SANDFORD & COBB

[2016] FamCA 11

FAMILY COURT OF AUSTRALIA

SANDFORD & COBB

[2016] FamCA 11

FAMILY LAW – CHILDREN – Travel – Provision of passports – Application to remove children internationally – Where mother has history of unilaterally taking children overseas – Where children will be removed from school – Application dismissed.

FAMILY LAW – CHILDREN – Travel – Protective Measures – Whether names of children included on Federal Police Watch List – Where mother has history of unilaterally removing children overseas – Application granted.

FAMILY LAW – CHILDREN – Best interests of the children – Whether children spend supervised time with Father – Whether immediate supervised contact – Where there are allegations of violence against the mother perpetrated by the father – Where no allegations of violence against children – Where children have no contact with father - Application granted.

FAMILY LAW – JURISDICTION – Transfer of proceedings – Where mother has moved to North East Queensland - Where parties’ legal representation located in Northern New South Wales – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sandford

RESPONDENT: Mr Cobb

INDEPENDENT CHILDREN’S LAWYER: Susan Nanlohy

FILE NUMBER: TVC 630 of 2010

DATE DELIVERED: 20 January 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 January 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Pellandine
Jensens Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Kilmartin
Adams Wilson Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nanlohy
Legal Aid New South Wales

Orders

IT IS ORDERED

1. That the mother’s Application in a Case filed 16 November 2016 in which she seeks orders for the transfer of these proceedings to the Townsville Registry of this Court, for passports to issue for the children L born … 2005 and L born … 2007 and for the mother to be permitted to take the said children out of Australia in February 2016 for a holiday to Laos is dismissed.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the counsellor or counsellors appointed by Centacare X to provide therapeutic counselling for the mother and the said children pursuant to the orders of this Court of 27 November 2015 liaise with the Independent Children’s Lawyer and keep her advised as to the progress of such counselling.

2. That the father also be involved in such therapeutic counselling as determined necessary and appropriate by the counsellor or counsellors providing the therapy, with the father to contact Centacare X within 7 days of the date hereof to discuss with them any arrangements necessary to be made for his  involvement in such therapy.

3. That the therapeutic counselling currently scheduled to be commenced by Centacare X in or around the last week of the current school holidays be conducted (subject to Centacare X being able to accommodate such arrangements within their organisational service delivery framework) such that the children are first reintroduced to actually spending time with the father, no later than during the Easter school holidays, such reintroduction to be facilitated by the staff of Centacare X, with the therapeutic counselling continuing after the reintroduction of the children spending time with the father for as long as the staff of Centacare X, in their discretion, determine necessary and appropriate.  

4. That from the commencement of the 2016 Easter school holidays, the said children shall spend time with the father as follows:

   (i)During the 2016 Easter school holidays, for up to four separate two hour periods supervised by staff of Centacare X at their centre, or off centre, at the discretion of the Centacare staff (subject to Centacare X being able to accommodate such arrangements within their organisational service delivery framework);

   (ii)From the end of the 2016 Easter school holidays, for one period of up to four hours each calendar month (including April 2016) supervised by staff of Centacare X at their centre, or off centre at the discretion of the Centacare staff, (subject to Centacare X being able to accommodate such arrangements within their organisational service delivery framework);

   (iii)During the 2016 June-July Queensland school holidays, for one period of five days and four overnights commencing at 9:00 am on the first day and concluding at 5:00 pm on the fifth day, such time to take place in Brisbane with the father and the two children staying at the home of the paternal grandmother, who shall also be living there and generally present around the father and the children during such time;

   (iv)From the end of the 2016 June-July Queensland school holidays, for one weekend each calendar month (including July 2016) either in Townsville or Brisbane at the father’s election, with the two children being able to stay with the father at his home or some alternative location in north Queensland without the necessity for the paternal grandmother to be with them;

   (v)During the 2016 September-October Queensland school holidays, for one period of eight days and seven overnights commencing at 9:00 am on the first day and concluding at 5:00 pm on the eighth  day, such time to take place in Brisbane at the father’s home without the necessity for the paternal grandmother to be with them;

   (vi)During the 2016-2017 Christmas Queensland school holidays, for one period of fifteen days and fourteen overnights  commencing at 9:00 am on the first day and concluding at 5:00 pm on the fifteenth day, such time to take place within Australia at a place of the father’s choosing and to include Christmas Day, Boxing Day and New Year if the father so elects;

   (vii)During each of the 2017 end of term school holidays, for one period of eight days and seven overnights commencing at 9:00 am on the first day and concluding at 5:00 pm on the eighth day, such time to take place within Australia at a place of the father’s choosing.

5. That the mother ensure that the two children are delivered to Centacare X as directed by staff of Centacare for the counselling therapy Centacare is to conduct with them, and also for the periods of time that the children are to spend with the father pursuant to this parenting order, including in order to handover the children to the father so that they can spend time with him pursuant to this parenting Order.

6. That the father shall, in the first instance, be responsible for any costs charged by Centacare for the provision of therapeutic counselling or supervisory services, including supervision of handovers, pursuant to Orders of this Court, with the ultimate determination as to how, if at all, any such costs should be borne differently as between the mother and the father reserved to the Trial Judge.

7. That in respect of the time provided for in paragraph (5) (ii)-(vii) of this parenting order, the father shall:

   (a)Give the mother, through the solicitors on the record for her at any time if necessary (if she will not provide him with a postal address or email address), written notice, of no less than fourteen days before the start of each period of time the children are to spend with him, as to the details of the dates and times he elects for the children to spend with him pursuant to this parenting Order;

   (b)Collect the children from premises of Centacare at the commencement of all of the time they are to spend with him and return the children to premises of Centacare at the conclusion of all of the time they are to spend with him and, so that it is completely clear, this obliges the father to fly to City X to collect the children and to return the children, even on those occasions when he might otherwise bring the children to spend time with him in Brisbane pursuant to this parenting order so that he is always accompanying the children on any flight they must make;

   (c)Be responsible, in the first instance, for any travel costs incurred in giving effect to the provisions of this parenting order that provide for the children to spend time with him, with the ultimate determination as to how, if at all, any such costs should be borne differently as between the mother and the father reserved to the Trial Judge;

   (d)Be accompanied by his mother, at his discretion, when the children are spending time with him, save for the 2016 June-July school holiday period where paragraph (5) (iii) hereof otherwise applies;

   (e)Allow and facilitate at least two telephone calls from the children to their mother during the time they are with him during the school holidays, giving them privacy to speak with her, and at least 15 minutes each call if they wish to speak with her for that length of time.

8. That should Centacare X not be able to facilitate handovers of the children at its premises at any time that such handovers are scheduled to take place pursuant to this parenting Order, the mother shall choose the location of the alternative site for handover of the children, giving the father no less than seven days’ notice in writing of such place.

9. That from the end of the 2016 June-July school holidays, the children shall communicate with the father by telephone on one occasion each week, the father to make the call to the children and the mother to make them available to speak with him, giving them privacy to speak with him and at least 15 minutes each call if they wish to speak with him for that length of time and should the children not be able to speak with the father for any reason at the time he calls, the mother shall facilitate a return call to the father within 24 hours of his first call, again giving the children privacy to speak with the father and at least 15 minutes for the call if they wish to speak with him for that length of time.

10. The mother shall forthwith take all steps necessary to cause the children’s family names on their school registration records to be recorded as “Cobb” and the father’s name to be listed on those records as the children’s father.

11. The mother shall ensure, when she is talking to the children, or within the hearing of the children, about their father, that she refers to him as their “father” or their “dad” and not by his given name “…” and if the children should refer to their father by his given name “…” then the mother shall correct them and tell them to refer to him as “dad”.

12. That neither the mother nor the father or any of her or his servants or agents is permitted to take the said children, L born … 2005 (male) and M born … 2007 (female), or either of them out of the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the names of the said children on the Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the children’s names on the Watch List until 30 June 2018 or earlier order of this Court.

13. That with the father’s consent, the father’s Contravention Application filed 7 January 2016 is to be listed for hearing along with the competing applications for parenting orders at the trial when it is listed for hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 630 of 2010

Ms Sandford

Applicant

And

Mr Cobb

Respondent

REASONS FOR JUDGMENT

1. On Tuesday 12 January 2016, I had listed before me for hearing an Application in a Case filed by the mother seeking a number of orders in these highly conflictual parenting proceedings. Orders the mother was seeking included an order transferring these proceedings to the Townsville Registry of this Court, and orders permitting the mother to quickly obtain passports for the children and to travel with them in February 2016 to Laos and other unnamed countries.

1. The father, with whom the children have not spent any time now for a couple of years, opposed each of those orders being made. So, too, did the Independent Children’s Lawyer. I determined at the end of the hearing to dismiss the mother’s application.

1. At the same time, in response to the mother’s application, the father sought certain orders providing for the children to begin spending time with him again and to communicate with him, as well as an order restraining the mother from taking the children from Australia and for the children to be included on the Australian Federal Police’s Watch List at points of arrival and departure in Australia. The ICL effectively supported the father’s application and submitted herself that the children’s best interests required time with their father to be reintroduced very quickly and to take place regularly thereafter, as well as submitting that some other miscellaneous orders  be made.

1. I determined to make orders largely in line with those sought by the father and the ICL. These are my reasons.

Some Background

1. The mother and the father began a relationship in 2001, married in 2004 and separated in 2009. Two children were born to their relationship; a boy, now aged 10, and a girl, now aged eight. These two children, who were very young at the time of their parents’ separation, have remained living with their mother since that time. 

1. The mother alleges the father perpetrated violence against her, most particularly in the final stages of their relationship, including an incident said to have occurred a few months after their separation where he is alleged to have held a gun to her head and threatened to kill her. The father denies the allegations. A protection order was obtained for the benefit of the mother with the father as the respondent in January 2010. It was for a period of two years. The father asserts that he consented to the making of the order without any admissions being made that he had been violent or that the making of the order was necessary.

1. The mother does not allege that the father was ever violent to the children, though it is alleged that the children were present when violence was perpetrated against the mother.

1. After their separation, the parents made arrangements for the children to spend time with the father between themselves. Indeed, there is evidence of an email exchange between them in January 2010 in which the mother speaks positively of encouraging and facilitating arrangements for the children to spend time with the father.

1. The mother alleges that the father then did not return the children to her in City X in north east Queensland after one visit with him in Brisbane in the second half of 2010. The father denies this. In any event, there does not appear to be any dispute that they were returned to the mother at some point without the need for a Court order to that effect.

1. The mother married again in 2011 and she and her current husband have two children together, both only very young. Her husband has two teenaged children of a former relationship who live with their mother in south-east Queensland. It seems that the co-parenting relationship between the mother and the father seriously deteriorated from the time the mother re-partnered.

1. In early 2011, the mother and her current husband and the two children, the subject of these proceedings, went to live in Country Z. The father was not informed of this at all. He asserts he had been asked to sign passport applications for the children so that the mother and her husband could take them on a family holiday to Singapore. He learned they were in Country Z after they were living there, but he was apparently able to make arrangements for the children to spend time in his care in Country Z whilst they were there. He asserts that they spent time with him, including some overnights, on three to four occasions in Country Z.

1. The mother asserts the children then began refusing to see their father. They were still very young. The mother, her husband and the children then returned to City X to live in June 2012. The father was not told of this move, but he found out they were in City X and he also found out the name of the school that the children were attending there and visited them there.

1. The boy is reported to have been very happy to see his father at that time, having embraced him warmly. That is supportive of a view that his relationship with his father was not as bad as the mother asserts it was. Apparently, that time in late 2012 is the last time the children spent any time with their father.

1. The mother, her husband and the subject children again moved, this time to Town Y in northern New South Wales, in or around mid-2013. Again, it seems that the mother did not inform the father of their whereabouts.

1. The father commenced proceedings in the Federal Circuit Court in August 2013. Through a Commonwealth Information Order that he obtained, he learned the mother was living on the north coast of New South Wales. The file was then transferred to the FCC’s Lismore Registry.

1. In March 2014, Judge Turner of the FCC ordered the parties attend a Child Inclusive Conference. The Family Consultant, who saw the parties, recommended that the children start commencing supervised time with the father at a children’s contact centre in Lismore. The ICL was appointed and in June 2014, an order was made with the consent of the parents and the ICL for the children to spend supervised time with the father at the Lismore children’s contact centre. The proceedings were listed before the Judge again in December 2014 and the ICL arranged for a family report to be prepared.

1. The children did not spend any supervised time with the father at the Lismore contact centre. The father asserts the mother did not facilitate that. He has filed a contravention application alleging that she contravened the orders requiring her to facilitate that time without reasonable excuse. I understand the mother to assert that certain preconditions to the commencement of the supervised time were not met. I cannot determine that disputed factual issue at this time. Indeed, at the hearing on Tuesday 12 January 2016, the father’s solicitor agreed that adjourning the contravention application to the commencement of the trial of the competing parenting applications was the best course.

1. The mother and her husband attended for family report interviews on 10 November 2014. The mother was seven months pregnant with their child and told the report writer that she was unwell, suffering from severe anxiety, amongst other matters, and that she did not wish to participate in the interview. She also told the report writer that the children did not wish to participate in an interview with him or an observation session with the father. No observation of the children was undertaken and the mother was not interviewed. The father did participate in interviews and a partial family report was prepared.

1. On or around the beginning of December 2014, just a couple of weeks after the mother did not participate in family report interviews, and in the last trimester of her pregnancy, the mother, her husband and the children again left Australia and went to Country Z without the father’s consent, without giving him any notice and without first seeking the sanction of the FCC. On 8 December 2014, the FCC Judge was informed of the mother’s temporary move to Country Z and transferred the proceedings to this Court.

1. The mother asserts that sometime between November and December 2014 she found a note in her letter box at Town Y which said “I know where you live”, and that she believed it to have been written by the father. She asserts that she felt threatened by it, prompting the move away again.

1. The father denies writing such a note or putting it in the mother’s letter box. No such note has been adduced in evidence as yet.  

1. The mother gave birth to her child in Country Z, but soon thereafter the family returned to live again in City X. The father learned of that in February 2015.

1. In June 2015, an updated family report was ordered and the ICL took steps to have the parties contact the X Contact Centre with a view to the provisions of the 2014 FCC order being taken up by the parties through that Centre so that the children could start seeing their father again. The father asserts that the mother did not engage with the Centre and that nothing happened to progress the children’s relationships with him.

1. A further family report was prepared in September 2015. That report recommended that, on an interim basis, the mother and the two children engage in therapy with Centacare for at least six months with a view to helping the children start to rebuild their relationship with their father and that the father should engages in that therapy as required.

1. The mother then filed the Application in a Case that I heard on Tuesday 12 January 2016 and the ICL then arranged for an order to be made by consent, by a Registrar of this Court on 27 November 2015, by which the mother was obliged to contact Centacare at City X to arrange assessment and intake interviews and, thereafter, to engage in counselling therapy at Centacare X.

Some relevant aspects of the Family Report

1. Ten year old L (“the older child”) was reported as initially “very reluctant” to go with the report writer to be interviewed; he finally agreed and calmed himself.

1. The older child reported close relationships with his mother, step-father, step-brothers and half siblings. He is reported as stating that he did not feel close to his father and that it is “not fair” for his father to come “straight into [[L’s]] life now”. He is also reported to have said “No matter how much anyone makes me see him, I will not, no matter what anybody says.”

1. Interestingly, the report writer said the older child remembered the last time he had seen his father, namely when his father came to his school in City X. The child is reported as saying that he (the child) “ran over to him and gave him a hug. I regret it now.”  When asked about that by the report writer, the child apparently said that things were different then and he had seen a bit of his father, but that he thought things had changed now as “I do remember things and I’ve been told a few things”.

1. The report writer wrote that the older child reported remembering his parents arguing; a painting landing on top of his mother; his father throwing his mother’s mobile phone in the swimming pool; and his father “always drinking”. The report writer wrote that things the child reported being told were that his father was not a good person who never did anything good or nice and that he would not let the child’s mother get money for milk. The older child is reported to have said that he would not feel safe with his father as he was “a bad person”. It was said to be “a big worry” for the older child that he and his sister might have to spend time with their father.

1. The report writer wrote that eight year old M (“the younger child”) “resolutely refused to be interviewed”. However, the report writer also wrote that whilst the mother and her husband were:

both verbally encouraging [the younger child] to go with the report writer, their body language likely conveyed a different message to her, for example, they were both effectively blocking [the child’s] route to the door and neither moved to create a path for her.

1. The report writer wrote that, when there was mention of the father by the report writer, the younger child told the report writer that “he was not her father” and the report writer observed that neither the mother nor her husband made any comment.

1. Both children, according to the report writer, resolutely refused to spend time with their father in an observation session. No such observation happened.

1. In her evaluation, the report writer wrote:

Children in the nine to twelve age bracket, although better able than a younger child to understand some of the reasons for parental separation, often perceive the issues in black and white as this is cognitively easier for them. Additionally it can help them to reduce their anxiety around parental conflict and divided loyalties. This perception often leads to alignment with one parent and rejection of the other.

This appears to be case in regard to [the older child] and likely [the younger child], although not so much could be ascertained about her thoughts and opinions. [The older child] is strongly aligned with his mother and was not able to offer any positive memories of his father. This is in contrast the Child Inclusive Conference in April 2014, where [the child] did articulate some positive memories of his father. This contract [sic – I read “contrast”] represents a shift in alignment, that is a strengthening of his alignment with his mother and rejection of his father. This may simply be due to the fact that more time has passed since [the child] has seen his father and without a recent experience of his father, his black and white thinking has strengthened. It could also be due to the fact that he has been further exposed to this [sic – I read “his”] mother’s negative view of his father, which would fit with his reporting of things he had been told about his father.

…

One of the main concerns here is the impact on [the older child’s] future psychological development, should his negative view of his father persist. The next stage for him is adolescence, a stage where identity formation is one of the main developmental tasks. Part of this task is that adolescents integrate their view of both parents into their view of themselves. This development is positive and healthy if an adolescent views both parents in a positive manner; they will form a positive view of their identity and self-image. However, the task is much more challenging for adolescents if they are attempting to integrate a negative view of one or both parents.

…

… the culture within the family has been to minimise the role of [the father]. The children refer to [their step-father] as their father. …

The children refer to [their father] [by his first name] and this does not appear to have been challenged or corrected by [the mother]; in fact she stated it was “okay”. Calling a parent by their first name conveys three messages. Firstly, it suggests to the children that, in [their mother’s] mind, the father no longer has the status of a parent. It tells them that the parental separation has altered their relationship with their father in a significant way. Secondly, calling a parent by their first name encourages a change in the children’s relationship with her as a mother – she is breaching the normal psychological boundaries between a parent and child and talking to them about their father in a way she would talk to an adult friend. Lastly, the implication is that that parent no longer commands the respect implicit in the title “Dad”. Where there is a loss of respect, there is a loss of authority.

…

[The mother] was not in favour of the children spending any time with their father.

….

[The father’s new partner] has reported that she has no experience of violence in the relationship with [the father] [They have been together two and a half years].

…

The children need to be provided with an opportunity to spend time with their father and to rebuild the relationship with him safely.

…      

If they are allowed to re-build their relationship with their father in a safe environment, it allows them to form their views and opinions based on their own experience and more recent experience. It also allows them the opportunity of having a relationship with their father free from fear.

Due to their strong alignment with their mother, [it] is likely that both children would refuse to spend time with their father, even if Orders were made. This would put the children in a position of high anxiety. Any attempt to assist them to rebuild their relationship with [their father]. Any attempt to assist them to rebuild their relationship with [the father] needs to be planned and carefully implemented. It needs to include a therapeutic element.

…

In regard to the messages conveyed about [the father] in the home, both [the mother] and [the mother’s husband] need to reinstate [the father’s] status as father to the children. Whilst the children cannot be forced to refer to their father in a different way, [the mother and her husband] can reinforce the concept of [the father] as the children’s father and refer to him as such.

It is suggested that [the mother, her husband] [and the children] have counselling with an experienced therapist. The children need to be prepared for spending some time with their father. They would also benefit from interventions facilitating some resolution to their relationship with their father. [The mother and her husband] need to be assisted to support [the children] to have a positive relationship with their father.

[The father] needs to be prepared for his initial engagement with the children and how to rebuild his relationship…

Once the family members have engaged meaningfully in the process, the children will need to spend initial time with [their father], perhaps in a facilitated context, with the therapist.

This level of intensive intervention can only be planned to a degree and will depend on how all parties engage in the intervention, how well the children are coping and the usual way that the therapist would work. Further interventions would need to be left to the therapist.

Even with an intensive level of intervention, it is not necessarily the case that it will be a success…

It is recommended that the family engage in this intervention for six months, prior to any Orders being made by the Court for the children’s time with their father.

1. The mother was not present in Court at the hearing, though not having been previously excused from appearing. She was represented by her solicitor from the New South Wales north coast. He told the Court that the mother had engaged with Centacare X and that he was instructed that therapeutic counselling for the children was scheduled to start in the last week of these current school holidays. Unsurprisingly, he submitted that no orders be made for the children to spend time with the father until therapy had been in place for at least six months.

1. In contrast, notwithstanding the family report writer’s recommendations, the ICL, who has been in the matter for a couple of years, strongly submitted that the therapy be as intensive as possible and that orders should be made for the children’s time with their father to commence by no later than sometime in March 2016. It was submitted the time should be supervised at first, but quickly transition to short amounts of time with the father, including overnight time, thereafter.  

1. The father, through his solicitor, supported the ICL’s submissions and informed the Court that he would be prepared to spend time with the children, in the presence of his mother at least, to assuage any concerns the mother might have about his care of the children in the initial period.

1. Principally, accepting the opinions of the report writer, but also the submissions of the ICL, I have determined on an interim basis that no equal shared parental responsibility should be made. It is simply not appropriate to make such an order in the factual circumstances of this case. There is too much conflict and the parents have no demonstrated recent history of reasonable communication in respect of co-parenting matters.

1. However, the best interests of the two children, in my judgment, require what might be described as “a cautious robustness” to the reintroduction of the children to spending time with their father. Immediate therapeutic counselling is in their best interests. Reintroduction to their father, through that therapeutic process, is also in their best interests, as recommended. However, I am very concerned that an open-ended time frame, coupled with the mother’s clear view that the children should spend no time with their father, will result in no actual progress towards the children spending time with their father being made in the six month period suggested, before orders providing for time are made. The real risk of the children becoming completely estranged from their father, that the family report writer has so clearly pointed out actually exists at present, in my judgment, demands a fairly robust approach. If the children do not start spending time with the father soon, it could very well be too late. At the same time, there is a need to be mindful of the need for reintroduction in a way that ensures the children’s physical safety and emotional wellbeing are appropriately secure.

1. As such, I will order that the counselling, that is to involve the father as determined by the counsellor, be conducted within a concrete time-frame for the children to be reintroduced to spending time with their father by the Easter school holidays this year. That is not to say that they are to have unsupervised time with the father by the Easter holidays, but rather, such time as is considered appropriate and facilitated by the Centacare X staff. I would expect it to be carefully supervised.

1. I do, however, consider it in their best interests to start some specific,  supervised, short periods of time with their father within the space of the Easter school holidays, if that can be facilitated by Centacare. Should there be a need, the ICL can seek to relist the matter to review these orders at the appropriate time.

1. I will order that time is, thereafter, to increase to four hourly periods of supervised time once per month, bearing in mind the father lives in Brisbane and the children live in north Queensland, before leading into a period of five days and four nights in the mid-year school holidays. Such time is to take place in Brisbane at the home of the paternal grandmother, who is to be there at the same time, though not required to supervise every moment of the father’s time with the children.

1. These are interim orders, but given the potential length of time before the matter will come to trial, I will make orders that I consider in the children’s best interests, providing real opportunity for them to re-establish relationships with their father and giving those relationships a chance of developing into meaningful relationships. They will include weekend time once per month during school term and increasingly longer periods during school holidays.

1. The orders I intend to make will obligate the mother to ensure the children are delivered to Centacare X, as directed by Centacare staff, for the counselling and for handovers, for the time they are to spend with the father. The orders will also oblige the father to pay all of the costs of the Centacare counselling and supervision in the first instance but reserve to him the right to seek orders from the Court at a later date that share the burden of those costs between him and the mother in some way. Of course, the determination of any such application would depend on many factual issues and the father cannot simply expect he will get such an order.

1. The orders will also place other obligations on the father in respect of the provision of notice to the mother, travel by him in order to have the children spend time with him, provision for the costs of travel, and the facilitation of communication between the children and the mother during any time that they are with him.

1. The orders will give the mother the option of choosing the alternative location for handovers of the children, should Centacare X not be able to offer a service at the times ordered.

1. The orders will also provide for communication by phone between the father and the children from after the mid-year holidays, imposing obligations on both parents in respect to such communication. I expect by then, the children’s relationships with the father will support the need for regular, more frequent communication between them.

1. In addition, as most particularly submitted by the ICL, I consider it appropriate, having regard to the opinions of the family report writer on the subject, which I accept at this point, to make parenting orders that require the mother to take steps to cause the children’s family names on their school registration records to be recorded as “Cobb” and for their father’s surname to be listed on those records as the children’s father. At the same time, and for similar reasons, I will order that the mother ensures that she refers to the father as the children’s father or their “dad” and not by his given name when she is talking about him to the children or within their hearing. If the children call him “…”, then the mother is to correct them and tell them to refer to him as “Dad”. I consider these critical steps towards reinstating some respect for the father in these children, as well as acknowledgment that he is their father.

What of the mother’s applications? Why dismiss them?

1. The mother sought transfer of the proceedings to Townsville as she is unemployed, studying part-time and parenting four children. She says transfer to Townsville will keep her costs to a minimum. She says she has family support in Townsville as her parents and her husband’s parents live in Townsville. She asserts it will be more convenient for witnesses who have provided affidavit evidence for her, who live in Townsville. She also asserts that transfer should ensure an earlier listing date than keeping the matter in the Brisbane list.

1. The father opposed the transfer, submitting that it would again be rewarding the mother for unilaterally moving far away from him without notice or Court sanction, even whilst the proceedings are pending in this Registry. He asserts that he also has several witnesses who reside here in Brisbane and that transferring the matter to Townsville would be just as inconvenient for them as leaving it in the list here would be for the mother’s witnesses.

1. The ICL also opposed the transfer. She is based in Lismore where the matter was previously being heard. Transferring the matter to Townsville would cause additional inconvenience and cost to her, and would, she said, likely result in an application by her to be discharged and replaced.

1. The mother’s solicitor is based on the NSW north coast, too.

1. The father asserts that the mother’s husband is again working overseas in a fly in – fly out capacity. He says he believes it is in Country P. The mother’s solicitor could not confirm that, saying he did not have instructions on the point.

1. The mother’s own application to be allowed to take the children on holiday to Laos in February confirms that she and her husband consider it to be appropriate for her to travel with the children, even though the children have started a new school year. I know nothing of whether the mother’s younger two children or the mother’s husband would be accompanying her and the two subject children on that proposed trip. The maternal grandmother is said to be accompanying the mother and paying for the trip.

1. Whilst it is possible that the matter would be listed for trial sooner in Townsville than in Brisbane, it is clearly not ready for trial yet and could not be until the therapeutic counselling and ordered time with the father has been in place for a time, so that the family may reconsider their positions in the light of developments. Leaving it in the Brisbane list with potentially longer time to trial will not, in my judgment, create additional prejudice sufficient to demand transfer at this point in time.

1. As for witnesses, having being told what the Townsville witnesses have deposed to in affidavits already filed, mostly historical observations from the time around separation, and having discussed the matter with the ICL and the father’s solicitor, I expect any cross-examination of those witnesses that is required could be arranged to take place by way of telephone connection, thus minimising inconvenience and cost to the mother and those witnesses.

1. I also have no reason to consider that the mother’s family support in Townsville will not still be available to provide logistical support in respect of the children during any time the mother is in Brisbane for the trial.

1. The evidence presented just did not persuade me to the view that the most appropriate thing to do is to transfer the proceedings to Townsville. That is why I dismiss that application.

1. As for the application for orders that would facilitate the provision of passports for the children and their travel with the mother to Laos, there was simply insufficient evidence presented satisfying me that it is in these two children’s best interests to be taken out of school, just after the start of the new school year, on a holiday to visit a maternal family member, who lives in Laos. Whilst I acknowledge that safe travel is mind-broadening and educational for children, there is no evidence explaining why the holiday is proposed just after school starts back after a long Summer holiday period has ended.

1. The undisputed evidence that the mother has made several moves over the years since separation without seeking his approval in advance, and without even giving him any notice, including twice to Country Z, (once after allegedly telling the father that the family was just going on a holiday to Singapore) concerns me sufficiently not to permit the mother to take the two subject children with her on the proposed trip to Laos. Of course, I do not stop the mother travelling with her mother to visit Laos, but I will not sanction her taking the two subject children with her out of the country at this point in time. That is why I dismiss that application.

1. In the immediate circumstances of this case, the evidence does not compel me to consider that passports for these children are necessary, just at the moment, whilst this highly conflictual parenting litigation still remains pending. That is why I dismiss that application.

1. Furthermore, the protective measure of having the names of the two children included on the Federal Police Watch List should give the father, the mother and the ICL, as well as this Court, comfort that the children will not be unilaterally removed from the country by either parent whilst the matter remains pending in this Court. Accordingly, I will make that order.

1. The orders I make are those set out at the commencement of these written reasons.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 January 2016.

Associate: 

Date:  20 January 2016