PETERS & MARCH

[2010] FamCA 151

FAMILY COURT OF AUSTRALIA

PETERS & MARCH [2010] FamCA 151

FAMILY LAW - CHILDREN - With whom a child lives - Both parties seek orders for the children to live with them - Separation of siblings - The subject children are half siblings who have been raised together and cohabited as siblings and are currently separated with one living with the mother and the other with the father - Parenthood - The 2006 Part VII amendments did not prescribe a hierarchy of applicant - One of the subject children is not the father’s biological child - Parenting capacity of both parents - Family violence - Family Consultant’s evidence - The investigative approach adopted by the family consultant was flawed -  Orders made for both children to live with the mother and spend time with the father every third weekend during school term and half of school holidays

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(1), (2)(a), (2)(b), 60CC(3), 60CC(4), 60CG, 61B, 61(C), 61DA(2), 61DB, 62B, 65DA(2), 65DAA, Pt VII
Evidence Act 1995 (Cth) s 140

Aldridge v Keaton [2009] FamCAFC 229
D & F [2001] FamCA 382
Goode and Goode (2006) FLC 93-286
Mazorski v Albright (2007) Fam LR 516
Potts and Bims and Ors [2007] FamCA 394
Rice v Miller (1993) FLC 92-415
Re Evelyn (1998) FLC 92-807
Russell & Russell and Anor [2009] FamCA 28

APPLICANT: Mr Peters

RESPONDENT: Ms March

FILE NUMBER: (P)NCC 2215 of 2007

DATE DELIVERED: 16 February 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 18, 19, 20, 21, 22 and 26 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C Boyd

SOLICITOR FOR THE APPLICANT: Family Law Firm

COUNSEL FOR THE RESPONDENT: Mr B Kelly

SOLICITOR FOR THE RESPONDENT: Bridge Street Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All prior parenting orders and injunctions in relation to J born … July 2003 and L born … September 2004 (“the children”) are discharged.

2. Ms March (“the mother”) shall have sole parental responsibility for J born … July 2003.

3. The mother and Mr Peters shall have equal shared parental responsibility for the child L born … September 2004.

4. The children J and L shall live with the mother.

5. That the children shall spend time with Mr Peters as follows:

   (a)during school term from 6.00 pm Friday until 6.00 pm Sunday on the second, fifth and eighth weekend each term;

   (b)for half of the Gazetted NSW school holidays, being the first half in even numbered years and the second half in odd numbered years;

   (c)in lieu of the first weekend of the school term in which Father’s Day falls on the Father’s Day weekend from 6.00 pm Friday until 6.00 pm Sunday;

   (d)at such other times as the mother and Mr Peters agree. 

6. In the event the mother believes that J is genuinely opposed to spending time with Mr Peters the mother shall inform him in advance and may suspend that forthcoming visit provided any suspension will not reduce the amount of time J spends with Mr Peters below two weekends each term and one week of each school holiday.

7. In the event that a period ordered pursuant to Order 5(a) coincides with a long weekend the children’s time with Mr Peters shall be extended to include the public holiday.

8. In addition to the periods of time that the children shall spend with the parties pursuant to the above orders the children shall spend time with them as follows:

   (a)The mother and Mr Peters will be entitled to spend three hours with the children on the children’s birthdays at agreed times and failing agreement, between 12.00 noon and 3.00 pm on days which are not school days and between 4.00 pm and 7.00 pm if the birthday falls on a school day.  For the purpose of this order Mr Peters shall collect and return the children from McDonalds at W on those occasions when the children will spend time with him.  On those occasions when the children will spend time with the mother she will collect the children from Mr Peters and return them to him at a public venue nominated by him.

   (b)In the event Mother’s Day falls on a weekend when the children are due to spend with Mr Peters his time with the children on Mother’s Day is suspended and he will, in lieu, spend time with the children the following weekend in accordance with the provisions of Order 5 above.

   (c)Provided L remains in the vicinity of where he resides with the mother, on occasions when Mr Peters is able to visit L for additional weekends or periods after school.  For the purpose of this order Mr Peters shall collect and return L from McDonalds at W. 

9. Other than where a different venue is provided for in these orders, changeover shall take place at McDonalds Restaurant, M.

10. The mother and Mr Peters are entitled to attend the following children’s activities:

    (a)       Sporting fixtures;

    (b)       Extra curricular activities that allow for parental attendance;

    (c)School functions and events that allow for parental attendance.

11. When the children are in the care of the mother or Mr Peters whichever of them does not have the children may telephone the children each Monday, Thursday and Sunday between 6.30 pm and 7.00 pm implemented by the contacting party telephoning the other on a nominated telephone number.  If the children are unavailable the relevant party is to ensure the children return the telephone call no later than the following day.

12. In the event that either child suffers a serious injury or illness then the party in whose care the child is shall notify the other party as soon as practicable and provide any authority necessary to the treating practitioner to consult with the other party.

13. That the mother and Mr Peters are restrained from making critical or derogatory remarks in relation to the other party in the presence or hearing of the children and ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

14. The mother and Mr Peters shall keep each other advised of their current address and nominated telephone numbers.

15. That the mother is authorised to execute all documents necessary to enable her to obtain an Australian passport for J born … July 2003 in relation to which the Court dispenses with any requirement that the child’s father, who is RN, also authorise that the child’s passport issue.

16. That the mother and Mr Peters sign all documents required to cause an Australian passport to issue for the child L born … September 2004.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2215 of 2007

MR PETERS

Applicant

And

MS MARCH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These are parenting proceedings which concern two children, J and L. J is six and a half and L is five years and five months old.  J lives with Ms March who is both children’s mother.  L lives with Mr Peters who is his, but not J’s father.  J’s father elected not to participate in these proceedings.  One of the few things upon which the parties were agreed was that their decision to split the children in February 2008 was a mistake.  The case proceeded on the basis of their agreement that the children’s best interests required that the children were reunited.  The critical issue was whether the children should primarily live with L’s father or their mother.  On their primary applications whichever outcome was ordered the children would live about 180 kilometres or a three and a half hours drive away from the party with whom they did not primarily reside and spend time with that party each third weekend during school term. 

2. Towards the end of the hearing the range of options were expanded to include an option that if the Court was satisfied that J should reside with her mother that the children would remain separated[1].  Another option was that the children remained separated, but if within about 18 months the mother moved to within 20 kilometres of Mr Peters, the children’s time during school term with the party with whom the child did not reside would occur fortnightly for four nights; which would have the children together during school term eight nights in each fourteen[2].  

   [1] Exhibit ‘GG’

   [2] Exhibit ‘F’ (further orders)

3. In closing addresses the Independent Children’s Lawyer supported Mr Peters’ application that orders are made in his favour for both children to live with him or in the alternative, if the Court was satisfied that J should live with the mother the children should remain separated.  

Background facts

1. Throughout these reasons findings of facts will be determined upon the balance of probabilities. Section 140 Evidence Act 1995 (Cth).

2. Mr Peters was born in 1977.  He is 32 years old. 

3. Ms March (previously known as …) was born in 1984. She is 25 years old.

4. J was born in July 2003.  J’s father is RN.  J was born shortly before Ms March turned 19.  After J was born for a short time the mother and Mr RN lived with his grandmother.

5. By the time J was about four months old her parents were separated.  J remained in her mother’s care and lived together with her maternal grandmother and step-grand father at W. 

6. Ms March (hereafter “the mother”) and Mr Peters (hereafter “the father”) began dating each other when J was about four months old.  At that time the father resided in a regional centre and the mother lived with J at her mother’s home in C.  There was disagreement about when the parties commenced cohabitation.  A variety of dates were suggested which ranged from January 2004 at the earliest to September 2004 at the latest.  The father tendered a lease which was dated 26 March 2004[3] for premises which the parties rented in the Newcastle area.  This was where the mother and the father (who I shall refer to as “the parties”) commenced cohabitation.  While it was feasible that the parties began living together shortly before that date it was clearly the case that the parties began living together no later than the date shown on the lease.

   1 Exhibit ‘I’

7. From the time the parties commenced cohabitation the mother did not have paid employment and she was primarily responsible for J’s care.  The father worked fulltime at a processing plant where he worked five days a week.  His shifts commenced at 1.30 pm and finished at 10.00 pm.  Each second week the father took a rostered day off. 

8. Although she was not asked to by the Court, the family consultant interviewed the mother’s mother.  In her first report the family consultant said the mother’s mother reported the mother placed J in her care for one to two weeks at a time when J was under two years old. The mother agreed her mother occasionally cared for J but denied that it occurred regularly or for periods as long as those reported by the family consultant.  While I understood the mother to concede her mother may have occasionally cared for J generally this happened when her mother stayed with her.  The mother’s mother did not give evidence.  It is noteworthy that the father did not challenge the mother’s evidence on these matters.  In cross–examination by the Independent Children’s Lawyer the father’s mother, who is the paternal grandmother, said when J was between the ages of 8 and 13 months she understood that J visited her maternal grandmother for a number of two week blocks without the mother.  It was her understanding that during this period L may also have done so once.  This proposition was not raised with either party.  If L was with the maternal grandmother she made no mention of this to the family consultant.  It was submitted by the Independent Children’s Lawyer that the Court would conclude that the maternal grandmother’s evidence would not have assisted the mother.  The mother said she had been unaware that she needed to call her mother.  Neither the father nor Independent Children’s Lawyer attempted to call her.  In circumstances where there was no apparent dispute between the parties on this issue the mother’s failure to adduce evidence from her mother did not warrant the inference contended for by the Independent Children’s Lawyer. 

9. On this issue I prefer the evidence given by the mother which was not challenged by the father.  While I am persuaded that when J was between 8 and 13 months old she spent a number of periods during which her maternal grandmother was significantly involved in her care the evidence did not establish that this situation was as recorded by the family consultant or as extensive as the paternal grandmother thought.      

10. L was born in September 2004.  As had been the situation with J, following L’s birth the mother was primarily responsible for his care.  When he was not at work the father helped with the children. 

11. By late 2005 the mother commenced employment at a supermarket.  She worked three nights each week from 8.00 pm to midnight.  Until a couple of months prior to the parties’ November 2006 separation, the father’s 14 year old sister regularly cared for the children at the parties’ home while the mother was at work.  I mention the father’s sister’s age only because one of his and his mother’s criticisms of the mother’s parenting capacity was that on one occasion prior to separation they said the mother arranged for a 14 year old girl to baby sit the children when she went out one Friday evening.  The baby sitter was actually 17 years old and when at the father’s behest his mother collected the children she observed nothing about the children or the situation which would cause concern.  On the evenings when the mother worked, on her way to work she delivered the children to the father’s mother’s home in the Newcastle area. The father collected the children from his mother on his way home from work.  When the children had been at the father’s mother’s home, the father was generally responsible for putting them to bed.  On the rare occasions that the children were still up when the mother returned home at midnight, she put them to bed. 

12. In October 2006 the mother spent five days with the children visiting her mother at W and her sister at D.  The father was invited to attend but declined. 

13. The parties separated on 18 November 2006.  That day, the mother told the father their relationship was over.  She informed him she was taking the children to her mother’s at W for about two weeks during which period she would think about what steps she would take.  Although she was almost certain she would not resume cohabitation with the father she did not tell him.  Although he understood one possibility was that the mother would remain at W he hoped they would reconcile. 

14. About six months prior to separation the father reorganised the parties finances, the effect of which was that he required the mother to deposit her wages earned from the supermarket and her Centerlink Family Tax Benefit into his account.  During this period the mother was given $20 per week for petrol costs with any other funds only released if the father agreed with the proposed expenditure.  The effect of this was that when the parties separated the mother was penniless.  I accept she was unable to afford to rent a separate home in the Newcastle area.  She did not have any close friends in the Newcastle area and did not feel she would have ongoing support from the father’s family.  Subsequent events show that on this matter her instincts were correct.  Even if the mother had been able to afford to rent in Newcastle it is understandable that, aged 22, she decided to return to W to be with her family. The mother kept the father informed of her plans as they unfolded and there was no subterfuge about her departure with the children or their destination.  On the day of her departure the mother spoke with the father’s mother.  By agreement the paternal grandmother spent a few hours with the children before they departed.  The paternal grandmother sought the mother’s assurance that she would in the future be able to see the children which assurance the mother readily gave.  There was no other reason for the paternal grandmother to have sought this assurance other than she knew the parties were likely to separate. The mother and the children then departed for W.

15. Over these few days the parties spoke by telephone during which the father sought to persuade the mother to continue their relationship.

16. On 21 November 2006 the father consulted his solicitor and obtained advice in relation to matters which arose from the breakdown of the parties’ relationship that is, essentially in relation to issues regarding the children.  There would have been no reason for him to do this if he thought the mother was merely planning to have a two weeks break with her mother. 

17. On 27 November 2006 the mother informed the father by telephone that her decision to separate from him was irreversible.  From the outset it was the father’s position that the mother should return the children to live in the Newcastle area and that the children should either live with him or divide their time equally between the parties.  At that stage the mother was unaware the father planned that the children would live with him.  As a first step towards organising the children’s relationships post separation, the parties agreed both children would spend one week with the father from 28 November 2006 until 5 December 2006.  Because the father is not J’s father the mother was not inclined to facilitate extensive contact between them.  However, she was concerned that at his young age L would be distressed if he was separated from her for any length of time and thought this first stay would work best if J accompanied L.  In accordance with the parties’ agreement, the mother delivered the children to the father in the Newcastle area on 28 November 2006.  Whilst the parties had been in discussion concerning this first stay, the father said he had in the back of his mind that he would keep the children.  The effect of his mother’s evidence was that he had taken legal advice and firmly determined to keep the children.  I am satisfied that the father had decided before the children were handed over to him that he would not return them until he was ordered to do so and he lied to the mother when he told her they would be returned on 5 December 2006. When she delivered the children she collected the remainder of her possessions.  As the father and his mother knew at the time, when the mother first departed, she took her and the children’s clothes.    

18. On 4 December 2006 the father finalised his application for parenting orders which was filed by his solicitor on 5 December 2006 in the Federal Magistrates Court.  On an interim and final basis he proposed orders that the parties have equal shared parental responsibility for the children and that the children live with him.  Additionally that the parties have sole responsibility for the children when in their respective care and that the children spend time with their mother “as the Court shall think fit.”  Although the father applied for time to be abridged this application was refused and his application was listed for hearing on 2 February 2007.  Although he was disappointed that the matter would not be heard sooner the father decided that he would not allow the children to return to or see their mother before then.  Had he been able to put this plan into effect it would have meant that these two young children would not have seen their primary carer from 28 November 2006 to 2 February 2007.  The father’s actions warrant adverse comment about his parenting capacity.  I do not know the full extent of the evidence which the father provided in his affidavit in support of an abridgement of time.  However, he did not disclose that he had withheld the children from their primary caregiver.  It is appropriate to observe that on the facts available to me at this hearing that I consider that the application should have been listed urgently.

1. In response to the mother’s telephone requests over the following days for the children’s return the father told her various stories about why he could not return the children as agreed.  Naively she conceded his requests for additional few days so that he could take the children to visit his father in Lismore, which he did.  When the mother offered to collect the children from him he prevaricated and ultimately refused to cooperate.  

2. On 9 December 2006 the father told the mother that he would not return the children until he had received papers from his solicitor to the effect that she could see them.  The father then switched off his telephone so that the mother’s further attempts to contact him failed.   The mother then telephoned the father’s mother’s home.  In response to her inquiry about the children’s whereabouts, the father’s step-father said:  “I’m not allowed to speak to you” and hung up on her.  Later that day the father sent the mother a text message in which he informed her that the children were fine and she should not worry.  She was very worried.

3. On 11 December 2006 accompanied by her step-father the mother drove to the Newcastle area.  They went first to the father’s house but found it was empty.  They then drove to the father’s mother’s home where upon arrival his step-father came outside.  Although the children were there the father’s step-father informed the mother that she was not permitted to see or speak with the children.  He wrongly claimed to have a paper to this effect.  At that stage there were no orders which related to the children.  There was no legal basis upon which the stepfather was entitled to withhold J from her mother.  Even with the father’s instruction to withhold the children the stepfather was not entitled to withhold J.   Although the father denied that he instructed his step-father to withhold the children he agreed that he and his family were jointly determined to keep the children from the mother. The actions taken by the father’s stepfather on this occasion were consistent with the approach which the father had requested that his family adopt. 

4. The mother departed the father’s parents’ home and went to the Police Station.  There she explained the situation to a police officer and sought their assistance to retrieve the children.  The police officer declined and pointed out that this was “a family law dispute”.  The police entry for the mother’s attendance said:  “[mother] informed police that she came to an agreement with [father] that she had custody of the children, [L] and [J] and they would have the children week about.”  I accept the mother’s evidence that the COPS entry above referred to incorrectly record the information she provided.  The mother correctly informed police the parties had agreed that the children would spend one week with the father. 

5. The following day the mother contacted the father and again asked him to return the children.  He refused and told her the children would not be returned until the parties attended mediation.  He was deaf to the mother’s protestation that the children would be fretting and it was in their interests to be returned to her.  As far as the father was concerned it was irrelevant to the children that prior to separation, the mother had been overwhelmingly responsible for their day to day care which role she had performed competently.  He adopted the notion during cross-examination that he in effect held the children hostage from the mother in an attempt to coerce her to concede an equal time, week about living arrangement with the children.  It was the father’s evidence that the children did not ask for their mother and they were not concerned at being separated from her for, in the end, a consecutive 23 day period.  At no stage during this period did the father discuss with the children when they would next see their mother.  It was possible that the children felt unable to discuss their mother with the father.  When their strong primary relationship with the mother is taken into account the most likely scenario is that the children did enquire after their mother but that their enquiries went unanswered.

6. The mother contacted a solicitor and on 15 December 2006 she filed an application for parenting orders at Tamworth Local Court. The father had not informed the mother of his application and she was unaware of it when she commenced proceedings.  Time was abridged and her application was returnable on 21 December 2006.  In summary, the mother sought orders that the children live with her and that L spend time with the father from 10.00 am Saturday to 10.00 am Monday each alternate weekend, specified dates during the forthcoming 2006 Christmas celebration period and thereafter one week of each school holiday period.  She proposed that the father spend time with J at agreed times. 

7. The mother learned that the father had commenced proceedings in the Federal Magistrates Court when his solicitor informed the Local Court on 21 December 2006.  At the magistrate’s behest the parties were invited to discuss the children’s living arrangements which would apply from that date until the matter was before the Federal Magistrates Court on 2 February 2007.  By consent the parties entered into the following orders:

   BY CONSENT IT IS ORDERED:

   That Until Further Order:

   1.That these proceedings be transferred to the Federal Magistrates Court Newcastle.

   2.That the children [J] born on […] July 2003 and [L] born on […] September 2004 live with the Applicant from:

   2.1From 2 pm on Christmas Day, 25 December 2006 to 2 pm on New Years Day, 1 January 2007;

   2.2From 2 pm on Sunday 7^th January 2007 to 2 pm on Sunday 14^th January 2007;

   2.3From 2 pm on 21 January 2007 to 2 pm on 28 January 2007.

   3.That the children live with the Respondent at the following times:

   3.1From 21 December 2006 to 2 pm on Christmas Day, 25 December 2006;

   3.2From 2 pm on New Years Day, 1 January 2007 to 2 pm on 7 January 2007;

   3.3From 2 pm on 14 January 2007 to 2 pm on 21 January 2007;

   3.4From 2 pm on 28 January 2007 until 2 February 2007.

   4.For the purposes of facilitating the arrangements pursuant to Orders 2 and 3 above, the parties shall meet at McDonald’s [M].

   5.Both parties are restrained from relocation from their current address until further order of the Court and for the purposes of this order, the Applicant is residing at [W] and the Respondent is residing [in the Newcastle area].

   6.This is an order to which section 65DA(2) of the Family Law Amendment Act 2000 the particulars marked “A” are included in these orders regarding living arrangements with the children made in the Tamworth Local Court on 21 December 2006.

8. As these orders make clear Orders 2 - 4 dictated the children’s living arrangements until 2 February 2007 and otherwise continued until further order.  I accept the mother’s evidence that although she had major concerns about whether the children could cope with the 21 December 2006 interim orders, she was desperate to see them and concerned about the impact upon the children of their being denied contact with her for the preceding three weeks.  Because it was anticipated there would be an interim hearing in five weeks time, the mother reluctantly agreed to the father’s week about proposal during the interregnum.   

9. Pending the hearing on 2 February 2007 the children’s time was divided between the parties in accordance with the 21 December 2006 interim orders.

10. In January 2007, the father commenced to tape record all conversations he had with the mother by telephone and at contact changeover.  At changeover he held the tape recorder so that she and I infer, also the children, could see it.  He did this because he claimed he had been misquoted in some unspecified manner in an affidavit the mother deposed in December 2006.  After the mother’s solicitor wrote to the father and demanded he stop taping their telephone conversations and discussions at changeover, he adopted another forensic strategy.  The father insisted the parties primarily communicate through SMS text messaging.  It was his intention to retain a record of the SMS messages and use them to his advantage in this hearing.  In other words these were guarded communications generally designed to ensure that to the Court he would look reasonable. Unsolicited he later provided the SMS records to the family consultant.  In spite of his endeavours the SMS communications do not show the father in a routinely good light.  The mother was unaware of his reasons for SMS communication but cooperated.  Her SMS messages were unguarded. 

11. These text messages for the period between 8 March 2007 and 2 October 2009 form part of the father’s case[4].  It was the mother’s contention that she did not believe the father’s exhibit was a complete record of their exchanges.  The first she knew of them was at the hearing.  Their volume and age made it reasonable that she was unable to recall them and only able to concede some at least were possibly or probably from her.  As a reading of the document would show there were numerous instances where the text reads as a conversation but it was apparent parts were missing.  For example, the SMS conversation which occurred on 10 March 2008.  From these messages it was clear that the father had questioned the mother about her having sex with someone called Rob.  This she had not done and her responses were understandably curt.  The most logical reason parts of the conversations were missing was because they had been deleted by the father.  I infer he deleted those which he considered were irrelevant or which may have reflected poorly on him.  Later I will mention when the father obtained a private investigator to follow the mother and how he persuaded one of her friends to access her Facebook site for him.  It was the mother’s and her husband’s view that the father’s actions were variously inappropriate and intimidating.  His actions influenced them in a real way against the notion that they could expect to live reasonably proximate to the father with a reasonable degree of privacy and without, what they perceive to be a fairly high risk, that he would in effect stalk them.

    [4] Exhibit ‘M”

12. In January 2007 the mother contacted J’s paternal grandmother Mrs RN with the idea she might be keen to know her granddaughter. Mrs RN had moved back to W and was pleased by the mother’s approach.  Since then she has regularly spent time with J.  This was the first contact J had had with her paternal relatives which she could remember.  On a couple of occasions in early 2007 J’s father saw her at his mother’s home.

13. The proceedings came before the Federal Magistrates Court on 2 February 2007.  To the mother’s dismay on that day the proceedings were adjourned.  No further orders were made which meant there were no operative orders in relation to the children’s living arrangements.  Nonetheless, the parties continued the week about arrangement until further orders were made on 14 February 2007. 

14. On 14 February 2007, after a defended hearing, a federal magistrate ordered:  “That until further order the children [J] born […] July 2003 and [L] born […] September 2004 live with the parties on a week about basis with the handover to occur at 2.00 pm on Sunday at McDonalds [M], New South Wales.”  As the Local Court orders were preceded by a general order that they operated “Pending Further Order” the injunctions contained in the 21 December 2006 orders were not continued.  The matter was adjourned for further directions.  No date was given for a final hearing.

15. The father was asked whether he disclosed to the presiding federal magistrate that the children, who were then three years and eight months and two and a half years, had, prior to separation, been in their mother’s primary care.  The father was unable to recall having given this information to the Federal Magistrates Court and, I am satisfied he did not.  Indeed it was not until this hearing that he conceded the mother had been the children’s primary carer.  His failure to disclose this evidence earlier warrants strong adverse finding to the effect that he withheld important evidence which went to the core of the children’s welfare.  It is highly likely that the father anticipated that disclosure that he agreed the mother had been the children’s primary carer may have had made it harder for him to persuade the Court that he should have the children or that their time should be equally shared.   Not only did his approach to this issue detract from his credit but it also showed he was prepared to subvert the children’s interests to his own.  In accordance with the orders the children continued to live week about.

16. In March 2007 the mother failed to hand J over to the father.  She had driven the children to M with the intention that both children would go to him.  However, by the time they arrived J was very upset and crying and saying that she did not want to go.  Having consoled the child the mother explained the situation to the father and tried to persuade him that J should stay with her.  When he would not agree the mother delivered L but retained J.  Notwithstanding that the father denied that J was upset I am satisfied that she was.  There was no other reasonable explanation for the mother, who had taken J to changeover to then withhold her.  In relation to the children’s emotional state I consider the mother to be a more reliable witness because, amongst other matters, the father’s actions in keeping the children in the manner he did demonstrated that he was either unaware of the potential impact upon the children or otherwise not sufficiently concerned to pay attention to it. 

17. The father immediately commenced contravention proceedings against the mother in the Federal Magistrates Court.  The mother admitted that she contravened the order and one weeks make up time was ordered.  It was her understanding that she defaulted in her obligations created by the orders because she had failed to force the child to go with the father.  When regard is had to the child being withheld from her mother without any indication when she would next see her it does not come as a surprise that she was subsequently sometimes distressed and unsettled about leaving the mother’s care.  It is my view that the situation warranted a more sensitive approach to the child’s distress than was offered by the father.  The effect of the penalty imposed by the contravention was that J then spent two consecutive weeks away from her mother and brother.  This was the first time the children had been separated.  It was no surprise to read the father’s SMS message that J missed her brother.  Against the background to which I have made reference the father’s approach to this matter demonstrably lacked insight into the children’s emotional needs and reflects quite poorly upon him.  While he was entitled to enforce compliance with the orders I consider his actions demonstrated that he was more concerned with their rigid application than he was with giving an intuitive and appropriate response to the children’s needs.

18. In about April/May 2007 the mother began a relationship with Mr March to whom she is now married. 

19. A few weeks later the mother moved to her uncle’s home.  This is close to W and the same distance to M. Mr March moved to the same town into separate rented premises.

20. The parenting proceedings had been adjourned on a number of occasions until 21 May 2007 when they were transferred to the Family Court.

21. At 2am on Saturday 26 May 2007 the mother was charged with mid range PCA in relation to which her blood alcohol reading was .085[5]. The children were not in the mother’s care.  In the early evening Mr March and one of his work colleagues visited the mother following which the two men left for an evening at the local hotel.  The mother chose not to go and Mr march understood she was staying home and likely to have a few alcoholic drinks.  The mother’s 16 year old cousin was at her home.  The mother informed police she consumed a combination of six mixed drinks.  She was in bed asleep when Mr march and his work colleague returned from the hotel.  She was roused from her sleep and, without thinking, agreed to drive Mr March to his home which was a 30 minute walk or 5 minute drive.  This suggests it was shortly before 2 am that the mother set out with her passengers for Mr March’s home.  On her way back from Mr March’s home, where she had simply delivered her passengers, the mother was stopped by police and breath tested.  The police incident report records that “At the time of the incident a child was in the front passenger seat of the vehicle”.  The mother and Mr March were each questioned about whom the child may have been. The suggestion was that it might have been J.  Both the mother and Mr March were adamant that J was not present that Saturday and that the child was the mother’s cousin.  I accept their evidence.  Because of this event the mother’s driver’s license was suspended for six months. 

    2 Exhibit ‘V’

22. The next day the parties were due to meet at M for changeover.  I infer, because it was not a matter of complaint, that changeover took place without difficulty.  As I understood it, it was the father’s contention that the Court would be concerned the mother had a blood alcohol level of .085 grams at 2am in circumstances where the following day she was required to meet in M for changeover.  As far as legal and safe driving was concerned the evidence did not establish that before the mother would have needed to set out for M her driving ability would have been impaired by her alcohol consumption the evening beforehand.  So that it is clear, there was no suggestion that the mother drove whilst her license was suspended. Thereafter her mother or Mr March drove her to changeover.

23. On 20 August 2007 Ms B, who is the mother’s brother’s son’s grandmother, made a child at risk notification to the Department of Community Services[6]  (DoCS) about L. When Mrs B complained to DoCS her daughter and grandson were briefly in residence at the mother’s home.  Mrs B and her daughter had had a falling out as a consequence of which the daughter had removed herself and her son from Mrs B’s home.  Mrs B informed DoCS she had been contacted by four neighbours concerned about a child they believed was her grandson.  She said the child was out in the wet weather, had a very bad cough and was unprotected from the rain – without shoes and his head was uncovered.  Apparently Mrs B decided that the child whom the neighbours spoke about was not her grandson but L who she said was walking with his aunt A.  Mrs B told DoCS that no one was surprised “As this is how the family treat their children.  As long as they have money for alcohol and chips they don’t seem to care about their children’s welfare”. 

    3 Exhibit ‘W’

24. The mother was unaware there had been a complaint to DoCS by Mrs B about L.  However, she was contacted by a DoCS worker who arranged a home visit.  From the DoCS worker the mother understood there had been a complaint about Mrs B’s grandson.  The DoCS worker attended at a time when Mrs B’s daughter and grandson was present during which the DoCS worker was not interested in L or the mother. Since then, Mrs B’s grandson has been the subject of Children’s Court proceedings in which Mrs B found herself at odds with DoCS.  No action was taken in relation to the mother or L.    It is difficult to know whether the four unnamed neighbours who apparently contacted Mrs B about her son, as they said, or whether she was correct when she deduced they referred to L.  The DoCS record of the home visit was not in evidence.  During the hearing I raised with the Independent Children’s Lawyer and counsel for the father that the lack of report about this home visit on these children’s file supported the mother’s evidence that DoCS attended her home not about J and L but about Mrs B’s grandson on whose file the home visit report was probably located.    The mother was adamant she did not leave the children with her uncle or that she purchased him cartons of beer to mind L.  The evidence contained in DoCS’ file on this topic was not insufficient to establish otherwise nor in relation to this notification was it established that the children were treated in the manner reported by Ms B.

1. The father offered the mother time with L on his birthday, which she declined.  The mother planned to have a party for L on the following weekend when he would be with her.  The father’s offer was an act of generosity on his part.  Given the distances involved the mother’s response is easily understood and when the child’s age is taken into account her actions did not suggest disinterest on her part.

2. The week about living arrangement continued until some time in December 2007, when the mother decided that the children could cope no longer with it.  The catalyst for this change in the children’s living arrangements arose from an incident in which L, who was then three and a half, killed his pet budgerigar.  During a week when L was with his mother L plucked all of the feathers from his pet whilst the bird was alive.  The mother discovered L covered in feathers throwing his now dead bird against the wall.  For some time, it had been her observation of L that he was tired and irritable and she thought not coping with the constant movement between his parents’ homes.  At changeover he was occasionally teary and reluctant to leave his father and there had been a number of occasions when, after being with her for a few days L said he wanted to go home.  The mother interpreted L’s behaviour with his pet budgerigar as a sign of either psychological or emotional disturbance and decided he needed to have his living arrangements altered. 

3. The children were due to be returned to the father in the next day or two.  At changeover, the mother informed the father of what L had done to his budgerigar and explained her opinion that the week about living arrangement was not working for the children.  She invited the father to agree that the children live with her and that L could be with him every second weekend.  The father refused and suggested as an alternative that L could live with him and J with the mother. The mother explained that she did not wish to see the children separated.  The father made it clear he would not agree to vary the orders so that L could live with her and that the only acceptable variation to him was that L lived primarily with him and J with her mother.  At that stage, the mother did not have legal representation and was unaware that she could have brought an application to expedite the proceedings.  Although in hindsight, the mother said her agreement to separate the children was the wrong decision, she believed this was the only way she could give L the benefit of living predominantly in one home.  In the following days the mother discussed the situation with her partner and having determined, correctly in my view, that the father was implacably opposed to her suggestion she agreed that the children would be separated. 

4. The SMS messages which commenced from about 9 December 2007 and throughout December 2007 show that the parties remained in agreement to separate the children on the basis that J would live with the mother and L with his father.  They were also agreed, according to the father that during school term J and L would each spend a weekend each sixth weekend with the other party and half of the school holidays.  The effect of this would be that the children would spend school holidays together and during school term see each other every third weekend.  The mother denied there was an agreement to this effect.  She said she opposed the idea that J would spend time during school term with the father and her agreement that J would visit him during school holidays was subject to J wanting to do so.   The SMS messages dated 24 and 25 January 2008 show that the mother had instructed her solicitors to put a proposal to the father’s solicitors about the children.  This suggests there were still outstanding issues, which I infer, primarily related to the amount of time J would have with the father.  So that it is clear I am satisfied the mother agreed that J would continue to see the father but not as frequently or free of conditions, as he wanted. 

5. The father was informed by his solicitors they had received the mother’s proposal on 25 January 2008.  In the weeks that followed the mother enquired of him on a number of occasions when she could expect his response.  On 21 February 2008 the father informed her that his solicitor was redoing the orders which would shortly be provided to hers.  In response the mother enquired of the father “What are the differences?”  If he responded his response was not recorded on the exhibit. 

6. Although they were still to finalise their agreement the parties implemented their decision to separate the children during the December 2007 school holidays.  The children spent time together in each household during these holidays.  Consequently although they stopped living week about in December 2007 it was from February 2008 that the agreement became effective.

7. In January 2008 the father commenced a relationship with his current partner Ms Y.  By February 2008 Ms Y was expecting a child to the father.

8. After separation the father had continued to work full time at the processing plant.  In about February 2008 he reduced his work days to three each week.

9. After reference in the early March 2008 SMS exchanges about what a suggested changeover calendar might look like there were no further negotiations about the children’s living arrangements until 8 April 2008.  That day the mother wrote, “We spoke to [J] today and we asked her did she want to go stay with you and [L].  She doesn’t want to stay.  So I think the best solution is to bring [L] up here for the weekend.  And then once a month after that you should come up for the weekend.  Then [J] can see you when she wants to.  Also it’s their cousin’s […] birthday and my sister’s this weekend.”  In response the father indicated that he did not consider the mother’s proposal to be in the best interests of the children.  Concerning her contact with L there followed message after message where she in effect pleaded to see L more frequently than one weekend every six weeks during school terms.  The tenor of her messages was “One weekend a month is not much to ask for really is it?” To which the father responded “Would you prefer to go back to the court order, week about with both children”.  She also wrote “Well think of it this way.  How would you like going six weeks without seeing your son?  It’s not a very nice feeling.  I think it should be every four weeks.  I have been more than fair.  I gave you our son.  How about you start being fair to me and the children?”  That the father was willing to again impose an equal time arrangement for these small children, which had so clearly been unsuccessful for them, demonstrated his willingness to put his own needs ahead of theirs.  Had he prioritised the children’s needs he would have agreed that L would have every fourth weekend with his mother and sister irrespective of whether the mother agreed that J would have the same amount of time with him.  Although he later agreed to do so this does not detract from the inappropriateness of his stance at that time.

10. The family consultant was provided by the father with a copy of these SMS messages.  She interpreted the mother’s responses as evidence that she was content to separate the children and to deny J contact with the father.  A better view is that the mother struggled with the decision to separate the children and strove to find a proper balance for the amount of time J should have with the father.  The mother was cross examined with some vigour about the notion that she proposed she would see L every four weeks during school term, which was evidence of her disinterest in him and his relationship with his sister.  What was not revealed was that her proposal for four weeks was a desperate attempt by her to secure the father’s agreement to something more reasonable than his proposition that she see L each six weeks. 

11. The father said that during the period March 2008 – November 2008 notwithstanding the position he took that L would see the mother no more frequently than once each six weeks as was reflected in the text messages, L spent time with her more frequently.  He agreed that not only was his failure to accede the mother’s entreaties that she see L every four weeks not recorded in his messages nor was the type of SMS chatter which preceded many of their changeovers.  The text messages revealed that the father pressed the mother to agree that during school term he would have J each six weeks.  Her position concerning J was reflected by a message she sent on 10 April 2008 where she said “So what do you think about me having [L] once a month for a weekend?  I think it would be in the best interests of the children that you agree.  If you don’t, you are only stopping [L] from seeing his mother and you are also stopping [L] from spending time with his sister.  And as for [J], you can talk to her any time you want on the phone and I’m not going to try stop her from staying with you and [L] when she asks about you. I think six weeks without [L] is too long.”  And the following day “Look [J] is my daughter.  I have no problem with her spending time with you as long as she wants to.  I’m not taking her away from anyone.”  (My emphasis)  Irrespective of whether J spent time with the father each sixth weekend, the mother’s notion that L should have one weekend each fourth week during school term was more appropriate than the father’s suggestion he see her every sixth week.  The sense I have of the father’s responses was that he withheld L in an attempt to pressure the mother to concede the outcome he sought in relation to J. In this respect his approach was similar to when he withheld the children in November 2006; that is once again he subverted the children’s interests in order to achieve his desired outcome.

12. It was difficult to establish how much time the children spent in the other parties care during term time in the February 2008 – November 2008 period.  On this issue both parties gave various accounts.  Doing the best I can with their evidence it appeared likely that between February 2008 and November 2008 J spent time with the father during school holidays and on a few term weekends.  Initially L had about every sixth weekend during term and half school holidays with the mother.  At some stage he visited her each fourth week during term.  The father offered to make L available for the Mother’s Day 2008 weekend.  Subject to being able to borrow a car the mother accepted.  When she was unable to the mother asked the father if changeover could occur at a roadhouse nearer to her.  Because this would involve him in an 800 kilometre round trip the father declined.  In the event L did not spend time with the mother and J on Mothers Day.  This outcome does not warrant unfavourable comment of either party and highlights the difficulties created by distance.   During this period, in relation to J, the father referred to his desire to spend more time with her on a number of occasions.  The mother’s evidence that he did not raise any objection to the reduction of his time with J was wrong and on this topic designed to mislead the Court.

13. The parties were scheduled to attend a Child Dispute Conference at the Court on 14 July 2008.  No one attended.  Ms T, who was the family consultant appointed to this case received a message relayed from the Court’s National Enquiry Centre which was to the effect that the parties had reached an agreement.  She understood that the children would be separated.  Primarily based upon the closeness of the children’s ages the family consultant formed a preliminary opinion that the proposed settlement may not have been consistent with the children’s long term interests and recommended that the case be listed for a “Less Adversarial Trial[7].”   The file was referred to the Docket Registrar who, on 7 August 2008 ordered an Independent Children’s Lawyer for the children and listed the proceedings for a possible undefended hearing on 21 October 2008. 

    [7] Exhibit ‘EE’

14. The father said that he had never proposed that the children would be separated on a final basis.  However, under cross examination he agreed that at changeover on 12 October 2008 he presented the mother with a set of orders prepared by his solicitor on his instructions already signed by him.  The gravamen of the document was that on a final basis J would live with the mother and L with his father.  The father then contacted his solicitor who spoke with the mother at changeover.  The mother refused to sign the document.  Although her reason was not entirely clear it is likely the contentious matter related to the inclusion of orders which would have required the mother to send J to the father during school term.  I am satisfied it was the father’s intention to continue the children’s separation on a final basis.  This was too important a topic for me to accept, that with his propensity for record keeping, the father merely overlooked this matter.  I am satisfied his evidence that he had never proposed the children would be permanently separated was intended to mislead the Court.     

15. On 21 October 2008 the Court made interim orders in accordance with those proposed by the father which orders are set out below:

    IT IS ORDERED

    1.That the proceedings be adjourned to the Registrar’s List at 9:45 am on 26 November 2008.

    IT IS NOTED

    2.That the younger children have been separated and consideration may be given to the priority of the matter moving, if not for a final hearing, then at least for a Family Report.

    IT IS FURTHER ORDERED

    3.Pending further order, orders are made in terms of paragraphs 1, 2, 3, 4, 5 and 6 of the document titled “Minute of Proposed Order” marked Exhibit 1 and attached hereto.

    4.Leave is granted to the mother to attend by phone on the adjourned date.

    IT IS FURTHER NOTED

    5.That the biological father of the child [J] has expressed a desire not to be further contacted in these proceedings and the Court dispensed with further service on him in relation to these proceedings.

    ORDER PENDING FURTHER ORDER THAT:

    1.PARENTAL RESPONSIBILITY FOR THE CHILDREN

    1.1[MR PETERS] (the “father”) and [MS MARCH] (the “mother”) shall have equal shared parental responsibility for the long term care, welfare and development of their children -

    (a)[J] born […] July 2003 (“[J]”); and

    (b)[L] born […] September 2004 (“[L]”);

    1.2Notwithstanding order 1.1, each of the mother and the father (the “parents”) has sole responsibility for the day-to-day care of any child who, pursuant to this order, is at the time residing with or spending time with that parent.

    2.WITH WHOM THE CHILDREN SHALL LIVE

    2.1[J] shall live with her mother and [L] shall live with his father.

    3.VARIATIONS TO THE ARRANGEMENTS HEREBY ORDERED

    3.1The parents may by express agreement signed by them both (and not otherwise) make additional or varied arrangements for the children to spend time with their father (“variations”).

    3.2Variations shall cease to apply if either parent shall so notify the other parent in writing, whereupon the parents must resume full and precise compliance with this order.

    4.THE CHILDREN – SPENDING TIME WITH THEIR PARENTS

    4.1During school term, [L] shall spend time with his mother and [J] shall spend time with her father on weekends as the parents shall from time to time in writing or by email or text message agree and arrange.

    4.2The children shall spend all of their school the holidays together as follows –

    (a)in even-numbered years, they shall spend the first half of the holidays with their father and the second half with their mother;

    (b)in odd-numbered years, they shall spend the first half of the holidays with their mother and the second half with their father;

    (c)all holidays are deemed to start at 6 pm on the last day of term and to end at 6.00 pm on the day before school resumes for the succeeding term;

    (d)6.00 pm on the second Saturday of the term 1, 2 and 3 holidays is deemed to be the mid-point of those holidays for the purpose of handover and splitting holiday time between the parents;

    (e)handover between the parents for the purpose of splitting Christmas holiday time between them shall occur at 6.00 pm on the Saturday that is nearest the mid-point of the Christmas holiday periods each year;  and

    (f)the parents must cause the children to be handed over at McDonalds Family Restaurant at [M] as may be from time to time necessary to implement this spending time order.

    5.SPECIAL OCCASIONS

    5.1If the mother shall so notify the father at least 7 days beforehand in writing or by email or text message, [L] must spend the time between 6.00 pm on the Friday before the Mothers’ Day weekend and 6.00 pm on Mothers' Day with his mother.

    5.2If the father shall so notify the mother at least 7 days beforehand in writing or by email or text message, [J] must spend the time between 6.00 pm on the Friday before the Fathers' Day weekend and 6.00 pm on Fathers' Day with her father.

    5.3A parent who advises the other parent in writing or by email or text message at least 7 days beforehand that he or she wishes to spend time with a child who is with the other parent on the child’s birthday may collect that child after school, or the other parent’s house at 1.00 pm if not a school day, and keep him or her until 6.00 pm that day, when the child must be returned to the other parent.

    6.OTHER MATTERS

    6.1The parents must keep each other informed of –

    (a)their respective residential addresses;

    (b)a land telephone number at which they can each be contacted at all hours;  and

    (c)any mobile telephone numbers and/or email addresses that each of them has available from time to time;

    AND they must each notify the other in writing or by email or text message of any change in such particulars within 48 hours of change.

    6.2If a child shall suffer an accident, injury or illness that is not a routine cough, cold or similar minor ailment but requires medical and/or hospital attention when that child is with either parent, he or she must provide details of that event to the other parent as soon as possible.

    6.3Each of the parties is entitled to obtain directly from any educational, health or welfare agency or professional involved in the children’s care all information regarding their education, health and welfare and each parent must inform the other of the names and contact details of all such agencies and professionals.

    6.4Should either parent need the authority of the other to secure information pursuant to the preceding order, he or she may post the form of authority to the other parent who must sign and return it to the other parent.

16. On 13 November 2008, the father filed a Parenting Questionnaire.

17. On 17 November 2008, the mother filed a Parenting Questionnaire

18. The proceedings came before me for the first day of a Div 12A hearing on 24 November 2008.  Because at that stage the orders did not provide a regime for the children to see each other or the party with whom they did not reside during school term other than by agreement, I prompted the parties to consider whether they would be able to formulate a more reliable arrangement.  The mother opposed orders for the father to spend time with J during school term.  In the event I made interim orders for the children to see each other during school term as follows:

    1.That in addition to the periods the parties agree the children should spend with the other party the children shall spend time during school term as follows:

    (b)[J] born […] July 2003 shall spend time with [the father] from 5.00 pm Friday until 4.30 pm Sunday each fourth weekend commencing the fourth weekend of Term 1 in 2009.

    (c)[L] born […] September 2004 shall spend each fourth weekend with the mother from 5.00 pm on Friday until 4.30 pm on Sunday, the second such weekend to commence the second weekend of Term 1 in 2009.

1. The effect of the 24 November 2008 orders was that the children would be together each second weekend and only one child would be required to make the journey between regional New South Wales and Newcastle on each second occasion. When the mother made the journey to collect L J usually stayed overnight with her paternal grandmother.  At that hearing, in addition to settling a list of issues for this hearing, a family report was ordered. 

2. In November 2008, the father and Ms Y had a daughter named A. A lives with Ms R and sees her father daily. 

3. As had been discussed at the 24 November 2008 hearing, shortly afterwards the mother and Mr March moved to H in regional New South Wales.

4. Because of an anomaly with the 2008 school term 4 dates, the combined effect of the various interim orders was that over the Christmas period L would not see the mother for seven weeks.  To avoid this situation she proposed that the children spend the weekend at the end of term 4 with her and that J’s time with the father commence two days late.  The father refused.  Delaying the commencement of J’s time with the father by two days would not have caused her any difficulty.  On the other hand, depriving L of the opportunity to spend time with his mother for seven weeks showed scant regard for L’s relationship with her and was likely to have been emotionally troubling to the child.  The father’s stance on this occasion warrants adverse comment about his parenting capacity, for example, his willingness to prioritise his interests ahead of the children.

5. Accompanied by the mother on her first day J started school at EW Public School in January 2009. 

6. The 24 November 2008 orders provided that L would spend time with the mother on the second weekend after J commenced school, that is, the weekend commencing 6 February 2009.  The mother was confused about the dates and did not go to M to collect L from his father.  Her confusion arose from planning dates for her forthcoming wedding so as to ensure it coincided with a weekend the children would be with her.  The father drove L to M where he waited for the mother.  When she failed to arrive the father contacted her by SMS message then returned home with L.  When she learned of her mistake the mother drove to …, which is near Newcastle, where she collected L for the weekend.  The mother was solely responsible for the difficulties which arose that weekend.  Had the parties been able to communicate effectively her confusion would have been resolved beforehand. 

7. In accordance with the orders, J was to spend time with the father on the weekend which commenced 20 February 2009.  At 3.13 pm that day the mother confirmed with him that changeover was to occur that evening.  When the orders were made on 24 November 2008 the parties understood that J would finish school at 3.00 pm.  J’s actual finishing time was 3.30 pm.  When the parties appeared before me on the first day of the Div 12A hearing I indicated that J should not be removed from school early in order to spend time with the father.  The mother abided my direction the effect of which was that she was unable to be at the contact changeover point at M by 5.00 pm.  It was only when she was on her way that she realised she would be late.  When she was not at the changeover point at the appointed time the father sent her an SMS message which asked where she was.  The mother sent replied by SMS which explained J had been at school and she would be there, clearly not on time.  The father responded that he required make up time.  He then went to M Police Station where, with L in tow, he reported the mother’s failure to arrive on time.  His mother was in the car where L could have waited and thus not been privy to the father’s complaint about the mother.  His actions were insensitive to the child’s relationship with his mother. 

8. The father returned to the changeover point where he waited until about 5.46 pm.  He sent the mother another SMS message to the effect he believed she would not be coming and said he was leaving.   The effect of her reply was that they were on their way but late.  She then informed him she was two minutes away.  The mother arrived at the changeover point at 6.00 pm.  She informed the father by SMS message she had arrived.  Although he was only 10 minutes away and could easily have returned to collect J, the father kept going.  As a consequence, the children did not spend the weekend together.  Because the mother had not earlier informed the father that J finished school later than the parties thought, when combined with her failure to arrive on time on 6 February 2009, the father’s concern about the mother’s actions was understandable.  He claimed he did not believe the mother when she said she was at the changeover point.  I was troubled by this evidence and consider it more likely that he was irritated by her delay and which he may have decided he could use to his forensic advantage.  Even if he thought she lied about being at the changeover point at worst he would have wasted about 20 minutes.  For the children’s sake he should have turned around. 

9. The father commenced contravention proceedings against the mother for her failure to deliver J to him on time on 20 February 2009.

10. In February 2009, the father resigned from the processing plant.  On his own petition presented shortly afterwards he became bankrupt. His sole debt was about $11,000 which comprised $10,000 the parties borrowed during cohabitation and subsequent penalty interest.  Although the proportions were not entirely clear to me, it seems a few thousand dollars related to the father’s car and slightly more than half related to the mother’s car.  When the parties separated they retained their cars.  At separation the father proposed that the parties each pay half.  The SMS messages suggested that the mother thought the majority of the debt was his.  The mother denied his evidence they reached an agreement to equally share the loan.  Yet on 4 December 2006 the mother paid him $37.50 which equated to one half of a loan instalment.  She would only have done this if there were at least an initial agreement she would pay something.  Perhaps in the chaos and distress of the following weeks she forgot it.  He continued to press the mother to pay half which she resolutely refused.  Once or twice he mentioned to her that he might file for bankruptcy, which suggestion the mother did not believe.   After the father became bankrupt the creditor contacted the mother and insisted she repay the entire loan.  The mother and creditor agreed the mother would repay the loan at $70 per week which for some months she had been doing. 

11. Since February 2009 the father has lived on Centrelink benefits. That month he established an accessories business which he runs from home.  So far it has not returned a profit. 

12. On 4 March 2009 the family consultant conducted her interviews for the Family Report.  This was the first time the children had seen each other in four weeks.

13. In March 2009 the mother and Mr March were married.  The children were with their mother that weekend.

14. On 20 March 2009 the Docket Registrar released the family consultant’s report dated 16 March 2009 to the parties and the Independent Children’s Lawyer.  In this report the family consultant made the following recommendations:

    51.It is recommended that the parties have shared parental responsibility for decisions regarding both subject children.

    52.It is recommended that the children live with the father and spend time with the mother each third weekend and for the greater part of the school holiday in Terms 1 and 3 until [J] completes primary school, then half of all holiday periods.  It is recommended that the father be the primary carer of the children when they are in his care.

    53.It is further recommended that the mother collect the children from the father’s home and the father collect the children from the mother’s home at the end of the time with the mother to avoid children waiting at a changeover location if parties are delayed.

    54.It is recommended that the children have free and liberal telephone time with each parent, not more than once each day.

    55.It is recommended that if the mother has experienced sexual assault and/or difficulties with her own relationships with her parents in childhood and adolescence that she attend upon a social worker or psychologist, referred to by her doctor under the Better Outcomes scheme to address these relationship issues.

    56.If the court finds that it is in the children’s best interest to live with the mother, it is recommended that the spending time arrangements occur in the reverse.

    57.If the Court finds that it is in [J’s] best interest to not continue her relationship with the father as directed by an order of the court, then it is recommended that her time with the father be by agreement between the mother and the father.

15. The proceedings came before me on 25 March 2009.   That day, the hearing was adjourned so that the parties and Independent Children’s Lawyer could participate in mediation and the father could address requirements from the Legal Aid Commission for an extension of his legal aid grant.  Because a 5.00 pm changeover had proved impractical, the 24 November 2008 orders were varied so that the changeover time was 6.00 pm.  It was also agreed the parties would inform the other on their mobile telephone if they were running late.

16. Sometime after March 2009 the father accessed the mother’s Facebook site.  Her site is protected by passwords and only people she agreed could access it were able to.  The father did not have access and so he used a friend of the mother’s to gain access.  Attached to his affidavit were copies of her Facebook profile and a photograph of J downloaded from the mother’s Facebook site.  The father said he considered it inappropriate that children’s pictures appear on Facebook.  There was nothing about J’s or the mother’s photographs which could cause concern or made them vulnerable to exploitation.  The mother and Mr March considered the father’s actions were inappropriate and an invasion of the mother’s privacy.  They both see this as further evidence of a course of conduct undertaken by him to harass the mother and in effect stalk them.  Their views are understandable and on balance probably reflect reality.

17. On 5 May 2009 the father withdrew his contravention application and it was dismissed. The mother offered the father make-up time to J for the weekend of 20 February 2009 which he accepted.

18. On 8 May 2009 the mother’s solicitors wrote to the father’s solicitors and requested that she have both children for Mother’s Day.  The interim orders provided that so long as she gave 7 days notice the children would be with her.  No provision was made for make up time, with the parties approach being basically a swings and roundabout approach to days lost and gained.  For reasons not explained the mother’s request to have the children on Mothers Day was not made 7 days in advance.  When the request was made the father refused and by letter of the same date his solicitors explained his rationale in the following terms:  “Unfortunately because of the amount of time our client has not been able to spend with [J] we are unable to accede to your request.”  As I understood it the father’s position was that unless he was given make up time the mother could not see the children on Mother’s Day.  His response was opportunistic and inappropriate.  Although the mother’s failure to give notice in time warrants unfavourable comment the spirit of the orders was clear and to the effect that the children would be with the mother on Mother’s Day and the father on Father’s Day.  Given the children’s ages this would have been, if not the first, one of the earliest occasions where they appreciated the significance of Mother’s Day.  Because this was J’s first year at school it was likely that she in particular had been involved in school activities which focussed on preparation for Mother’s Day and which she would have been disappointed to miss out on. 

19. Since then, the children have continued to spend time with the parties in accordance with the orders. 

20. The parties did not reach agreement at mediation and on 3 July 2009 I ordered an updated Family Report and listed the matter for final hearing.

21. In the lead up to Father’s Day 2009, via her solicitors the mother proposed that they swap weekends so that the children could spend the weekend with the father.  This was a weekend that L was due to spend with her.  The father agreed and, in accordance with the orders, the children spent Father’s Day 2009 with him.

22. On 16 November 2009 the father retained a private investigator to observe the mother and the children.  The purpose of this was to establish whether the mother was taking the children to her work place, whether the children were being left at home unsupervised and whether J was spending time with her father.  The private investigator, to whom the father paid $1,000 with funds his mother advanced, observed the mother on 28 and 29 November, 1, 2, 3 and 4 December 2009.  The father conceded that the surveillance report demonstrated that when mother was at work the children were supervised by Mr March and that the mother did not take the children to work with her.  There was no evidence, as he suggested to the private investigator there might be[8], that the children were left at home alone while the mother went out drinking.     Surveillance showed Mr March taking the children to visit the mother at her work place, which is a service station, on one occasion.  When questioned about why he considered it appropriate to subject Mr and Ms March and the children to surveillance, the father said that he and the mother were unable to communicate effectively and that she had refused to answer his questions about her work arrangements.  He said she also failed to respond to questions his solicitor asked.  The point which the father sought to establish was that the mother unreasonably refused to answer his numerous requests for information which in effect forced his hand.   In this respect the father’s evidence was deliberately misleading.  He made a single request of the mother for this type of information on 12 November 2007 which she said she answered.  No letter was sent requesting information of this type to the mother which tended to support her evidence that she had responded.  In short he made a single enquiry two years earlier.  The mother and Mr March viewed the father’s retention of a private investigator as a gross intrusion of their privacy and another example of his harassment of them.  It reinforced their belief that if they wished to have any privacy it would be untenable for them to reside within close proximity of the father.

    [8] Exhibit ‘J’

23. Because she was required to work the mother was unable to attend J’s 2009 end of year assembly.  Fortunately, by arrangement the father and his mother attended.  J was pleased they did.

24. On 4 January 2010 the family consultant conducted her interviews for the updated Family Report.  The report, which is dated 11 January 2010, was released to the parties on 12 January 2010.  In her second report, the family consultant made the following recommendations:

    60.It is recommended that the parties have shared parental responsibility for decisions regarding both subject children.

    61.It is recommended that the children live with the father ([Mr Peters]) and spend time with the mother each third weekend and for the greater part of the school holiday in Terms 1 and 3 until [J] completes primary school, then half of all holiday periods.  It is recommended that the father and the mother be the primary carers of the children when they are in their care.

    62.The mother should be encouraged to keep [J] in regular contact with her biological paternal grandmother and her household as this is an important identity link for [J].

    63.It is recommended that if the mother relocates to within thirty minutes drive of the children’s school then the children spend five nights per fortnight with the mother between Friday from school to Monday to school (or Tuesday if a long weekend) in week 1 and a midweek overnight from school to school in week 2 and half holidays and special occasions.

    64.It is recommended that if either party is over thirty minutes late to the changeover location without appropriate notice given to the other parent that that occasion of spending time is suspended.

    65.It is recommended that the children have free and liberal telephone time with each parent, not more than once each day.

    66.If the court finds that it is in the children’s best interest to live with the mother, it is recommended that the spending time arrangements occur in the reverse. 

The Family Reports

1. An issue arose about the weight which should be attached to the evidence and opinions expressed by the family consultant.  Set out below are some of the matters where it was asserted she had fallen into error, which errors were said to seriously detract from the efficacy of the family consultant’s evidence and recommendations. 

2. The family consultant attended the first day of the Div 12A hearing before me on 24 November 2008.  On that day the parties gave short oral evidence in which they outlined their circumstances and proposals for the future.  This supplemented the material contained in their parenting questionnaires.  Until that point the family consultant had not read any material or met the parties.  As earlier discussed the parties had not attended the previously scheduled Child Dispute Conference.  After she listened to their evidence the family consultant gave evidence which touched upon the potential issues.  The matter was stood in the list so that the parties and the father’s solicitor, with the assistance of the family consultant and Independent Children’s Lawyer, could discuss the children’s situation and, if they were unable to reach a final agreement, prepare a draft list of the issues which would provide a framework to take the matter forward.  With the assistance of the family consultant the parties and Independent Children’s Lawyer agreed that the issues upon which they and Court should focus were as follows:

   ·The children’s relationship with the mother and the father (Mr [Peters]) and the impact, if any, on the relationship in regard to distance. 

   ·The children’s relationship with each other and the impact, if any, on the relationship in regard to distance.

   ·The issue of who [J] will refer to as “dad” in the future.

   ·Whether the children would benefit from counselling in regard to their relationships.

   ·The children’s relationship with the mother’s partner and the father’s partner and children (if any).

   ·The mother and father’s capacity to support and encourage the relationship with the other and other sibling.

   ·The effect on the children if they were to live in the same household or if they remained separated. 

   ·Any other issue which the family consultant considered relevant.

3. After the list of issues was settled an order was made for a Family Report.  The order was in the following terms:

   That pursuant to s 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report shall investigate and report upon those matters identified as the List of Issues for these proceedings.

4. For the first report the family consultant conducted her interviews and observation sessions on 4 March 2009.  She interviewed the father, the mother, J and L, Ms R, the paternal grandmother and the maternal grandmother. The maternal grandmother is the mother’s mother.  The configurations of these observation sessions were set out in the first Family Report.  The family consultant reported that she observed the father, his partner, her two children, A and the paternal grandmother.  She then observed that family group with J.  The family consultant observed the mother and L who were joined by Mr March, then the maternal grandmother and J. 

1. There is a 14 months difference in the children’s ages.  While at their ages a 14 months gap will probably equip J with a slightly greater capacity to understand significant events, the distinction between her maturity and L’s is likely to be small.  In terms of which of the children could best cope with transition and long term separation from the parent with whom they do not reside, it is particularly important that L would be returned to his prior primary carer.  The ramifications of this mean that in the short term he is likely to find the transition easier and settle earlier and more easily in the long term.  This is considerably more likely to alleviate the distress he will feel being removed from his father’s care.  This is a matter to which I attach significant weight.  So that it is clear I have not overlooked the evidence about L earlier wanting to return to his father or that he has become upset at various times when with the mother and she has permitted him to return early.  These events occurred in the context of a chaotic living arrangement during which the father remained in the parties rented family home.  It is likely that during that unstable time L found a degree of comfort from being in his home.  Now that he is a little older and the orders will not have him subjected to such a chaotic living arrangement L is likely to manage the transition from his father’s primary care with some, but not overwhelming distress or ongoing psychological or emotional harm.  These factors weigh heavily in favour of the mother’s application.

2. Whichever of the various proposals is ordered the children’s opportunity to spend time with their various extended family members is affected.  A and L would see less of each other as he would with the rest of Ms R’s family and his paternal relatives.  However, L has never lived with A or O and while he will miss frequent contact with them his relationships with them will continue in a reasonably significant way. This matter does not carry great weight. I make similar observations of both children’s relationships with their extended families.

3. Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent and whether this will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.  It is appropriate to consider this issue as a matter relevant also to the father.  The distance between the parties’ homes is a complicating factor which raises practical difficulties in terms of the frequency of time the children can spend with the party with whom they do not primarily reside.  Various weekend configurations were explored during the hearing.  Ultimately, the parties agreed that during term it would be impractical for the children to travel between the parties’ home more frequently than once each three weeks.  For similar reasons it is impractical to have the children moving more frequently than once each school holidays and extensive participation in special occasion style events will be limited.  Each visit involves a roughly seven hour round trip.  I agree with the parties’ approach that at their ages the children would find the return journey more frequently than every three weeks during term and for half of the school holidays wearing.  This would probably impact on them educationally and may detract from the pleasure of spending time arrangements.

4. Although it would be possible to deliver a better outcome for the children if the parties lived closer to each other, each has good reasons for their decisions against moving. 

5. Whichever outcome is ordered it is my hope that the unsuccessful party will help the child make the transition and travel to see him or her more frequently than merely each third weekend.

6. Section 60CC(3)(f) concerns the parties’ capacity to provide for the children’s needs, including their emotional and intellectual needs.  To an extent this factor is connected to the nature of the children’s relationships with the parties.  I have already made findings critical of the father where he has made decisions which have seriously impacted upon the children but which have had as his focus, his needs.  Where the father’s needs and the children’s needs do not conflict, he has demonstrated a genuine interest in being the best parent to both children he has capable of being.  Whether his decisions to prefer his interests over the children’s is because he recognises but disregards the children’s interests, or simply is unable to consider situations through the prism of their emotional needs, was not entirely clear.  Neither option would bode well for the future in terms of his capacity to meet the children’s emotional needs long term. 

7. A separate issue arises in relation to J’s emotional needs, namely the fact of parenthood.  Had the parties not separated, the fact that Mr Peters is not J’s father would probably have been handled in such a way that no issue arose in terms of her identity, self esteem, or emotional wellbeing.  By virtue of the parties’ separation and the circumstances which have arisen since then, in particular her contact with her father and Mr March’s role in her life, issues around the fact of parenthood require consideration.  The family consultant expressed the opinion that in the father’s and Ms R’s home, J would always be an outsider.  This is because she would be the only one of the five children in that home without a biological connection to the adults.  She postulated that it was likely J would have questions of herself about why it was she was unable to reside with either of her parents.  This may cause her to question whether her parents believed she was not good enough for either of them.  At times she would feel confused and during adolescence, when developmental issues would again come into play, J may well have further identity issues.

8. If I was more confident about the father’s awareness and commitment to the children’s emotional wellbeing, it might have been easier for him to persuade the Court that he would be able to assist J as she grappled with these complex emotional and identification issues.  However, I am not satisfied, if J lived with the father that these issues would be adequately addressed.  J has always lived with a parent.  Notwithstanding her affection for the father and that for years he was her psychological father, J has established a sound relationship with Mr March who, as I have found, is committed to her welfare and will be an intimate part of her family life long term.  In these circumstances she is likely to question sooner rather than later, why she is the only child in the father’s home who is unable to reside with a parent, a theme which may well follow her into the school environment.  In circumstances where J is strongly attached to her mother and well cared for this would be a heavy burden to impose upon her.  These are matters to which I attach considerable weight.

9. I was not satisfied that the family consultant’s concern about the mother’s attachment to the children was compromised in the way she identified.  While it may have been preferable for the mother to be exclusively responsible for J’s early care than she was, the extent to which I have found the maternal grandmother was involved does not persuade me that the mother was not and is not attached to J and committed to her wellbeing.  The mother is a young parent who has been faced with very difficult parenting decisions.  While some of these decisions are suggestive of errors of judgment on her part, these decisions have been made by her with the children’s best interests at heart.  For example, she misjudged Mr RN’s lack of interest in J and the possible harmful effects for J of intensely involving him in her life before his commitment to her was evident.  During 2008 she failed to be proactive in a way which would have seen J more happily able to express her desire to see the father on school term weekends.  She misjudged, in 2008, having agreed to separate the children, the effect of maintaining a stance that this should continue.  From the children’s emotional perspective, it would have been preferable for the mother to decide against working during those weekends they were with her.  However, it is important as I have said, that the mother’s motivation was child focused and she was genuinely motivated to do the best she could for the children in the circumstances in which she and they found themselves.  In terms of the future, Mr March impressed as being a considered, well balanced, mature person.  He is a good sounding board for the mother and will be able to compliment her deliberations about the children. 

10. The father impressed as being intellectually quick and better able to grasp complex issues than was the mother.  While, in the long term, he is likely to be better able to manage the complexities of the children’s higher educational needs, the mother’s ability is adequate and there is nothing significant in relation to the parties’ capacity to meet the children’s intellectual and educational needs.

11. There are no further s 60CC(3)(g) factors which require consideration.

12. Aboriginal and Torres Strait Islander issues do not arise.

13. Section 60CC(3)(i) concerns the parent’s attitude to the child and parental responsibility.  I have already made findings which touch upon this issue.  During cohabitation the parties implemented an arrangement whereby primary parental responsibility, in terms of the children’s day to day care, was undertaken by the mother.  This was an effective and appropriate exercise by the father of his parental obligations to L.  Since separation both parties have, to varying degrees, included family or friends in the children’s care to an appropriate extent and not in a manner which could be classified as an abrogation of their parental responsibilities.  Both parties are committed to appropriately meeting their obligations as parents into the future. 

14. Sections 60CC(3)(j) and (k) concern family violence and whether there is a family violence order.  This issue has already been considered in my discussion of s 60CC(2)(b).

15. Section 60CC(3)(l) requires that the Court consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.  The longevity of the parties’ dispute has taken a heavy toll on them.  Further litigation is likely to exacerbate the tensions which ebb and flow between the mother and the father and Mr March and the father.  It would be likely to heighten the mother’s concern that the father was having her followed and increase the risk he may behave in the manner which she has in the past found intimidating and a violation of her privacy.  It is my assessment that orders in favour of the father that J lived with him would be the outcome most likely to result in further problems and proceedings.  There it little to distinguish the probability of future proceedings between maintaining the status quo and orders that both children live with the mother.  To the extent there is a distinction it centres upon an increasing likelihood over time that if the children remain separated as their relationship diminished, one or other may be less motivated to cooperate with the arrangements to spend time with the party with whom that child does not reside.  While I take these factors into account they warrant relatively modest weight.

16. Section 60CC(3)(m) permits the Court to consider any other factor or circumstance which is considers relevant.  In D & F (supra) the Full Court said: 

    There is a clear need in each case to understand the ramification of applying the factor of parenthood.  The factor may have little weight if the child has had no relationship whatsoever with the parent.  It may be of little significance where the parent poses a risk to the child’s welfare.  It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent and determinative in a dispute between a capable parent, and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.

17. Although these remarks were made in the context of the Family Law Reform Act, they are no less valid to cases decided under the current law.  Notwithstanding, the father’s commitment to J and her relationship with him, or that at present his work commitments are such that he would be able to care for her personally outside of school hours, it is particularly relevant that J’s emotional and psychological wellbeing is linked to her relationship with her mother, in part because she is biologically connected to her.  In this context, a parenthood factor, in relation to J, weighs in favour of the mother’s application.

18. There is considerable overlap between ss 60CC(4) and (4)(A) with s 60CC(3).  At various times, minor issues arose between the parties in relation to child support.  These appear to have been resolved relatively easily, or with the Child Support Agency.  The parties’ modest financial circumstances suggest this has not been a significant issue.  There was some criticism of the mother’s failure to facilitate telephone contact between the children and the father and her to make contact with the children while they were in his care.  For his part, the father has been keen to communicate with the children by telephone when they have been with the mother.  The effect of the mother’s evidence was she found that the children became upset during telephone calls with her and she felt it was easier on them not to call.  She found the frequency, which was daily, of the father’s calls to her somewhat unsettling and at times harassing.

19. The parties have now settled into a routine of twice weekly telephone calls, which they perceive works well for them and the children.  It is likely to continue to do so. 

Conclusion and structure of the orders

1. When making a parenting order the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied application of the presumption would not be in the child’s best interest.  In relation to J, her father’s demonstrable lack of interest in her care satisfies me that it would not be in her best interest for her parents to have equal shared parental responsibility.  The father applied for an order which would confer equal shared parental responsibility upon the mother and him.  Such an order would require the father and the mother to make major decisions for J’s long term care and welfare jointly, unless the Court ordered differently.  In the years since their separation, the mother and the father have engaged in constant litigation about the children.  Major decisions about the children have not been good decisions and have occurred in the shadow of intense conflict.  Although from time to time the parties have been able to communicate reasonably civilly, I am troubled that in relation to J in particular, their communication difficulties and different approaches to what would be in her best interests would make an equal shared parental responsibility order impractical and whomever J lives with will have sole parental responsibility.

2. By virtue of my findings in relation to family violence, in relation to L the presumption does not apply.  The parties agree they should have equal shared parental responsibility for L. Notwithstanding my misgivings about the manner in which parenting decisions have been made in the past, the fact that they agree to such an order makes it more likely they will be able to agree on those issues which will arise in the future.

3. Because of the distances between the parties’ homes, amongst other things, neither party sought an equal time order and proposed orders which probably satisfy the definition of substantial and significant time referred to in s 65DA(3).

4. This has been a most difficult case.  Individually the children’s circumstances have since late 2007 been materially different.  This required me to consider their individual circumstances when determining where they should live.  The mother’s claim that J’s best interests required that she remain in her primary care ultimately found favour with me.  J identifies with her mother, who has adequately cared for her.  J’s relationship with her mother is strong and as I have found, J’s emotional and psychological wellbeing is linked to her relationship with her mother, in part because she is biologically connected to her.  Unless J is able to remain in her mother’s care there will almost certainly arise certainly complex emotional and identification issues which the father has not satisfied me he would adequately address. 

5. L is settled with his father with whom he presently has his strongest adult relationship.  Putting to one side the extent to which the father has prioritised his emotional needs when they have conflicted with the children’s, he has competently cared for him.  He is committed to doing the best he can for L.  But for the importance which I consider should be attached to the children’s relationship and that it is essential they are reunited in the one home, it may be that I would not have been persuaded that L should leave his father’s care and would have adopted the approach to this issue recommended by the Independent Children’s Lawyer. I say this notwithstanding my concerns discussed earlier about the father’s parenting capacity.  This is because I appreciate that removal from his father’s primary care will not be without genuine short term distress to L.  Were it not for the clear long term benefits to him and J of their being able to live together the case would have been even more finely balanced.  In coming to this view I have not overlooked that the father could have decided to finalise these proceeding earlier on the basis of final orders which separated the children.  He did not, because amongst other matters, by then he believed the children should spend more time together than would be possible if they remained separated.  Another important factor was his desire for firm arrangements if the children remained separated for him to have regular time with J.

6. I am confident L will manage the transition back into his mother’s primary care without adverse long term consequences.  Although I would have liked to be able to structure a slightly gradual transition distance made that impossible.  As I have emphasised earlier the fact the mother was his primary carer for his first two years of life which task she competently fulfilled will stand them both in good stead as they manage the transition challenge.  Transition will be made somewhat easier by J’s presence in the home.  Perhaps also the excitement which will flow from being able to attend the same school she attends.  I also encourage the mother to participate in a parenting after separation style program of the type she was previously directed to attend.

7. L is ready for school and due to start this year.  At the end of the hearing it was agreed he would not start until these proceedings were finalised.  The point being it was preferable that he started kindergarten without the risk he would soon after change schools. As well as the real importance to the sibling relationship that the children are immediately reunited this gives an additional imperative to immediately give effect to these orders.  

8. The remainder of the orders are self explanatory.  I have adopted the generally agreed approach to weekends, school holidays and special days.  Change over will generally occur as it has in the past and at times which should continue to work.  Telephone contact will increase to thrice weekly, which increase is necessary because of more frequent stays with the father were not feasible.

1. There are orders which are designed to ensure the passage of relevant information between the parties.  There are also injunctions the terms of which are self explanatory and are designed to further motivate the parties to avoid the behaviours identified therein. 

2. The mother and Mr March wish to take the children to New Zealand for a family wedding shortly.  As I understood it she and Mr March agreed the children’s passports should be obtained.  There remained an outstanding issue about whether this should be subject to conditions the nature of which were not fully explored with me.  Before I finalise this hearing the parties will have an opportunity to make submissions on this matter.

3. For these reasons the orders identified at the start of this judgment are in the children’s best interests. 

I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  16 February 2010