Standish and Standish

FAMILY COURT OF AUSTRALIA

STANDISH & STANDISH

[2012] FamCA 443

FAMILY LAW ─ CHILDREN ─ Presumption of equal shared parental responsibility ─ Where it is in the children’s best interests in this case that albeit not by operation of the presumption and its non-rebuttal, but because it is in the children’s best interests to do so, an order for equal shared parental responsibility is made.

FAMILY LAW ─ CHILDREN ─ Substantial and significant time ─ Where the arrangements proposed by both parents could be regarded as conferring or providing substantial and significant time for the children with each parent however the definition in section 65DA(3) precludes the Court from so finding by virtue of the distances between the parties places of residence ─ Where qualitative rather than quantitative considerations are the more significant, and that an arrangement of the kind the Court will order is likely to be more enduringly workable and beneficial for the children than the superficially more attractive alternative.

Evidence Act 1995 (Cth) s 141
Family Law Act 1975 (Cth) Part VII; ss 4, 60CC, 61C, 61DA(1) & (2), 65DA(3), 65DAA

Abalos v Australian Postal Commission (1990) 171 CLR 167
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
SSHontestroom v SS Sagaporack [1927] A.C. 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
Voulis v Kozary (1975) 180 CLR 177

APPLICANT:

Mr Standish

RESPONDENT:

Ms Standish

INDEPENDENT CHILDREN’S LAWYER:

Boyd & Longhurst

FILE NUMBER:

DUC

2011

DATE DELIVERED:

10 May 2012

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Dubbo

JUDGMENT OF:

Coleman J

HEARING DATES:

7, 8, 9 & 10 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Battley

SOLICITOR FOR THE APPLICANT:

Kelly Hardie Solicitors

SOLICITOR FOR THE RESPONDENT:

Ms Standish in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dalziel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Boyd & Longhurst

Orders

That the Mother and the Father have equal shared parental responsibility for the children, namely Y Standish, born … January 2003, and N Standish, born November 2006 (“the children”).
That the Mother shall have responsibility for decisions as to the children’s day-to-day care, welfare and development during periods when they are spending time with her and the Father shall have such responsibility when the children are spending time with him.
That the children shall spend time with the Mother, as agreed, but failing agreement as follows: -
3.1    On two (2) weekends from the conclusion of school Friday to 4:00 pm Sunday during each gazetted New South Wales school term.
3.2     On Mother’s Day weekend from the conclusion of school Friday to 4:00 pm Sunday.
3.3    As to Orders 3.1 and 3.2, the Mother shall spend such time with the children at town X or at other places as agreed between the parties, and the Mother shall give the Father twenty one (21) days’ written notice in writing that she intends to exercise the time with the children.
3.4    For one half of each New South Wales gazetted school holiday period, being the first half in odd-numbered years, beginning in 2013, and each alternate year thereafter, and the second half in even-numbered years, beginning in 2012, and each alternate year thereafter.
3.5    The “first half” of a school period means from 9:00 am on the day following the last day of the school term until 4:00 pm on the Saturday falling closest to the mid-point of the holiday period and the “second half” of a school holiday period means from 4:00 pm on the Saturday falling closet to the mid-point of the school holiday period.
3.6    At such other times as agreed between the parties.
3.7    The children otherwise spend time with and be in the care of the Father.
That to give effect to these orders, the parties shall deliver the children to and collect the children from a public place in Tamworth, New South Wales agreed for that purpose, or such other places as the parties may from time to time agree.
That the Father cause the children to communicate by telephone with the Mother each Monday and Wednesday between 6:30 pm and 7:00 pm.
That if either child is hospitalised or receives medical attention, the parent, with whom he or she is living with or spending time with, shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That within fourteen (14) days or within the same period of enrolment at any school, the Father shall do all acts and things and provide irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the Mother copies of all of each child’s school reports, merit cards and all documents pertaining to each child’s academic and extra-curricular activities.
That within seven (7) days of receiving order-forms for school photographs, the Father shall provide the Mother with copies of such forms.
That if either parent proposes to change his or her place of residence, he or she shall give not less than one month’s notice in writing of that intention to the other parent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Standish & Standish 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 DUBBO

FILE NUMBER: DUC 28 of 2011

Mr Standish

Applicant

And

Ms Standish

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

introduction

The proceedings before the Court relate to parenting orders for two children of the former relationship of the parties who are their biological parents. The parties shall be referred to throughout these reasons as the father and the mother, as indeed, they are. The children the subject of the proceedings are Y, who was born in January 2003, who is nine years of age, and N, who was born in November 2006, who is five years of age. In essence each party seeks that the children primarily live with him or her and have what in the lay sense could be described as substantial and significant time with the other parent.
The parties largely seek identical orders, albeit mirror reversed, in relation to the time which the children should spend with the parent with whom they do not primarily reside. The difference in that regard is that whereas the father seeks that all school holiday periods be shared equally, the mother seeks that the parent with whom the children do not primarily live have the children spend time with him or her for three quarters of all school holiday periods. Save in that respect, the Court does not perceive that the mirror reverse proposals of the parties differ in any respect and certainly they do not differ in any significant respect.
It might be thought that the issue of credit assumes significance. It does not in the traditional sense in which credit or credibility is considered in proceedings such as these, which are governed by the civil standard of proof, which, pursuant to section 141 of the Evidence Act 1995 (Cth), is the balance of probabilities. As not infrequently occurs, and the Court is confident has occurred in this case, the perceptions of each of the parents in relation to events, some quite antiquated, the Court considers to have been coloured by the passage of time, the emotional nature of the issues involved, the possible impact on recollections of events at those times of the intake of substances, and the understandable need to advance the version of events with which that party is most comfortable.
The Court does not find that either party has consciously endeavoured to portray events in a way more favourable to him or her than reality might suggest to be the case in an endeavour to improve his or her prospects of success in the case. Both parents impressed as parents of sensitivity and integrity, each of whom has overcome not insignificant difficulties, the nature and extent of which is well documented in the evidence, and particularly in the expert opinion evidence of Dr S, a medical practitioner with specialist qualifications in psychiatry.
Ultimately, the Court’s findings of fact which inform the exercise of its discretion by reference to the statutory provisions contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”) are not significantly relied upon preferring the evidence of one party to that of the other where the two are in conflict. Interestingly, the Court has, for reasons which now do not matter, the benefit of what might be described as snapshots of the parties at three different times.
The first time is April 2011 when Mr W, a family consultant, provided a report based upon interviews which he had with the parties. The second is the report of Dr S of October 2011, based on interviews in August 2011. The third and most recent is the evidence which the parties have given during the course of the trial which has occupied the current week.
Interestingly, what emerges from the analysis of the evidence of each of Mr W, Dr S, the parties and their witnesses is in some respects a commendable improvement in various ways which are relevant within Part VII of the Act, in other ways confirmation of certain themes first identified by Mr W, amplified by Dr S, and the subject of evidence, primarily from the parties themselves, and, to a lesser extent, other family members who have testified earlier this week.

background

A chronology to the proceedings provides a helpful background. The chronology is, as far as possible, uncontroversial. The material facts, by reference to which the Court approaches the proceedings, can briefly and in precise form be recorded in the following terms.
The mother was born in 1970. She is 41 years of age. The father was born in 1972. He is approaching 40 years of age. The parties met in August 2001. In January 2003 the child Y was born.
The parties, it can safely be said, had a relationship which was at times tumultuous, and the shadow of substance abuse appears to have hovered over it, or permeated it, perhaps, at times.
The parties had separations from as early as 2004. There were moves in 2004. There may have been family violence at that time. There are certainly allegations and counter-allegations about family violence in 2004. The Court is unable to make definitive findings of fact about family violence at that time, and ultimately does not need to for reasons which will emerge.
The parties reconciled in 2005.
In November 2006 the child N was born. In April 2006 the parties married. They were at that time living in far North Queensland. Thereafter they moved to town X in the western plains region of New South Wales.
In May 2007 the father relocated from town X to far north Queensland. In late 2007 the mother and the children also moved to Queensland and the parties and the children lived as a family.
There were further movements by the father during 2008/2009 essentially for employment. The mother and the children remained in far north Queensland.
The parties finally separated on 9 January 2010. In March 2010 the father with both children relocated to town B. The mother relocated to another town near town B, both premises being in far north Queensland. The evidence in relation to events between that time, that is March 2010 and August 2010, leaves little room for doubt that both parties were struggling with various issues, largely related to substance use or ingestion, and that, in effect by default, from March 2010 for a period of about eight months the father was the primary carer of the children. The mother’s evidence in her affidavit material at least tacitly acknowledges that to have been so. The evidence of Dr S confirms, albeit from a somewhat different perspective, that reality.
In August 2010 the father and the children returned to town X. The father’s family has substantial connections in the western plains region, although more at town L than town X. The mother remained in far north Queensland. In November 2010 the mother came to town X to visit the children. As would be obvious that was about the time when N turned four years of age. On or about 8 November 2010 a series of events occurred which had a significant impact on the children’s living arrangements.
Reference will be made to this again in somewhat more detail in due course, but in short, in circumstances which are less than clear but which do not reflect adversely on either of the parents, a suggestion, inference, or possible allegation, never specified or articulated or made by the mother or the child Y, emerged. The effect of the innuendo was that Y may have been inappropriately touched or interfered with. Although the Court does not understand there to have been, whatever its origin, any suggestion that the alleged perpetrator of anything untoward was the father, the evidence leaves little room for doubt that, to use the colloquial, the finger was not pointed at anyone but the father.
There was, not surprisingly, an angry and hurt response by the father, when the father became aware, as the evidence reveals, that there was some suggestion that he had inappropriately touched or interfered or dealt with Y. The upshot of this was that the mother removed Y, with the father’s acquiescence, albeit the parties have a different version of upon what basis Y’s care passed to the mother. There were subsequent proceedings, not surprisingly, in which mediation was undertaken but without success. Proceedings commenced in the Local Court the following month. The contest was whether Y should remain with her mother on an interim basis or return to her father.
It is less than entirely clear whether, at the time it occurred, the mother had the benefit of Court orders permitting her to do so, but in any event, and quite properly no one criticises the mother for doing so, she returned with [Y] to far north Queensland. It is unclear whether by that time the examinations or investigations or other inquiries arising from the events of 8 November 2010 or thereabouts had been completed by the authorities. It is not in doubt that no one has ever been charged, or, having regard to the evidence which this Court has heard, could ever reasonably have been charged in relation to any events which gave rise to the examinations of [Y] which occurred on or about 8 November 2010 or shortly thereafter.
Not surprisingly, the father and N residing in the western plains region, and the mother and Y in far north Queensland, contact between the children thereafter was difficult. The evidence before the Court, which is not in contest, is that, subsequent to Y’s return to far north Queensland with the mother, the children were together on a number of school holidays but were not together during a number of the school holidays. Partly that was because the parties appear to have been unable to make such arrangements. Why that is so, is not entirely clear. Distance and money appear, however, to have been factors, as was a difficulty of communication between the parties.
The opportunity for the children to be together in the Easter holidays this year was lost as a consequence of the mother relocating herself and Y to the mid north coast region of New South Wales without, for a period of eight to nine weeks, as she admitted, telling the father that they had done so. The father, it might be noted, had earlier moved from town X to town L without notifying the mother of that move in the way in which he should.

equal shared parental responsibility

Against the background of that brief chronology it is appropriate to proceed to consider the first matter to which the Court needs to have regard, and that is the question of equal shared parental responsibility. That issue can be determined without the detailed consideration of the evidence of the parties and other witnesses who gave evidence which will follow this consideration.
Section 61C of the Act provides that each of the parents of a child who is not 18 years of age has parental responsibility for the child.
Section 61DA(1) refers to the presumption of equal shared parental responsibility and records in subsection (1) that:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This is subject to certain other matters which appear in subsection (2), and are relevant for present purposes. Those matters record that:
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Section 4 of the Act defines family violence in the following terms:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
It will readily be apparent that family violence is very broadly defined, and that it addresses states of mind as well as acts. It addresses actual as well as threatened acts. The provisions of section 61DA(2) are also broad in their terms, referring to the Court having reasonable grounds to believe that there has been family violence. That is to say, the Court is not required to find on the balance of probabilities that there has been, but to have reasonable grounds for believing that there has. When regard is had to the terms of section 61DA(2) and the definition of “family violence” in section 4, the inference is inescapable in the circumstances of this case that section 61DA(2)(b) is enlivened and that the presumption of equal shared parental responsibility does not apply.
In summary, the facts which are not controversial, which support concluding that the presumption does not apply, are the following:
·the children’s reports to Dr S;
·the evidence of their parents in relation to the children’s statements;
·the mother’s assertions in March 2010 to police with respect to events in 2003 or 2004 and 2008 involving the father, which even on the father’s version of those events would fall within the ambit of family violence or at least the Court having reasonable grounds for believing that there had been family violence;
·the incident involving the barbecue tool in March 2010; and
·the events of November 2010 following upon the unfortunate medical examinations of the child Y in relation to possible abuse of or interference with her.
These events, on any view of the evidence, are sufficient to enliven section 61DA(2). However just because section 61DA(2) is enlivened and the presumption does not apply, does not mean that the Court cannot, in the best interests of the children, order equal shared parental responsibility. It means that if that is to occur it must be because so doing is concluded to be in the children’s best interests rather than because a presumption to that effect operates and is not rebutted, and not precluded by other provisions of Part VII.
The second matter which flows from not applying the presumption in the circumstances of this case has but minor significance, but it can be recorded that as the presumption does not apply there can be no question of its rebuttal or non-rebuttal, and it is arguable that there is no obligation pursuant to section 65DAA of the Act to consider the series of options which are articulated in that section. In short, as the presumption does not apply then it is arguable that the requirements of section 65DAA need not be considered.

Conversely, and the Court prefers in the interests of more abundant caution to adopt this approach, the wording of section 65DAA(1) is:
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA is not limited to orders for equal shared parental responsibility which arise pursuant to the presumption created by section 61DA. If a parenting order is to provide that a child’s parents are to have equal shared parental responsibility for the child the Court must consider the various options therein referred to, whether equal shared parental responsibility arises pursuant to the presumption created by section 61DAA or by reference to best interests if it does not or is rebutted.
Whilst it would be unusual for the presumption to not apply or be rebutted and there still be an order for equal shared parental responsibility, for a variety of reasons, which will briefly be indicated, it is in the children’s best interests in this case that, not by operation of the presumption and its non-rebuttal, but because it is in the children’s best interests to do so, there will be an order for equal shared parental responsibility. The parties and the Independent Children’s Lawyer (“ICL”) invite the Court to make such an order. That is a matter the Court takes into account, but obviously that matter cannot absolve the Court from the obligation to be independently satisfied that such an order is in the children’s best interests.
In the circumstances of this case it would be in the children’s best interests for their parents to have equal shared parental responsibility for them. There is a growing willingness of the parents and an increasing capacity to communicate, to co-operate in the interests of the children, and a refreshingly increasing ability, demonstrated on the evidence, to put behind them the disappointments and issues associated with their unsuccessful relationship, to overcome or override their mutual concern and suspicion about the other parent, and to move, to the best of their ability, to facilitate effective parenting of their children.
For those brief reasons, albeit not pursuant to the presumption, the Court will order that there be equal shared parental responsibility.

section 65DAA factors

Adopting the construction of section 65DAA(1) previously referred to, it is convenient at this point, for reasons which will become readily apparent, to address the series of possible outcomes which section 65DAA of the Act mandates, or as the High Court has said, must be established as jurisdictional facts before orders of the kind therein described can be made.
The first option the Court must consider is the children spending equal time with each of the parents. There are two aspects of that. The first is the desirability, in terms of the children’s best interests. The second is the practicality of doing so. It may be, in this case, that if it were reasonably practicable, the children spending equal time with each parent would be in their best interests.
The evidence before the Court suggests that if the parents lived in close proximity to each other that may well be in the children’s best interests. It cannot be suggested, and no one does, that with the parents separated by a seven or eight hour drive, that it is reasonably practicable for the children to have equal shared time with each parent. The distance precludes that. The impact of the distance is that it would place upon the parents an impossible financial and physical burden in terms to make the arrangements work. It is improbable that the arrangements could be made to work, and even if they could, the physical strain on the parties, and more significantly, on the children, and the disruption of moving between schools, precludes that option from being seriously contemplated.
It is then necessary to consider whether an order providing that the children spend substantial and significant time with each of the parents would be in their best interests and reasonably practicable. It is not in doubt that if using the expression “substantial and significant time” in the lay sense it would be highly beneficial for the children if they were able to spend more time with the parent with whom they do not primarily live than the parties sensibly acknowledged to be possible or practicable. At face value, and in a lay sense, the orders proposed by each party might be thought to constitute substantial and significant time. The orders proposed by the parties are practicable or as practicable as anything could be.
However, when regard is had to the definition of “substantial and significant time” in section 65DA(3), notwithstanding, in the lay sense, that the arrangements proposed by both parents could be regarded as conferring or providing substantial and significant time for the children with each parent, the definition in section 65DA(3) precludes the Court from so finding. That is because the effect of section 65DA(3), which is expressed in terms of “if and only if”, includes days that fall on weekends and holidays and days that do not fall on weekends or holidays and include time which allows the parent to be involved in the child’s daily routine and other events. Given that the proposed orders necessarily, by virtue of distance, do not enable the requirement of section 65DA(3)(b)(1) to be satisfied, the orders the Court makes cannot be regarded as providing substantial and significant time.
It remains, as is the case irrespective of how those orders are categorised, to determine what is in the best interests of the children by reference to the evidence before the Court. It is appropriate to briefly review the evidence of the parties, their witnesses and the experts who have given evidence before the Court. Before doing so, it is appropriate to record some limitations which, regrettably, have been placed upon the mother, and for reasons which will briefly be explained, the Court in the determination of these proceedings.

limitations placed upon the mother

The father has been represented by counsel of great experience and competence. For that he cannot be criticised or punished. The ICL has been represented by experienced and competent counsel. Regrettably, for reasons which are not entirely clear and about which the Court does not and cannot fairly criticise anyone, the mother has had to represent herself. That is all the more regrettable because the thrust of Dr S, the independent expert’s evidence, is clearly more favourable to the father than to the mother. Whilst articulate and clearly intelligent, and with respect to her, commendably able to wear the two hats which the mother was unfortunately required to wear, that is to say, as her advocate as well as a party, there can be no pretending that the contest was even.
As the record would hopefully reveal, the Court has, throughout the trial, endeavoured to provide the mythical level playing field. The Court has attempted to point out to the mother matters which procedural fairness demanded that, as a litigant in person she be advised of. As the record would hopefully reveal however, the Court has not, in effect, undertaken the cross-examination which, were she competently represented, may or may not have been undertaken on behalf of the mother. That is not inadvertent.
Whilst it might be thought that the Court could do that, reflection suggests that not to be so. If the Court cross-examines a party and raises matters which would not otherwise have been raised, and the answers to those questions are damaging to the case of the party who gives the evidence or whose witnesses give such evidence, and helpful to, in this case, an unrepresented litigant who has not asked those questions, the integrity of the judicial process is irreparably compromised. To use the colloquial, “the Court has entered the arena”, and albeit not intending to do so, has, again to use the colloquial, “weighed in” in ways which ultimately have assisted the cause of one party.
One has to think only a little further in relation to this and the question arises, well, what if the case turns on evidence which emerged during the course of cross-examination of a party or witness by the Court in relation to matters that were not raised by the party who benefited from them. The answer is that the proceedings have been totally flawed.
On balance, the Court has endeavoured to direct the mother as far as it permissibly could in relation to topics and raised with her the reality that if she did not challenge or contradict the versions of events, they may be preferred to her version of events but has, not without some difficulty at times, refrained from cross-examining the father, his mother or either of the expert witnesses. That might legally be the correct approach and hopefully is, but there is no denying the unease which a Court feels when this occurs. It means that a case must be decided forensically on the basis of what is, not what might have been, and one will never know what might have been had, for example, the father and/or his mother been cross-examined by experienced and capable counsel on behalf of the mother.
None of this is said critically of counsel for the ICL, who is not and cannot be expected to and ought not, in most cases, certainly not in a case such as this, in effect take up the cudgels for the party who is unrepresented. Counsel for the ICL discharged his obligations fairly and without favour, testing the evidence which required testing. That is some comfort but the reality remains that counsel for the ICL was not and could not be expected to be, the mother’s advocate.
As noted earlier, thankfully, issues of credibility or credit do not assume decisive or even major significance, ultimately, in the determination of this case.

the father’s evidence

The father gave evidence and was cross-examined. He impressed as a man who has been on a journey of self-discovery and has, during the course of that journey, gained considerable insight into his own shortcomings as well as the needs of his children and the importance of their relationship with their mother.
The father is not a saint. He does not pretend that he is. He refreshingly conceded matters with respect to the past and the future, which gives the Court confidence in his ability to provide emotional and psychological support for the children if they both live with him, and with increasing capacity and motivation to promote the relationship between the children and their mother if that is the outcome of the case. The father’s arrangements for the children need not be referred to in detail, nor need those of the mother.
As Mr W, the family consultant, recorded in his evidence yesterday, and the evidence before the Court is entirely supportive of his assertion, this case is not about physical capacity. The children will be well provided for in every relevant material sense wherever they reside. They will go to school and will be adequately fed, clothed nurtured, whichever parent becomes their primary carer.
There are some matters in Dr S’s report about financial or material distinctions between the two proposals. Whilst those may be so, the Court does not place any weight in the father’s favour on any apparent or real superiority of his finances over those of the mother. That is particularly so, given the one dark cloud on the father’s horizon, which relates to his inexcusable failure to prioritise his obligation to pay Child Support appropriately. It stands in stark contrast with everything else in the father’s case that he has not been able to arrange his affairs to avoid having incurred what, for someone in the mother’s circumstances, must be a massive amount of money, $4,000, in unpaid Child Support. It would be little short of disingenuous for the Court on the one hand to have regard in the father’s favour to materially better financial circumstances than those of the mother, when the reality is that the mother is the father’s creditor in relation to Child Support to the tune of $4,000.
The father’s evidence in relation to Child Support reflects little credit upon him. It is a factor that, as the mother suggested, can and should be taken into account when the Court comes to consider whether the father really means what he says in terms of the children’s relationship with their mother if they were to live with him.
The father was cross-examined in relation to his use of and dependence upon substances. His evidence in that regard was able to be accepted, and no one seriously suggests that it ought not be. There is a correlation between the position of the father and that of the mother in that regard, in that each of them has had difficulties with substance use or abuse in the past. Neither party currently, the evidence reveals, has a difficulty with substance use or abuse, but one cannot foretell the future in relation to how either of the parties would cope with greatly increased stress.
It can, with some confidence, be said that the evidence suggests that the ability of each parent to cope with stress of the kind they experienced when they were together is problematic but that, on both sides, since their relationship ended, the psychological wellbeing of each parent has improved, and their reliance upon the need for substances has declined. In giving his evidence in relation to the events of November 2010 and subsequently, and the separation of the children, the father revealed a sadness which was palpable, observing him in the witness box and listening to his evidence.
To his credit, and indeed to the credit equally of the mother, each in the witness box disavowed adopting what has been described as a fallback position. That is to say both parents, to their great credit, have had the courage and commitment to the wellbeing of their children to say to the Court that the children should not be separated, come what may. The temptation on each side to advocate for both children residing with him or her, but that if the Court did not consider that to be the best option, leaving the children where they currently reside must have been substantial, and it reflects well on both parties, and equally well on both, that the parents have adopted the positions that they have.
The father was cross-examined in relation to his move without notice to the mother. As he acknowledged in his evidence, that was not something which reflected credit upon him. With respect to the mother, the difference between that move and the circumstances surrounding it, and the mother’s move earlier this year to which reference will again be made, and the subterfuge as it was accurately described by counsel, falls into a somewhat different category. That is not to excuse what the father did but to record that there is a difference of significance between the two unilateral and unannounced moves.
In the course of his cross-examination, the father made a series of concessions which were favourable to the mother and clearly would have been realised by him to have been unhelpful to his own case. He acknowledged that he had not seen or heard anything bad about the mother’s care of the children since separation.
He further conceded that it would be very upsetting for the child Y to be removed from her mother. The father volunteered that it would be a “long process” both for the children and the parents if Y were to be removed from her mother to reside with him. The father’s evidence in relation to these and other matters was impressive. It may be, as the mother at least inferentially may have been suggesting, that the father, and when she gave evidence, his mother, were telling the Court what they thought, no doubt accurately, the Court might find hearing favourable to the father’s case.
Assessing demeanour is not an exact science, as Kirby J has explained on numerous occasions in judgments in the High Court, but the observation of witnesses when giving evidence in trial proceedings remains a matter which the authorities and particularly cases in the High Court have recognised as part of the trial judge’s advantage, as it is described (see SSHontestroom v SS Sagaporack [1927] A.C. 37, Abalos v Australian Postal Commission (1990) 171 CLR 167, Voulis v Kozary (1975) 180 CLR 177 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588). Unless the father is an actor of considerable and undiscovered talent, the Court is comfortable to accept that he means what he says. That impression is reinforced by his willingness to make concessions and the absence of any attempt by him to try to justify what could not be justified, that is, his failure to pay Child Support.
The cross-examination of the father in relation to alcohol, his dependence upon his mother, both in terms of his employment and the care of the children, revealed nothing untoward. The Court accepts that the father has greater insight into the tasks of parenting the children than previously, noting, in that regard, that Dr S identified, as at August 2011, that the father’s insights into these and related matters were somewhat “superficial”. Conscious of that, the Court has closely scrutinised both the things the father said, and the way in which he said them.

the paternal grandmother’s evidence

The paternal grandmother, Ms E, was cross-examined. The paternal grandmother impressed as a loving, caring grandmother and a witness of truth. The grandmother had not been in the witness box long before she made a series of concessions, largely unsolicited, which were favourable to and complimentary of the mother.
The paternal grandmother readily conceded that the children love their mother, and the mother loves the children, subject to the reservations expressed by the grandmother in the material which is before the Court, from which she did not resile, but which she did not seek to embellish or advocate in the witness box. The grandmother made concessions or volunteered things about the mother’s capacity and commitment which were favourable to the mother’s case.
The paternal grandmother, Ms E, conceded that the child Y had a very, very close relationship with her mother. She conceded that she had not, in the post-separation period, seen the mother act in any way inappropriately with either of the children. She conceded or volunteered to the mother that the mother had many very good qualities, but that there had been times in the past when the mother’s behaviour had not been in the best interests of the children. The paternal grandmother readily conceded, as did her son, that removing Y from the care of her mother would be distressing for Y, that it would take time for Y to adjust to the change, and that a great deal of sensitivity and effort would be needed for that to successfully occur.
During the course of cross-examination, the paternal grandmother referred to a telephone conversation which she asserted had occurred in about August 2010, in which she asserted that the mother had said to the child Y “I’m going to send my jewellery, miniature car collection and some other things down to the children, then I’m going to kill myself” or words to that effect. The grandmother’s evidence is that, upon hearing those words or words to that effect, not surprisingly, Y in particular became distressed, and that her distress continued throughout the night. Importantly, the grandmother said, and there is no reason not to accept her evidence in this regard, “Mummy does not mean that”.

The evidence of the mother in relation to the conversation was that she did not say “then I’m going to kill myself” but that she said, having stated her intention in relation to items of personalty being sent to the children, “then I’m gone, I’m done”. Quite properly, the mother acknowledged that it would have mattered little to the children, and particularly to Y, which words were actually stated, and that Y would have, at that time, clearly understood the significance of whichever words were used, and been greatly disturbed by them.
The conversation is only a small piece of evidence but, particularly as it occurred five months after the mother last used substances of abuse, it is of some significance and it does provide some factual underpinning for matters which find expression in the expert opinion evidence of Dr S. The mother’s evidence, which there is no reason not to accept, is that she reconsidered, she reflected upon the conversation to which reference has just been made, and shortly thereafter, the next evening or perhaps next but one evening, again spoke to Y on the telephone and said that she was going to go “overseas”.
With respect to the mother, that may well have been less disturbing or distressing for Y than whatever was said on the previous occasion but, as objective analysis of it suggests, the mother’s words still conveyed the curious and abiding notion that the mother would not be around for some unspecified period for the child. Again, it is but one piece of evidence in the case but it does, on any view of it, cause some concern and it is certainly supportive of some matters to which Dr S referred.
The paternal grandmother was cross-examined in relation to her involvement in the arrangements for the children and her influence over her son. The mother’s position was perhaps encapsulated in her suggestion to the grandmother that she had “interfered and caused anarchy” in the relationship between the mother and the father from as early as 2004. In what way that occurred or is suggested to have occurred is less than clear. The paternal grandmother’s assertion was that she had always tried, successfully or otherwise, to help the parties.
During the latter stages of Ms E’s cross-examination by the mother, the Court became particularly conscious that, to use the colloquial yet again, the paternal grandmother appeared to be treading on eggshells. It was palpably obvious that, on the one hand, Ms E did not resile from criticism she had raised with respect to the mother’s parenting in the past, whilst on the other, was at pains to avoid further criticism or escalation of old disagreements, or doing things or saying things which she clearly recognised would be likely to be inimical to an ongoing relationship between herself and her son on the one hand, and the mother on the other.
The paternal grandmother’s evidence in that portion of her cross-examination was particularly impressive. She was presented with the opportunity during that cross-examination to not hold back. That was her opportunity to really say what might have been on her mind. She did not do so. Her forbearance was impressive and suggests that, notwithstanding that the grandmother has her own views about the mother’s shortcomings, past and present, save to the extent that she is, as she was at times in cross-examination, challenged about them, they are things which she prefers to keep to herself, and subordinate to promoting as well as she can, the children’s best interests and their ongoing relationship with their mother.
The paternal grandmother’s evidence leaves the Court comfortably satisfied that she would assist the wellbeing of her grandchildren in every way she could, including promoting their ongoing relationship with their mother. She, perhaps more than the father, manifested recognition of the importance of that relationship.

the mother’s evidence

The mother gave evidence and was cross-examined. Without being patronising, it is fair to say that the mother has overcome huge difficulties in the period since March 2010. As Dr S’s evidence records, and the Court accepts that evidence for reasons which will, in due course, be articulated, the mother has had significant health issues.
The evidence is not entirely clear but it is clear enough to be able to find, with confidence, that the mother has experienced financial difficulties in the post-separation period. She has had a number of changes of accommodation since the end of 2011. None of those has been other than because of circumstances beyond her control. It can fairly be said that the mother’s current circumstances are the most favourable to her case of any which have prevailed since March 2010.
The mother explained in evidence which was moving and credible, how she came to be living where she is on the Mid North Coast. She explained the process of moves both in terms of accommodation and schooling for Y, attendant upon that process. The mother clearly has a stronger support network now than she probably has ever had, but certainly has had since March 2010.
The mother has secure accommodation. She is making commendable efforts to enter the workforce in ways consistent with being the primary carer for her children. The mother can provide adequately in every material sense in her current circumstances. As the mother’s evidence revealed, during the course of this year, Y has had a number of changes of school. None of those could fairly enliven criticism of the mother, but there are a couple of realities which emerge from that evidence. They are that, in a short space of the 2012 school year Y has not had an opportunity to settle in any school. Her current school she commenced to attend after the Easter school holidays. That is probably a period of about four, possibly as many as five weeks, but on any view of it is a short time.
There is no reason not to accept the mother’s evidence that Y has settled well at her current school, but the reality is that she has been there a very very short time and that duration militates against regarding a possible change of Y’s school as a potentially significant detrimental aspect of a change of her primary place of residence, if that were in her best interests. It might in the context of schooling be noted, that the school which the father proposes that Y would attend in town L, is not the same school, M School in town X, which she previously attended, about which Y made some complaints.
The mother gave evidence in relation to the reasons for her move in February 2012 which the Court accepts, they being, to have the benefit of family support for a variety of reasons including illness, serious illness, on the part of a close family member.
The mother’s evidence is that she will commence counselling on 22 May 2012. With respect to the mother, and hopefully making all due allowance for the fact that being unrepresented for much of the time in recent months, she may have not have fully appreciated its significance, the reality is that her evidence with respect to her upcoming counselling is vague, and the Court is ultimately entirely unclear as to the nature of that counselling, the qualifications and experience of the counsellor with whom she will have that counselling, its duration or likely duration, and for what it is to occur.
To put the matter in context, the information about this counselling emerges from a document, annexure C, to an affidavit of the mother which was filed and served last month. The affidavit was prepared by, or with the assistance of a solicitor who, at that time, was assisting the mother. Attached to the affidavit, admitted into evidence without objection and given its contents, perhaps not surprisingly so, not the subject of cross-examination of its author, is a document from a Dr K dated 22 February 2012. It is addressed to a Ms O. Whether Ms O is, as the mother appeared to believe, a psychiatrist or not, is not clear from the letter or any other evidence before the Court.
But, the report from Dr K to Ms O states in part:
… [Ms Standish] [the mother] has had a very difficult time of late. She is in need of counselling and soon. Please could you make expiated arrangements to see her as she responds so well to this.
Dr K then recorded under the heading ‘Past History’, five entries all dated 15 February 2012. The three most relevant of which referred to anxiety disorder, depression and domestic violence.
The mother gave evidence, the Court having raised this unchallenged report with her about the difficulties which she was experiencing at that time. The mother’s evidence in relation to that, with respect to her, was less than cogent, logical or convincing. The Court is left quite unclear as to just how things were in the mother’s household at the time of her move to the Mid North Coast. Those uncertainties are not allayed by the mother’s actions once she and Y relocated to the Mid North Coast.
The evidence, in relation to what occurred thereafter, can, as counsel submitted be fairly described as a subterfuge. The subterfuge operated at two levels. The father was not told, the period of eight or nine weeks being not insignificant, and not excused by the father’s prior unannounced move from town X to town L. More significantly, the mother implicated the child Y in the subterfuge. In effect the evidence reveals that it perpetuated in the child’s mind, for whatever reason, and none emerges, that in some way it was necessary or desirable to conceal the move from the father.
Ironically perhaps, the mother’s suggestion that she moved because she was in fear of the father and his family was not only devoid of any circumstantial or other evidentiary support, but a suggestion which Dr S rejected as likely to have been the reality. The factual evidence in relation to that is amply supportive of Dr S’s scepticism. Ultimately, the Court does not know what happened. The significance, insofar as the Court knows any details about the ongoing counselling, is ultimately referable to evidence given by Dr S in cross-examination on day three of the trial.
Dr S, having defended her diagnosis of the mother top of page 8 of her report, as fitting “the criteria for Borderline Personality Disorder with dysphoric mood, substance abuse, impulsive anger, paranoid thoughts, affect instability and possible suicide attempt”, said in her oral evidence on day three of the trial that there was no cure for the mother’s borderline personality disorder. Dr S defended her diagnosis in a way which was logical, credible and, given Dr S’s unchallenged qualifications and experience, able to be accepted.
Dr S proceeded to say that the best approach to the mother’s condition was long term psychotherapy, a number of different types of which Dr S proceeded to describe. Dr S opined that counselling could not hurt but it would not assist unless it was long term and sustained. That is the nexus between the mother’s evidence and the gaps in it so to speak, and the expert opinion evidence. With respect to the mother, it raises questions as to whether she really understands and, if so, accepts the gravity of the issues of her own psychological wellbeing, which the evidence of Dr S reveals.
The mother was, not surprisingly, somewhat dismissive of Dr S’s report and with respect to her, some of the bases upon which she sought to dismiss a number of Dr S’s observations were less than convincing. The mother asserted in her cross-examination that Dr S was generally biased against her and demonstrated that in her report.
The mother’s evidence does reveal that, on the one hand that she recognises the importance of the children’s ongoing relationship with their father. On the other hand, the evidence is unclear as to the extent to which the mother’s abiding issues arising out of her former relationship with the father, impact on her ability to do what she says she would, and which the Court accepts that she would attempt to do.
A number of the matters the mother said in the course of her evidence, in the absence of any circumstantial or other evidentiary support for them, particularly given their antiquity and the matters observed by and reported by Dr S, reinforce the impression that, whilst the mother undoubtedly wishes to rise above her understandable hurt and anger at how she sees the father as having treated her, the Court is unable to positively find that capacity to exist or, to the extent that it does, to be equivalent to the capacity in that regard of the father and his mother.
It is unnecessary, particularly having regard to the nature of them, the extent of them and the frequency of them, to refer to the matters which Dr S referred to in her report in the context of her interviews with the mother, but they are supportive of and consistent with the evidence before this Court and the Court’s concerns arising from it.
It is important to refer to the mother’s evidence with respect to the events of November 2010. In short, the evidence reveals that the mother at no time raised or promoted any allegation that the father had acted inappropriately in any way with the child Y. To put it simply, the mother did the right thing, the responsible thing, taking the child to a general practitioner. Events thereafter spiralled out of her control.
The circumstances are regrettable, but do not reflect adversely upon the mother or the father, both in terms of the medical procedures which occurred or the fracas which occurred involving the adults when the possibility that there was a suggestion that the father had interfered with the child emerged.
It is also important to record that whilst at page 26 of her report, Dr S appeared to have significant regard to those events and to do in a way adverse to the mother’s case, Dr S in her oral evidence, having been told what the evidence revealed, clearly stated that resiling from the critical comments there appeared at paragraph 4, page 26 did not undermine her report or change the thrust of it. That paragraph recorded:
When the mother went to [town X] for [N’s] birthday in November 2010, she took the opportunity to have [Y] examined vaginally when she complained of an inflamed vulva, which was an unnecessary visit to hospital. This was not in the interest of the child’s gynaecological condition but rather to support the mother’s Family Court case and possibly gain evidence to get [N] back. This can be seen as use of the system in abusing the child in the absence of any allegation or disclosure by the child. This was only for retribution against the father.
The mother was cross-examined in relation to the impact upon the child N of the removal from his father. It will be remembered that N since March 2010 has lived with his father continuously. The expert evidence makes clear, as common sense suggests, that for N to be now removed from the care of his father and live with his mother would be a significant change of circumstances for him and one which would be potentially distressing and not automatically successful.
Regrettably, whilst the mother superficially acknowledged that there would be some difficulty associated with N’s relocation, she did not in the Court’s assessment of her evidence, really appreciate, or if she did, did not convey a real and appropriate appreciation of just how significant that would be. She readily acknowledged that counselling for the children would be needed if both were living with her and that she would undertake that. There is, however, a material distinction in the Court’s view between the position of the father and the insightfulness of the father in relation to the enormity of Y moving to be with him compared with the mother’s insights into the enormity of what would be involved in N moving to live with her.
After concluding her evidence, the mother volunteered that two or three weeks previously, that is to say in April, two things occurred. The children made two statements. The child N, in a phone conversation, said, “I am just going to run away” and that he had to be his friend’s protector and “bash the other kids”. The mother asserted that the father was, “chuckling” in the background. It does not seem to be in contest that N said words to the effect, “I am going to run away”. In what context he said that is less than clear. Neither party appears to have taken seriously any suggestion that N would run away. It is a possibility rejected by the experts, and not something which the Court finds to be likely to occur.
The mother then gave evidence that a couple of days later, but she said prior to 27 April 2012 when she swore an affidavit, the child Y said, “If I have to go back to dad, I don’t want to. I think I might take my things” and described some other actions “and run away”. Properly, the mother said to Y, and the Court accepts that she did so in an appropriate and responsible way, that if the Court ordered that Y live with her father she was not to run away, she wouldn’t be running away, and diffused the situation. In cross-examination, the mother agreed with counsel for the father that she regarded what Y had said as a “childish protest”.
Ultimately, the mother’s evidence seems to be that she does not believe that either child would run away. Accepting that, as a litigant in person, it would be unfair to draw inferences about this which would be drawn if the mother was represented, it remains curious that given her own evidence, this was raised. The Court refers to it because it was raised by the mother, and it ought not be thought that it has not been considered.
On balance, as has been hopefully articulated in some detail, the Court accepts that the mother has the children’s best interest at heart. The Court accepts that the mother is making commendable steps to provide greater security for herself and the children but, to use the colloquial, the devil is in the detail and with respect to the mother, there is a somewhat concerning absence of or brevity about what emerged clearly from Dr S’s report as very important issues, and, in a very finely balanced case, they cannot be lightly glossed over or rejected.

the maternal grandfather’s evidence

The maternal grandfather, Mr J, gave evidence. He corrected what the Court accepts was an innocent, but very serious, inaccuracy in the affidavit which he swore in April 2011. The affidavit, at paragraph 24, recorded, prior to the fracas which undoubtedly occurred, the maternal grandfather saying to the father:
“She’s [a reference to the mother] at the hospital. It seems they think [Y] has been interfered with.”
The maternal grandfather was unable to suggest who thought that Y had been interfered with. That is not a criticism of him, but it is significant that he disavowed any suggestion that he was the originator of any allegation that may have been made. It might, as earlier noted, be remembered that only inferentially was there any suggestion that anything had happened, or that, if it had, the father was implicated. But not surprisingly, given the family dynamics, that statement resulted in some unpleasantness. That was then detailed at paragraph 32 of his affidavit, whereby the maternal grandfather recorded that the father grabbed him and held him from behind while his step-father punched him repeatedly, including to his face:
[The father] grabbed me and held me from behind whilst his stepfather, who is much younger than I am, punched me repeatedly, including to my face. I was left with a black eye and cut on my face.
The maternal grandfather clarified, in cross-examination, that paragraph 32 was materially inaccurate. He could not explain how he came to depose to something so inaccurate, but the Court accepts his evidence that so doing was inadvertent and not a deliberate attempt to mislead. The grandfather made clear that far from assaulting him, the father intervened to break up a fight which, the maternal grandfather asserts, was then in progress between himself and the paternal grandfather.

The maternal grandfather is supportive of the mother in her care of the children. The Court accepts his evidence that he and other members of the family would do whatever needed to be done to assist the mother. It would be unfair, given that the grandfather volunteered that the father had broken up a fight, and the absence of any other evidence suggesting it, to find that the maternal grandfather’s attitude to the father’s relationship with the children warrants criticism, and the Court makes no such adverse finding.

expert opinion evidence

The expert opinion evidence before the Court falls into two broad categories. The first relates to the children and their relationships with the parents. The second, which is confined to the evidence of Dr S, relates to the capacity, that is, the psychological or mental capacity, of the parents.
In assessing the expert opinion evidence of Mr W and, to a greater extent, Dr S, the Court is mindful of the decision of the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 and in particular to the judgment of Heydon J, now of the High Court. The effect of the decision which, for practical purposes, and hopefully without doing undue violence to the far more sophisticated terms of his Honour’s judgment than the Court will use, is when assessing expert opinion evidence, is that the Court must be vigilant in relation to the interaction between issues of fact about which experts can be expected to have little or no knowledge, and matters of expertise, which the Court lacks. The Court must be particularly vigilant to ensure that where an expression of expert opinion is dependent upon a factual situation existing, the Court is satisfied, by reference to the evidence before it in relation to such issue or issues, that the facts needed to be found to support the expert opinion have been found on the balance of probabilities.
The Court has been particularly vigilant in this case to ensure that the understandable failure of the mother to challenge the underpinning of a number of expressions of opinion, particularly by Dr S, does not, unfairly to the mother, lead the Court to accept opinions which are dependent upon matters of which Dr S had no personal knowledge or other reliable material supportive of them. For example, in her report, Dr S refers to events involving the mother which apparently happened at a school in far north Queensland. It is clear that in that passage of her report, Dr S formed opinions, or expressed opinions, adverse to the mother in reliance upon what apparently was suggested to her by some person, who has not given evidence, about matters with respect to which there is no evidence before this Court.
Against that background, the Court’s focus in the expert reports is on what each of Mr W and Dr S saw of the children, either on their own or with their parents, what they said, on the one hand, and, in the case of Dr S, the reliability or otherwise of her diagnosis of the mother, to which the Court earlier referred.

mr w’s report

The report of Mr W is significant in many respects, but the most significant portions of his report are those which follow from the heading, Children’s Issues, at page 8. The following paragraphs of Mr W’s report are of particular importance. That is so because they are based upon observation. They do not depend upon the reliability of facts or circumstances recounted to Mr W, of which he could have had no personal knowledge. The paragraphs record as follows:
40.Observation of the behaviours demonstrated by both children during the day suggested that [Y] probably possesses a primary attachment to her mother. It was not apparent whether [N] had a differential emotional attachment to either parent. It should be noted that both children demonstrated good relationships with each of their parents.
41.Formal observation of [Y]/ [N] with their father demonstrated positive, warm, relaxed and happy interactions between them. [The father] got down on the floor to engage in the children’s play activities, and both children responded very positively to this. These interactions were characterised by much smiling and chatting.
42.[The paternal grandmother] was also brought into the child playroom, and both children greeted her warmly. The demeanours of both children continued to be positive, relaxed, chatty, excited and loud. It was noted that nothing about [Y’s] demeanour suggested any difficulties in her relationship with her paternal grandmother. Indeed, [Y] spent more time interacting directly with her “Nanny” than with her father, who was primarily engaged in [N’s] play activities during this period.
…
45.[N] moved easily and out of close proximity to his mother, sitting in her lap and accepting cuddles from her on two occasions.
The contents of paragraphs recording what Y said to Mr W are important, and they commence at about paragraph 46 and occupy the whole of pages 10 and 11 of Mr W’s report. They proceed to be recorded at page 12 and down to paragraph 64 on page 13 of the report. Broadly speaking, they can be categorised as overwhelmingly negative about the father, and overwhelmingly positive about the mother. N, then, at paragraph 66 on page 13, was recorded as having some conversations with Mr W. Mr W then, under the heading of “Evaluation”, identified a number of themes which were then relevant.
Some of these, it is not in doubt, have since ceased to be. The nature of the mother’s mental health remains an issue. It is dealt with by Dr S, and as noted earlier, the evidence of the mother leaves some uncertainty about aspects of that. There is no question that the evidence does not reveal that Y was inappropriately touched, abused, interfered with, by anyone, much less the father. To their credit, neither party has sought to do other than clarify the record in relation to that topic. Whilst the mother did not pursue the issue of the father’s drug and alcohol consumption at trial, her failure to do so does not in anyway diminish the force of her case. There is simply no evidence that either party has, since March 2010, inappropriately utilised or abused drugs or alcohol.
There is no evidence whatever the father’s propensity for domestic violence prior to separation, that there has been, since March 2010, any domestic violence perpetrated by him, or that there is likely to be in the future. The probabilities are that the mix of the personalities of the parties in the lead-up to their separation impacted, as they undoubtedly did, and that substance use or abuse, produced a volatile mix in which the spectre of domestic violence, if not actually, was always potentially present. The probabilities are that, as Dr S suggested, in the period prior to the parties’ separation, the mother was subjected to violence, or the threats of violence, by the father, or otherwise apprehended that she was at some risk. The evidence fails to reveal any rational basis since separation for any such concerns, either by the mother or the Court when considering section 60CC of the Act.
The second theme identified by Mr W is a continuing theme, and it is further developed in and supported by the evidence of Dr S. It is significant that each of these professionals, approaching the issue from different disciplines at different points in time, iterate and reiterate so many common observations of the children of these parties.
In paragraph 72, Mr W expressed:
72. A second theme concerns the children’s views, and their relationships with their father, especially in relation to [Y]. It is pretty clear that [the mother] has discussed far too much adult-information with [Y], and/or allowed her to be exposed to adult conversations where such information has been discussed. [Y] identified her mother as the source of much of what she knows about the adult issues, and [the mother] also conceded she had told [Y] too much about such issues, although she justified doing so on the grounds that she felt it would be disrespectful not to. There are several problems with [Y’s] inappropriate exposure to such information.
In the course of his oral evidence, Mr W referred to what he was there describing, or the topic he was there engaging with, as involving “contamination” of Y’s evidence. The evidence before the Court is consistent with the concerns Mr W there recorded. That evidence is in part supported by the evidence of the mother, or inferences drawn from it, and, to a greater degree, the evidence of Dr S, as it emerges from her report.
The thrust of Mr W’s responses to cross-examination, which need not be referred to in detail, was that the evidence of both children was “contaminated, or heavily contaminated”. The impacts of that contamination were explained in terms of the children’s statements, and Y’s very strong alliance with the mother. Mr W said, in oral evidence, a change of Y’s place of residence from the mother to the father, would “traumatise” the child, but, in Mr W’s opinion such trauma would, in time, resolve itself.
Mr W reiterated in his oral evidence what he regarded as the extraordinary divide between what Y said about the father, and how she was when observed with him. This, he suggested, was only explicable by Y having gained from the mother versions of events adverse to the father about which she clearly had no personal knowledge. Mr W expressed the opinion that to remove N from his father would have a very profound effect upon N.
The balance of Mr W’s report, in relation to this topic, at paragraphs 73, 74, 75, and 76 is consistent with, and supportive of the evidence before the Court, and provides a factual underpinning for Mr W’s statements.
As noted earlier, the themes identified and explained by Mr W resonate in the evidence of Dr S, to which reference will shortly be made. The likely implications of the matters about which Mr W expressed concern, and which the Court accepts, are articulated at paragraphs 77 and 78 of his report which recorded:
77. This discrepancy between [Y’s] comments, and her direct experience/s of her father, represents the early stages of an alienation process that could, if allowed to continue on its current trajectory, ultimately lead to a complete breakdown of [Y’s] relationship with her father. Although I do not consider such an extreme outcome likely, it is certainly possible because of the steps she has taken down that continuum.
78. Furthermore, when [Y] was observed interacting with her father during this event (especially as she relaxed towards the end of this assessment process), her behaviour indicated a relationship with her father that was actually far more positive than her verbal comments would suggest. This discrepancy between her comments and behaviour strongly suggests that her verbal comments may be unreliable, probably as a result of contamination by her mother.
Mr W sounded a cautionary note, in paragraph 79, and the Court is mindful of what Mr W there says, namely:
79. This is not to say however, that there may not be some validity in [Y’s] comments about her father’s past behaviour. It is entirely possible that [the father] may have engaged in inappropriate or abusive behaviour towards [the mother], and if this is the case, this should not be minimised or dismissed. But nor should it be exaggerated and magnified, or shared with children. At the present time, the competing allegations concerning each parent remain largely contested, and it is possible that at least some of them may need to be determined by the Court on the basis of the available evidence.
The difficulty the Court has, and this, again, picks up the topic raised earlier in these reasons, is that, in the absence of the father being cross-examined in a way that would lead to findings of fact to that effect being made, the Court could not, and did not, cross-examine the father with respect to the matters to which Mr W there refers. It ought not be thought that because the Court makes no findings of fact about the matters there referred to that it has minimised or dismissed them, but as a Court acting on evidence, in adversarial proceedings, it must approach its task in accordance with long standing authority, and the traditions of the common law of England.
The circumstantial evidence does not reveal, save for the fracas in November 2010, which does not reflect well on anybody but does not ultimately reflect adversely on the father, that there is any evidence of domestic violence or its likelihood in the post-March 2010 period, nor any rational basis for thinking that there will be in the future. Why that is so is largely because the parties do not live together now, and each has, in relation to the demons which the evidence reveals were features of their lives prior to March 2010, made effective and enduring attempts to change and overcome.
As noted earlier, Mr W, at paragraph 80, referred to the “manipulation” of the child N:
80.Concern also exists about [N’s] apparent desire to live with his mother. At four years of age children do not typically possess or express exclusive preferences to live with one parent to the exclusion of the other, because children at that age do not ‘frame’ such issues in this way. Rather, most four years olds (ie at least those who have not been abused) typically want to live with both parents concurrently. [N’s] reasoning for wanting to live with his mother (and [Y]) demonstrated a worrying similarity to the reasoning expressed by [Y], such as when he complained that his father and grandmother “… don’t let me do anything”. I find it incredulous that such a comment originated with a four year old, who otherwise appears to enjoy a very warm and loving relationship with his father. Whether through enthusiasm or otherwise, the most likely explanation is that [N’s] comments probably originated with either with [sic] [the mother] or with [Y].
The Court does not find, in relation to paragraph 81 of Mr W’s report, that the mother has consciously done what he infers that she may have done. Mr W there recorded:
81.However, even if it is established that [the mother] has coached or manipulated the children’s views, it remains the case that [Y] in particular is now strongly identified with her mother, and varying her current living arrangements would be extremely distressing and unsettling for her. [The father’s] position appears to be that this short-term negative impact will be offset by the longer-term benefits that would accrue from both children living primarily with him.
The Court is not satisfied that the mother has consciously coached or manipulated the children’s views, although they are clearly referrable to her own views. The difficulty with that benign finding, however, is that implicit in it is the reality that the mother must continue to genuinely believe the things which the children are stating, or have stated to Mr W, and again stated to Dr S. To put it crudely, one can’t have it both ways. If the manipulation is not conscious or intentional, then it must be the product of a deep-seated and unconscious abiding belief in the matters which are conveyed to the children. Neither finding is helpful to the mother’s case.
Under the heading “Conclusions and Recommendations”, Mr W suggested what might usefully follow, and that largely led to Dr S’s report. Importantly, Mr W, with his usual perceptiveness, framed the future determination of the proceedings in these terms:
87.… since [Y] is now so strongly aligned with her mother, any change in her primary living arrangements would be very emotionally traumatic for her. For this reason, the threshold [the father] will need to satisfy to demonstrate that the benefits of such a change would outweigh the costs, is likely to be very considerable indeed.
With respect to Mr W, and without criticising him, the Court perceives the legal approach, as it were, pursuant to Part VII, and section 60CC of the Act, particularly to be somewhat different, and that the formulation Mr W has there advanced, though logically irrefutable, and no doubt soundly based in terms of Mr W’s unchallenged expertise, does possibly impose an onus on the father somewhat greater than, properly construed, section 60CC might impose. Nevertheless, and at the risk of erring in law, the Court will largely approach section 60CC in the light of the caveat which Mr W has there expressed.

dr s’s report

As noted earlier, Dr S’s report, for present purposes, falls into two topic areas. The first is the psychological health of the parties. As also noted earlier, the Court, without suggesting that Dr S’s conclusions were necessarily erroneous or unsupported, particularly having regard to the way the trial proceeded, and the difficulties arising from the mother being unrepresented, proposes placing weight on those parts of Dr S’s report which in no way are dependent upon disputed facts or circumstances of which she could have no knowledge or other evidentiary foundation. That is to say, those expressions of opinion which are based upon Dr S’s observations of the parties and/or the children are those to which the Court can and will give weight. Those which are not so supported will not be afforded weight.
In terms of capacity of the parents, as noted earlier, at the top of page 8 of her report, Dr S advanced a diagnosis [see par 87 above]. Dr S explained that adequately in cross-examination. Nothing raised with her provides a rational basis for rejecting the diagnosis which Dr S advanced. As also noted earlier, in the course of cross-examination about that diagnosis, Dr S gave the evidence the Court recorded about the mother’s long-term needs for psychotherapy. The Court made findings about its concerns in relation to the evidence about just what that is going to be.
At page 12 of her report, Dr S recorded that the father had insight into the fact that his emotional understanding was naïve, but that there was no reason to think that he was excessively paranoid, and there were no psychotic features. Dr S proceeded to say:
… I could not make a psychiatric diagnosis based on this assessment, except possible past drug abuse. …
It is clear, by reference to some brief cross-examination of Dr S, that Dr S did not suggest that the father had ongoing needs for psychological intervention.
Dr S recorded, at page 30, in relation to the mother, having referred very extensively to interviews with the mother, and observations of her:
... In summary, the mother is a somewhat immature woman with a damaged personality resulting from childhood trauma (witnessed DV and maternal grandmother’s suicide attempt). Her Depression and cannabis abuse made her incapable of parenting appropriately, however, the father was able to take over the child related activities. Although her Depression is now fully treated and she has stopped using cannabis in the context of her separation and Family Court case, there are serious concerns about her ability to parent both the children at the same time. Neither does she have the financial resources to get appropriate psychological care for the children which they will need when they are reunited. Her impulsive anger and other emotional unpredictability have affected the attachment to both the children, where they were somewhat insecure in their interactions with her and were vigilant about checking her affect as well. …
The matters which there appear are able to be accepted, save to say, as noted earlier, that the reference to the mother’s financial resources, in terms of the issue there discussed, is not a matter upon which the Court relies. The Court assumes that the mother, although there is no evidence of it, would have the capacity to secure the psychological care to which Dr S referred. The point of significance is that recorded earlier, namely that the evidence is unsatisfactory as to just what will happen in that regard, both with respect to counselling for the children, and to address the mother’s need, which Dr S identified and explained.

At page 31 Dr S recorded a number of matters which are supportive of the father’s case, and those matters can be relied upon:
… I got the impression that the father was child-focussed parent who was able to get the children working as a team and they both appeared to be securely attached to him. My impression was that the father had more to offer the children as a parent and, although he might need some guidance as to their psychological problems when they are reunited, he has the support of his extended family and the financial resources to get them the help they need. …
The other parts of Dr S’s report which is similarly important are those which refer to the children. They commence at page 20, by and large, of Dr S’s report. For present purposes the focus is on the heading “The Views of the Children” at page 21 and following. Dr S referred there and elsewhere to statements by the children, which are consistent with the sorts of things that emerged during Mr W’s investigations and found articulation in his report.
As with Mr W, Dr S found a disconnect between what the children said and how they related to each of the parents. Dr S explained the four attachments, which are known in the literature and to experts in her field. They are in decreasing order of desirability: secure, insecure, anxious and avoidant. For reasons which Dr S articulated in some detail and which have not been successfully challenged, Dr S recorded, at pages 22-23 under the heading “Attachments”, the following:
[The child Y] and the mother:
[Y] has always lived with her mother except for a few months in the first half of 2010 when the mother moved to [a nearby town] and [Y] stayed with the father at [town B]. She still had regular contact with her mother during this time until August 2010 when the father took her to [town X] to live for about four months. Since November 2010, [Y] has lived exclusively with the mother without [N] at [far north Queensland]. During the assessment, [Y] sat close to her mother, starting off with full body contact next to her mother on the floor. At one stage, they sat with their heads together and the mother kissed [Y’s] hair. On one occasion, [Y] looked at me to check my affect, monitoring my mood as if she regularly did that with her mother. This indicated that she may have taken responsibility for her mother’s affect and be helping to modulate that, given her mother’s affect instability.
There was evident enmeshment where the child’s mood changes in concert with the mother’s, such as when they both cry together on the nights that [N] rings on the telephone, missing him terribly. The responsibility for the mother’s affect state is a burden to a child of only eight. [Y] was meeting the mother’s emotional needs rather than the other way round.
The attachment was anxious and insecure.
The mother and [the child N]:
Prior to assessment, [N] had not had face to face contact with the mother for 10 months, even though there was some contact at the motel prior to the assessment day on and off for 24 hours. [N] had been living with the father and paternal grandmother and prior to that, with the father at [town B] with contact with the mother and for the first three years of his life, with the mother and father.
During the assessment, [N] played on the floor predominantly with [Y]. [N] interacted directly with [Y] appropriately but frequently ignored the mother’s comments. He refused to take a spaceship that the mother offered him. He refused to take a motor that the mother tried to give him. [N] became interested in the treasure chest but the mother failed to become engaged in his play.
The attachment was insecure and avoidant.
The father and [the child Y]:
The father has lived with [Y] throughout her life except for two brief periods: one when she was around 18 months old, when her mother took her to [northern New South Wales] and again in November 2010, when her mother returned to [far north Queensland] with her. [Y] hadn’t seen her father for 10 months up to the day before the assessment. [Y] and the father played with [N], the father becoming involved in their game, containing [N’s] whingeing and sharing a memory with [Y] about when they went on a boat together before [N] was born. The father had both children giggling when he shot the cannon and all three participated as a group, enjoying a game about a shark.
The attachment was secure.
The father and [the child N]:
[N] has always lived with the father and since August 2010, he’s also lived with the paternal grandmother and step-paternal grandfather on a farm outside [town X]. At times, [N] whinged to the father, saying that [Y] was mean when she held what he wanted. The attachment between the father and [N] was secure.
[The children N and Y]:
Although the siblings had not seen each other for 10 months, they played very well together with [Y] bossing [N] around and organising him at times and [N] showing her things and including her in his game. The attachment was secure.
Dr S recorded, as noted above, the attachment between Y and her mother as anxious and insecure, the attachment between N and the mother as insecure and avoidant, the attachment between the father and Y as secure and the attachment between the father and N as secure. The attachment of the children to each other, which no one disputes, was secure. To the extent that Dr S’s ultimate recommendation might have been thought to be referrable to the matters referred to at page 23 under the heading “The Mother”, her cross-examination reveals that not to be so. Dr S readily volunteering that it was “really, really fantastic” that the mother has relocated to the Mid North Coast of New South Wales.
It is clear from Dr S’s evidence that she did not materially rely upon the matter there stated, which now does not apply, in reaching her ultimate conclusion. The crux of Mr W’s report finds further consideration under the heading “If The Children Resided With The Mother” at page 24 of Dr S’s report, which recorded:
In this situation [N] would miss the father and the paternal grandparents. He hasn’t lived with the mother for 10 months at the time of the assessment and nor has he had to share any of his toys with his siblings. Given the change for [N], it is likely that his behaviour would probably regress for a while with the possible re-emergence of less mature behaviour such as acting out and wetting the bed, until the mother was able to contain the situation. Given her own affect instability, it’s questionable as to her ability to contain the children’s behaviour.
My impression was that [Y] was somewhat parentified, protective of her brother, which is indicative of relative neglect by a parent. In this case it was possibly due to the mother’s laziness or intoxication due to cannabis use while the children were younger. [Y] would secure in her continued attendance at [her] School but [N] would have to adjust to a new school with a new group of friends, which would cause some temporary anxiety. Given that he is a cheerful, confident child, it’s likely that this would only unsettle him for a few weeks. He is due to start at school at the beginning of 2012 in Year K.
In oral evidence, Dr S explained that there would be a “double stress” on the mother if N were to live with her, for reasons which Dr S explained, and which, apart from the fact that they were articulated by an expert of her skill and experience, accord with commonsense.
Under the heading “The Children To Reside With The Father”, Dr S also addressed the issue which the lay evidence reveals and with which Mr W engaged carefully in his report and oral evidence. That is the enormity of the task associated with Y successfully relocating to live with the father. Although not expressed in the same terms as Mr W did in paragraph 87 of his report, to which the Court earlier referred, it is palpably evident that Dr S was acutely concerned with the realities of Y moving to live with her father, given the nature of her attachment to her mother, and the impact on her of doing so, and it is clear that Dr S ultimately concluded that, albeit not expressed in the same terms as Mr W did, that the benefits outweighed the detriments in making such a move.
Nothing referred to in the cross-examination of Dr S provides any basis, either in terms of expertise, accuracy of recording or observation, or impermissible or erroneous reliance upon, or assumptions about factual matters for not affording very substantial weight to Dr S’s expert-opinion evidence.
Indeed, Dr S’s evidence is underpinned to a substantial extent by the lay evidence the Court has heard. It is consistent with and can, in a sense, be seen as a progression from things which were observed and the subject of opinion evidence by Mr W. Dr S referred at page 28 to the reality, which the Court has earlier referred to, that the mother has never managed both children alone unassisted for long periods.
Although there is no reason to suggest that the mother could not cope, the fact remains that she has not done this. Although the mother might not see it this way, in March 2010, when the mother clearly could not cope with looking after the children, to her credit, she placed them with the father, who, the evidence does not suggest, did other than cope and provide for them capably for a period of about eight months.
As noted earlier, the proceedings are determined by reference to the provisions of section 60CC of the Act, which mandates that the children’s best interests are paramount, and delineates how best interests are determined. The case is not about the parents, except to the extent that section 60CC of the Act makes it about the parents. It is about their capacities, their attitudes and matters of that kind. But it is not a question of who is the more deserving. As the Court has noted earlier and, though, hopefully a level playing field has been provided, the Court does not pretend that the trial has been a fair or even contest.
That is not to say, and it is important to record, that is not to in any way suggest that counsel for the ICL or for the father has in any way sought to take advantage of the inequality of the contest. Indeed, with respect particularly to counsel for the father, whilst not in any way failing to discharge his duties to his client, it could fairly be said that counsel for the father could not have been more forbearing and sensitive to the position of the mother in his conduct of the case than he has, but it is not a matter of which parent is more deserving.
When best interests are determined, feelings of sympathy for the parent who must be disadvantaged, or to call a spade a spade, be the loser, cannot alter what a consideration of section 60CC of the Act determines are the children’s interests. The matters to which the Court has referred at considerable length reflect the findings of fact which the Court has made in relation to matters relevant to section 60CC, and hopefully reveal adequately why those findings of fact have been made.

section 60CC factors

Turning then, and without restating the evidence, it being unnecessary to do so for this purpose, to the provisions of section 60CC of the Act, the Court records the following.
Pursuant to section 60CC(2)(a), the children will have a meaningful relationship with both parents that will be beneficial to them. It will happen however the case is decided.
There is currently no need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2)(b) speaks of a present need.
Pursuant to section 60CC(3)(a), the children’s views are significant, but not in the way that they tend to be in other cases. In this case, the children’s views are significant in the two ways the expert evidence reveals. Firstly, the disconnect between what the children say about each parent, good and bad, and their observed attachments to each of the parents are significant. Secondly, and without wishing to be unduly critical of the mother, and without suggesting that it is conscious or deliberate, the evidence of Mr W reinforced by the evidence of Dr S with respect to “contamination” of the children’s views and the potential long-term adverse consequences of it are matters which render section 60CC(3)(a) a matter of significant and, indeed, of major significance in the determination of the children’s best interests. There is no evidence to suggest that similar “contamination” would occur were the children to primarily reside with the father. In the paragraphs of Mr W’s report referred to earlier, Mr W cogently and with the undoubted authority of his expertise, which was sensibly not challenged, explained in detail the risks which flow from the contamination. This is a powerful factor in the overall determination of best interests in this case.
Section 60CC(3)(b) is a factor and one of considerable significance. Whilst the children love both parents, they get on well with both parents and would be distressed if separated in the case of Y from her mother, and in the case of N from the father. The attachments, as observed by Dr S, are matters of considerable significance. There is, it seems clear on the expert evidence, albeit less than entirely clear how it operates, a probable nexus between the observed attachments of the children with each parent and the matters to which Dr S and Mr W to a greater extent referred in terms of the perceptions the children have been allowed to develop and maintain with respect to the parents.
Section 60CC(3)(c) can be briefly disposed of. Historically, as both parties fairly recognised, each party has revealed less than optimal willingness and ability to facilitate, and encourage a close and continuing relationship of the children with the other parent. Objectively, whilst the evidence suggests that the father’s capacity may be somewhat greater than that of the mother, the distinction is not such as would lead the Court to place substantial reliance upon that factor.
Section 60CC(3)(d) is, as Mr W suggested 13 months ago, really the crux of the case. There is no question that, in the short-term, removing either child from the care of his or her current primary custodian will be devastating. The evidence suggests that the children would ultimately cope with a move either way. With respect to the mother, the evidence suggests that the father has a somewhat greater appreciation of, and insight into, the magnitude and complexity of this issue than does she, and that his plans, in terms of coping with that if it materialises, are preferable to those of the mother. That is a factor of some, but not great significance, but the Court, on the evidence before it, must attach some weight to that topic.
Pursuant to section 60CC(3)(e), practical difficulty in expense is, with respect to the parties and through no fault of theirs, the usual difficulty. The difficulty is that of distance and the fact that, with few exceptions, the roads between any two towns in the state of New South Wales invariably twist and turn and zigzag rather than follow anything like a straight line. Each party reasonably will continue to reside where each currently lives. Their evidence in relation to that was compelling. It would be quite unrealistic and unreasonable to criticise either party for not being willing to relocate. Their evidence about their current attachments, support networks, ties, provides abundant justification for neither party being willing to move, and it could not fairly be suggested that the refusal to move, in any way, reveals any lack of concern for the best interests of the children. In a perfect world, perhaps things would be different, but in the real world, it is entirely reasonable that the mother continue her re-establishment of her life amongst her family on the Mid North Coast, whilst the father continue his amongst his family and support network in the western plains region. That factor assumes no significance.
Section 60CC(3)(f) is a matter of significance within a small, but vitally important, ambit. The children will be adequately looked after, in every physical and material sense, wherever they reside. The question is the capacity to provide for the children’s emotional needs. Their intellectual needs will be adequately provided for wherever they live. It is their emotional needs which assume significance, and it is in this context that the evidence to which the Court has extensively referred, particularly of Dr S and Mr W, and to the mother’s own evidence, which compels the Court, painful though it is, to conclude that there is a material distinction between the capacity of the father to provide for the children’s emotional needs compared with that of the mother. It is a matter of significance.
Section 60CC(3)(g), the maturity, sex, lifestyle and background, is not relevant, nor are issues of Aboriginality or ethnicity, as per section 60CC(3)(h).
Section 60CC(3)(i), the attitude to the child, and to the responsibilities of parenthood, has largely been referred to. Objectively, at the conscious level, the attitudes of each parent are commendable. Historically, as both parents recognised their attitudes to duties of responsibilities of parenthood have been, as with most of humanity when scrutinised, less than optimal. This factor does not assume significance, nor do the provisions of section 60CC(3)(j), any family violence involving the child or a member of the child’s family, or 60CC(3)(k), any family violence order that applies to the child or a member of the child’s family.
Section 60CC(3)(l), whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, does not really assume significance except to the extent that the mother’s evidence on day three of the trial, to which the Court has earlier referred, might suggest that it could be.

conclusion

The Court does not accept, as indeed the parties do not accept, that there is any prospect that the orders will result in further proceedings by virtue of either child taking the law into his or her own hands. Parties have an obligation to explain to their children, if asked, that the Court’s orders are the Court’s orders. The Court has made the decision, as is its function, and it is the duty of the parents, both in terms of the Court’s orders in this case, and in the broader sense of the children learning, as part of their socialisation, that the laws of the land bind us all, and that the orders of Courts be complied with.
Objectively, the prospect of further proceedings really comes down to whether the father and the mother are true to their word, or, as the mother has suggested, although she did not put it in these terms, have tried to pull the wool over the Court’s eyes, and have the Court accept that their motivation is not really what they have suggested in evidence.
The short response to that is that the father ought not think, given the ages of these children, that the Court’s decision is, in effect, set in stone. Indeed, many a parent who has been successful in parenting proceedings has found that success short-lived by adopting a high-handed attitude to the other parent, or failing to optimise the relationship between the children and that parent. Were the father in this case to think otherwise, he may well be setting the stage for a very rude reappraisal of matters.
The decision in this case is difficult, and sad. The Court has very considerable sympathy for the mother. As the Court noted at the outset, the Court does not know, and will never know, what might have been had the mother been competently represented. Things may have been no different, one cannot tell. What the Court can say is that it has great sympathy for the mother in this case, but equally, the law is clear. The Court has to determine the case on the evidence before it, and it cannot allow sympathy to divert it from the outcome which the law reveals.

Reference was made, early in these reasons, to the mother’s request for more than half school holidays. The Court has considered that issue. Ultimately, it is disinclined to make orders in those terms. There are a number of reasons why that is so. The first, and most obvious, is that there is not an equivalence between quantity and quality of time spent by children with a parent.
The second is that common sense and the ordinary experience of life suggest that is unrealistic in the case of children of school age to ignore the reality that, when school ends for the term, that is the end of any dealings between children and their peers until the resumption of school. Balancing, on the one hand, the children’s need to be with their mother as much as possible, with the reality that their ongoing development is enhanced by contact with peers militates against other than equal sharing of holidays.
The other aspect of that issue is that there are probably about 12 weeks a year in total in school holidays in State schools. The mother will have six weeks in any event. The longest period between each of those periods would be probably about 10 weeks, punctuated, hopefully, by periods of time in between. It would, when properly analysed, be a matter of preferring form over substance to accede to the mother’s request. It would not necessarily, were the children to miss out on school holiday activities with their peers, be beneficial for the mother for that order to be made. Whilst the Court understands the mother’s desire to have as much time as she possibly can with the children, the Court urges her to accept that qualitative rather than quantitative considerations are the more significant, and that an arrangement of the kind the Court will order is likely to be more enduringly workable and beneficial for the children than the superficially more attractive alternative.
For those necessarily lengthy, and less than entirely cogently articulated reasons, the Court’s orders are, as contained in the engrossed orders which contain the initial deletion to which the Court has referred.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 10 May 2012.

Associate:

Date: 28.05.2012

[2012] FamCA 443

Key Legal Topics

Areas of Law

Family Law