father also said that in the last three or four months of 2008, the mother frequently made threats to him on the telephone that her partner would sort him out and that she would destroy him. I accept this evidence.
The father complained to the police about these calls. I am sure that the father found the calls by the mother upsetting and intrusive and that he wanted the calls to stop. However the father did not give evidence that he feared that the mother would take steps to carry out her threats or that as a result of the calls he considered that his personal safety was at risk. I am not convinced that threats made during these calls come within the definition of family violence in the Family Law Act.
Since separation there have been several applications for family violence orders. On 15 August 2006 while the parties were living in Darwin, the father applied for an order against the mother. It appears that this application was discontinued at some point.
On 4 December 2007 the mother applied for an apprehended violence order against the father, and was granted a temporary order. The mother alleged that she applied for the order because the father had made threats, but in my view her motivation for applying for this order was that she saw it as a means by which she might prevent the father taking [X] and [Y].
This application was resolved in April 2008 by the father giving an undertaking without admissions.
As a result of the threatening telephone communications, the father applied for a restraining order against the mother under the Domestic & Family Violence Act. The mother was served with the applications and did not attend court. An order was made on 9 January 2009 and is in force until 9 January 2010. The order allows the mother to approach or contact the father in accordance with family law orders.
No family violence orders have ever been made after a contested final hearing.
I must consider whether it is preferable to make the orders which are least likely to lead to further proceedings.
It is impossible to identify the orders which are least likely to lead to further proceedings.
If I make orders that [Y] remains with the mother, or that both [X] and [Y] live with the mother, it is highly likely that the father will bring proceedings again if further events occur which give rise to concern about the mother’s parenting capacity. Given the history of the matter and the unsatisfactory evidence about the mother’s mental health and cannabis use, I certainly could not rule out the possibility of further concerns arising.
If I order that both children live with the father, the mother will struggle to accept this outcome. The risk of further applications by the mother, or contravention proceedings, if this order is made, cannot be ruled out.

Parental responsibility

I am required by s.61DA of the Family Law Act to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or another child who was a member of the children’s family or family violence.
I am not satisfied that the father has ever abused the mother or [Z] or engaged in family violence. I am satisfied however that the mother engaged in family violence in 2006. The presumption therefore does not apply. It is nevertheless still open to me to make an order for equal shared parental responsibility, if that outcome is considered to be in the children’s best interests.
Since separation there have been periods when the parents have got along well enough and have been able to reach agreement, and other periods where they have been in marked conflict.
In 2008 the parents were unable to reach agreement about the issue of international travel for [X] and about [X]’s further attendance on a psychologist. There is a risk that they will be unable to reach agreement on major issues in the future.
If the parents cannot agree about a major issue, then a court application may have to be made. This happened in 2008 over the issue of international travel for [X]. Another possible outcome if agreement cannot be reached is that something simply does not happen, and the children miss out. This happened in 2008 when the mother refused to agree to [X] going back to the psychologist.
Both these outcomes are less than desirable. On the other hand, it is a serious thing to remove from a parent who will continue to be part of a child’s life, the right to a say about major decisions concerning the child. After the end of these proceedings each parent will continue to be a part of [Y] and [X]’s lives.
Removing from one parent the right to have a say about major decisions concerning children can make things easier for the other parent, and perhaps for the child. Such an order can however lead to unforseen results, such as one parent being able to change a child’s name or move to a distant part of Australia without consultation with the other parent.
It may be that once orders are made about where the children should live, that relations between the parents will improve and that if major decisions are needed in the future, the parents will be able to reach agreement. Despite the past history of this matter, both the Independent Children’s Lawyer and Mr Ralph proposed an order for equal shared parental responsibility.
In my view, if the ultimate outcome of the proceedings is that both children live with the mother, an order for equal shared parental responsibility is indicated. If however the outcome is that both children live with the father, an order for equal shared parental responsibility would, in the best interests of the children, need to be subject to the father having the right to decide where the children go to school, and whether [Y] is able to attend on a psychologist for therapeutic treatment and obtain and travel internationally. The mother will be upset and angry about this outcome, and her behaviour over this past year suggests that resentment and anger toward the father sometimes lead to her acting in ways which are not good for the children.

Conclusion

One solution to the problem of the children not seeing each other or being able to spend much time with their absent parent would be for one of the parents to relocate closer to the other.
I am not persuaded that it would be reasonable to require the father to relocate to the Brisbane area.
At the hearing the mother raised the possibility that she might move to Darwin. If the mother does move to Darwin, then any orders I make about [X] and [Y] may need to be varied in the future. However there is no evidence at present that the mother is likely to relocate and I must make a decision about where [X] and [Y] should live based on the reality of the father being in Darwin and the mother being in Brisbane.
I am satisfied that it is in [X]’s best interest that he remains living with the father.
[X] is doing well in his father’s care. The mother has spent little time with [X] in the last fourteen months. The visit which was organised in August 2008 lasted only three days and it ended at the mother’s instigation. In the last few months the mother has withdrawn from engagement with [X], and has rarely telephoned him.

The observation by Mr Ralph on 12 September 2009 strongly suggests that there are real difficulties in the relationship between the mother and [X]. I am of the view that [X] would not cope with a return to his mother’s full time care.
The issue then is whether to leave the situation as it is, with one sibling living with one parent and one with the other, or to order that [Y] as well as [X] live with the father.
[Y] has lived all his life with his mother. I cannot make findings about the quality of their bond, but the father did not challenge the mother’s claim that [Y] was bonded to her. The father indeed said that the mother had always been closer to [Y] than to [X]. It is reasonable to conclude that [Y] would miss his mother and would need some time to adjust if he moved to Darwin and did not see his mother for some months.
I acknowledge this strong point of the mother’s case, but Mr Ralph was of the view that [Y] could adjust to a change to his father’s primary care. [Y] is four years old, and when he has been able to spend time with his father he has enjoyed this time. [Y] has a strong sibling bond with [X], and he would be moving to live with his brother which should help his adjustment.
I am satisfied that the father and Ms H have the capacity to deal sensitively with any adjustment difficulties [Y] may face, and to seek professional help if [Y] needs it.
I also accept that the father understands the importance to the children of maintaining a relationship with their mother. I consider that he can be relied upon to comply with orders about the children communicating with and spending time with their mother.
The advantage to [Y] of moving to live with his father is not only that he will then have the opportunity to grow up with [X]. I also have much more confidence in the father’s parenting abilities. I am confident that the father can offer the children a stable home, regular school attendance, exposure to extra curricular activities and a home environment free of the use of illegal drugs.
I have concerns about the mother’s capacity to parent [Y]. The fact that the police made a notification about the children to the Department of Child Safety while the children where in the mother’s care in 2007, the mother’s failure to clarify the issue of her mental health and the contradictory evidence she gave about it and her obstructiveness when questioned about her use of cannabis, mean that I am left with a feeling of unease about whether the mother is capable of meeting [Y]’s needs if he lives primarily with her.
I have grave misgivings, particularly in view of the mother’s actions in regard to [Y] having telephone communication with the father in late 2008, about the mother’s capacity to ensure that [Y] maintains a relationship with the father if he continues to live with the mother.
I therefore intend to order that [X] and [Y] live with the father.
The order concerning [Y] needs to be carried into effect forthwith, so that [Y] can commence pre-school in the Northern Territory as soon as possible.
The issue of appropriate orders concerning the children spending time with the mother in the future is a difficult one as far as [X] is concerned. In August 2008, [X]’s visit with the mother lasted all of three days. This combined with Mr Ralph’s observation of [X] with his mother makes me hesitant to order that both children spend two weeks with their mother in the mid-year school holidays.
On the other hand the father has family in Brisbane who are ready to step in if the mother cannot cope with the children. Mr Ralph, an experienced psychologist, recommended, despite what he observed between [X] and the mother, that the boys spend half the mid year school holidays with their mother.
Although I do have some residual concerns I intend to follow this recommendation. Something needs to be in place however to enable the situation to be monitored so that [X] can be removed if difficulties arise for him.
In August 2008, the father provided [X] with a mobile telephone. The mother felt that this was intrusive. I do have concerns about a child as young as [X] being obliged to worry about whether a mobile telephone is available and charged and switched on.
The issue is how to achieve a balance, especially during the first visit. The father may well worry about [X] in particular on that first occasion, given what happened in August 2008.
I intend to order that during that first visit the father be permitted to make short telephone calls to the boys every second day. This should mean that the father will quickly become aware if things are not working out for [X]. On subsequent visits telephone calls once a week are to be preferred, so that the boys have the chance to settle into the mother’s care and enjoy their time with her.
I intend to order that the children spend time with the mother during the mid-year and end of year school holidays each year and that the father pay for the return flights. By the second half of the midyear school holidays 2009 [Y] will be five and will be able to fly unaccompanied, which will reduce the cost.
I also intend to order that the mother have time with the boys in the Northern Territory September/October school holidays and April school holidays in alternating years, provided that she pays for the flights.
In regard to telephone communication between the children and their mother, I intend to order that this occur on two occasions each week. I do not intend to make an order allowing the father to monitor the calls. I can understand that the father does not want to see the children distressed and not know the cause. However, neither the Independent Children’s Lawyer nor Mr Ralph supported the order proposed by the father. One can only hope that once orders are made and carried into effect some of the animosity will disappear from this matter and telephone calls will cease to be a source of such difficulty. If this does not happen and there is continuing difficulty with telephone communication then I do hope that the parties will first attend family dispute resolution to discuss any difficulties the children are having before resorting to a court application.
As I intend to order that the children live with their father, I also intend to order that the father have sole responsibility for decisions concerning the children’s attendance on a psychologist for therapeutic purposes and the choice of the children’s school and that he be permitted to obtain passports for the children without the mother’s consent if she fails to sign passport applications.
The father needs to be able to take [Y] to a psychologist if he forms the view that [Y] requires help to adjust to the change of residence. The father also needs to be able to make a decision about the school the children attend. It would not be in the children’s best interests if the father had to resort to the court over the issue of [Y] seeing a psychologist, or over a dispute about choice of school or indeed about the issue of a passport for [Y] so that he as well as [X] can travel overseas with the father.
Otherwise the parents will have equal shared parental responsibility for the children.
Mr Ralph rightly described this as a “particularly sad and difficult case for the court to determine”.
The mother will be distressed and disappointed about the outcome. She has seen [X] go to live with his father and (as far as I can tell) [Z] go to live with his father, and now she faces the prospect of seeing [Y] do so as well. Unless she relocates it is likely that the mother will see [X] and [Y] only during school holidays. However as I said to the parties at the end of the hearing, I must make orders which are in the best interests of children, not the best interests of parents. I consider that it is in the best interests of both [Y] and [X] that they live primarily with their father.
The father said that if an order was made that [Y] live with him, he would go to Brisbane at once to collect [Y]. I intend to make an order that unless otherwise agreed between the parties the mother deliver [Y] to the father at the paternal grandmother’s house at a time nominated by the father to the mother by text message. I also intend to give the father liberty to apply on short notice for a recovery order.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.

I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate: Rachel Hodgson

Date: 9 March 2009