Peter & Elspeth [2009] FamCA 551 (25 June 2009)

Peter & Elspeth [2009] FamCA 551 (25 June 2009)

[2009] FamCA 551

FAMILY LAW - CHILDREN - With whom a child spends time - time with non-resident parent - parental responsibility - application to discharge orders - absence of meaningful relationship with father - no prospect of establishing meaningful relationship - children and mother Exclusive Brethren - mother's health - best interests of children

Family Law Act 1975 (Cth)

McCall & Clark [2009] FamCAFC 92

Malak & Mairie [2009] FamCA 268

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

(1) That all extant parenting orders and injunctions which relate to the children of the marriage J born ... January 1994 and C born ... December 1998 ("the children") be discharged.

(2) That the mother have sole parental responsibility for the children.

(3) That the children live with the mother.

(4) That the mother be restrained:

• (a) from discussing the father's leaving of the Exclusive Brethren faith or the father's lifestyle; and
• (b) denigrating the father

in the presence or hearing of the children and from allowing any other person to do so in their presence or hearing.

(5) That the mother forthwith authorise the principal of O School to provide to the father, at his expense (if any) a copy of:

• (a) each school report for J and C;
• (b) an order form for each school photo of J and C; and
• (c) newsletters or other publications routinely provided to parents

and the father be at liberty to discuss the children's educational progress with the principal provided that:

(i) if the father wishes to attend the school to do so, he makes an appointment prior to his attendance; and

(ii) such appointment is made for a time at which J, C, the mother or a sibling of J and C, are not likely to be on the school premises.

(6) That the Independent Children's Lawyer serve a sealed copy of these orders on the principal of O School within 7 days of receipt of such sealed copy from the Registry.

(7) That the mother advise the father in writing of any serious illness or injury experienced by J or C, such notice to be given as soon as practicable after such illness is diagnosed or injury suffered.

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

(9) That the application filed by the father on 18 June 2007 and the response filed by the mother on 13 July 2007 be otherwise dismissed.

(10) That the contravention applications filed by the father on 31 May 2007 and 15 June 2007 be listed at 10.00am on 20 July 2009 for the making of submissions directed to their disposition and:

• (a) the Independent Children's Lawyer have leave to make a submission, if he considers it in the best interests of the children to do so; and

• (b) the parties may appear by telephone.

(11) Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel and solicitors appearing as counsel.

That no orders provide for the father to spend time or communicate with the children.

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

1. One could summarise this case in this way. It concerns the living arrangements and parental responsibility for J and C, the youngest of the parties' eight children. J is fifteen and C is ten. The children have been the subject of extensive litigation since their parents separated in February 2003, when J was nine and C four.
2. Orders made in December 2006 by Benjamin J provided for equal shared parental responsibility and for J and C to live with their mother and have frequent and regular time with their father. When that did not occur, the father brought contravention proceedings against the mother, and against another of the parties' adult sons and the husband of one their adult daughters who, he claimed, had aided and abetted the alleged contravention. Benjamin J found the contravention proven against all three respondents. In due course, all convictions, save that of the mother, were quashed. While the Full Court upheld the trial judge's decision to find the contravention proven against the mother, it found the sentence imposed by Benjamin J (a sentence of imprisonment, suspended on terms) not open. By the time the Full Court re-exercised the sentencing discretion, the wife was mortally ill, having been diagnosed with a recurrence of breast cancer and extensive secondaries in May 2007. The Full Court required the mother to pay costs but imposed no other sanction.
3. For a short period in 2007 the children J and C did see their father, an arrangement which broke down in late April 2007. The father filed further contravention applications in May and June 2007. In June 2007 the father filed an application in which he sought that the children move immediately to live with him and spend time with their mother. In response, the mother sought sole parental responsibility for the children and the discharge of all orders requiring them to spend time or communicate with their father. It is those applications which the court is asked to determine. Save for a short period at a contact centre in January 2008, the children have not spent time with their father since late April 2007.
4. What is absent from that account is a crucial factor. For the whole of their lives together, the parties and the eight children of their marriage were members of the Exclusive Brethren faith. The father's decision to leave the faith precipitated the parties' separation in 2003 and ultimate divorce. The mother and all of the children remain members of the faith. It is tempting to qualify their membership or adherence by using adjectives such as devout, staunch or observant but the evidence satisfies me that those words would be seen as superfluous by the mother, the lay witnesses on whom she relied and, indeed, by the children.

The law provides that you are entitled to know your father and spend time with him and he with you. I have determined that there is a benefit to each of you in having a meaningful relationship with him. I expect that the adults around you will obey these orders and that they will render to Caesar what is Caesar's. You may have been told these orders only apply until you are 16. That is not the case. You are subject to the supervision of this court until you are 18.

I cannot say what the children made of these admonitions or of hearing Benjamin J speak of the potential for imprisonment and "hefty fines" to be imposed on adult family members if they did not spend time with their father.

1. The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s. 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC(2) which, in some instances, are further elaborated in s.60CC(3) and (4).
2. There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA(1)). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence (s.61DA(2)) and it may be rebutted if the evidence establishes that equal shared parental responsibility would not be in the child's best interests (s.61DA(4)).

(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ("the present relationship approach");

(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ("the presumption approach"); and

(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents ("the prospective approach").

119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.

120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

121. In coming to our conclusions we accept as appropriate the interpretation of "meaningful relationship" set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.

122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.

1. Section 60B of the Act sets out the objects of Part VII (being the part of the Act which deals with children) and the principles underling Part VII, as follows:

(1) The objects of this Part are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary consideration when determining where a child's bests interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility will not apply, those circumstances relating to findings about child abuse and family violence. The principles which underlie the objects are not unqualified, but subject to a child's best interests.

1. To avoid confusion, the first names of all of the parties' children will be used, rather than their surnames. Passages quoted from affidavits or other documents are recorded as written, without reference to grammatical or spelling errors, or correction.

1. The husband is fifty-two. He came into the Exclusive Brethren community when he was about five, with his mother. His father never came into fellowship and he grew up without a father. He remained part of the community for over 40 years, leaving in early 2003. After separation, the father changed his surname; the mother and the children of the marriage all retain the father's original surname.
2. The husband and his wife live in P, which is about an hour and a half from L. They married in March 2007. He is self employed and normally works from about 8:30am until 4:30pm or 5:00pm on weekdays. Asked about his income, he said he could not remember and that his books were all with his accountant; he said he knew he had an $8,000 tax bill. A child support agreement between the parties lapsed in late 2008; the father said he was not aware of that and had received no correspondence from the Child Support Agency.
3. The father's new wife Ms M works two and a half days a week as a technician.
4. The parties' older children are W (30), M (29), G (24), T (23), ME (20) and L (18).
5. W is married to Mr A, with whom she has a daughter, who is seven. M is married to Mr S; they have three children aged six, four and two. G, too, is married.
6. The mother is fifty and lives in L with T, ME, L, J and C. In July 2008 W and her husband and daughter relocated to L from D to assist her. W and her husband are partners with Mr A's brother and sister-in-law in a business and Mr A presently travels between L and D for business each day. The trip takes less than one hour however Mr A hopes to extend the business to create sufficient work in L to enable him to work there for at least part of the week.
7. At the time of the trial W and Mr A were selling their home in D and planned to purchase a house in N, which is the suburb in which the mother and children live. Until then, they will remain living with the mother in the large family home and W, and to a lesser extent, Mr A, have taken over significant responsibility for the practical care of J and C, as well as their emotional care. The mother now has very little involvement in the business of which she is the proprietor and in which ME and T work.

1. The father relied on an affidavit sworn by him on 22 December 2008. Prior to him giving evidence, I summarised for him the various affidavits sworn by him and filed earlier in the proceedings, including those filed in support of the two contravention applications and the application for interim orders. He confirmed that he did not seek to rely on that material but would be making reference to the December 2006 decision of Benjamin J and evidence referred to in it. In the summary of argument tendered on 29 January 2009 he listed the documents on which he relied. Several were removed from the list after further discussion; these were an affidavit filed by the mother on 31 January 2007 and documents recorded as "family report interviews" on 4 and 5 August 2008, the latter a reference to interviews with Ms SN as part of the process which culminated in her family report of 13 August 2008.
2. The father is married to Ms M. He often spoke of them as an entity and of, for example, their joint capacity to provide for the children's needs. He filed no affidavit sworn by her and did not seek to call her.
3. The mother relied on an affidavit affirmed by her on 22 December, 2008, together with affidavits of the parties' daughter, W, and her husband, Mr A, both affirmed on 23 December 2008.
4. A body of expert medical evidence was before the court. Dr B swore an affidavit on 28 September 2007; Dr RF swore an affidavit on 1 October 2007. Reports from Dr W dated 3 April 2008, 5 May 2008 and 31 October 2008 were adduced into evidence. The most recent expert report was that of Dr W, the mother's oncologist, dated 31 October 2008.
5. At the commencement of the trial on 27 January 2009, senior counsel for the mother tendered a report from Tasmanian Pathology Service noting the increase in CA 15-3 readings between 20 October 2008 and 7 January 2009. Normal readings fall within the 0 - 31 range; the mother's reading was 57 on 20 October 2008, 56 on 19 November 2008, 64 on 8 December 2008 and 68 on 7 January 2009. From a medical perspective, that is not good news.
6. The father advised the court that he did not contest any of the expert medical evidence adduced by the mother since her diagnosis in May 2007. In those circumstances, no medical practitioner was called for cross-examination and I act on the various expert reports.
7. Before the court was Ms SN's family report dated 13 August 2008. Further family reports prepared by Mr CH on 28 October 2005 and 16 March 2006 are referred to in Benjamin J's judgment of 21 December 2006 but Mr CH was not a witness in this trial.

1. On 21 December 2006, after a nine day trial, Benjamin J made final parenting orders in respect of three of the parties' eight children. The three were L born in December 1990, J born in January 1994 and C born in December 1998. Orders provided for the parties to have equal shared parental responsibility for the children and for them to live with the mother. L was to spend short periods of time with her father; C and J were to be with him during school terms from 10:00 am. Saturday until 3:00 pm. Sunday on each alternate weekend, in the first week of each of the mid-term school holiday periods, for a week in January and on special days.
2. That the mother filed a Notice of Appeal against these orders is clear from a judgment of Benjamin J of 19 February 2007, when he dismissed her application for a stay of the orders of 21 December 2006, save in respect of the father's time with L. That appeal was subsequently withdrawn.
3. On 15 January 2007 the father filed a contravention application in which he alleged the mother had contravened paragraph (4)(c) of the orders of 21 December 2006 and that the parties' son, G, and son-in-law, Mr S (the husband of their daughter M) had aided and abetted the mother in that contravention.
4. Paragraph (4)(c) of the orders of 21 December 2006 provided for C and J to spend time with the father "from (sic) one week from 1 January in each year". On its face, nothing in the order required the children to be made available for time with their father on 14 January, as opposed to 1 January. The contravention application was heard and determined on 20 February 2007 and the judgment makes no reference to this discrepancy. The evidence adduced in the contravention proceedings was not before this court (save insofar as it was canvassed in Benjamin J's judgment) and it may have provided an explanation.
5. A summary of relevant events on 14 January 2007 can be found in the judgment of the Full Court of 5 July 2007 ([2007] FamCA 655) in which the Full Court determined appeals filed by the three respondents to the contravention application of 15 January 2007. Suffice to say that the father attended the mother's home to collect J and C. The children's suitcases and a communication book were waiting outside the door. When the father knocked on the door both the children came to the door and immediately said "I'm not coming with you". The children failed to provide him with a reason for their refusal, save that C said "it's all your fault". G and Mr. S were present at the home. Several endeavours by the father to persuade the children to come with him, and intervention by local police, proved fruitless. After about two hours, the father left the premises.

. . . that the children are to be delivered to the father at his home in [P] by the mother or on behalf of the mother and if on behalf of the mother, to be by one of the adult female siblings of the children (including [ME]) or such other person as is agreed in writing between the parties. AND IT IS NOTED that the mother may bring with her any of the adult female daughters of the parties such as she considers appropriate.

1. The then adult female siblings were W, who lived with her husband and children in D; M, who lived in L with her husband and two children; and ME, who turned eighteen in October 2006 and had no driver's licence. I cannot say if the court had enquired whether W or M was prepared to deliver the children to P, or to accompany the mother.
2. The orders provided for J and C to be returned to the mother's home at the conclusion of time with the father.
3. Within days of the orders of 20 February 2007 the mother was admitted to Hospital and placed under the care of Dr. RF, psychiatrist. In a report dated 1 June 2007 Dr. RF reported (having first seen her on 23 February 2007) that the mother was completely, although temporarily, prostrated by the outcome of the contravention proceedings. He diagnosed an adjustment disorder with depressed mood.
4. J and C spent the weekends of 10 March 2007 and 24 March 2007 with their father pursuant to Benjamin J's orders. Orders provided for them to be with him for a week in the first school term holidays and they stayed with him between 9 and 15 April 2007. On 28 April 2007 J and C went to the father's home for weekend time. A disagreement between J and the father about J's attendance at a special Exclusive Brethren meeting that day ended with J, then aged thirteen, curled in a foetal position in a partly built cubby house in a tree, a stand-off only resolved when the father called an ambulance. The children returned to their mother's home the next day; they have not been to their father's home since.
5. Each of the respondents to the initial contravention application appealed. The mother sought a stay of Benjamin J's orders of 20 February 2007, pending the determination of her appeal. That application was heard by Benjamin J on 13 March 2007. His Honour stayed paragraph (5) of his orders and provided for the respondents to pay all the costs of the father and the independent children's lawyer in respect of the contravention proceedings. The stay application was otherwise dismissed. In his reasons his Honour noted that the three children spent time with their father in accordance with the earlier orders on 24 February and 10 March 2007 and it was :

. . . an agreed fact that handover occurred, not in the way envisaged by the order, but in another way which was in accordance with agreements between the parties.

1. In May 2007 the mother was found to have a recurrence of the breast cancer for which she had been treated in January 1999, with extensive liver and bony metastases. In lay terms the diagnosis was of a terminal illness. She commenced an intensive palliative regime in June 2007; information given to her then suggested a life expectancy of three to six months.
2. Dr. RF's evidence was that news of an incurable and eventually fatal disease affected the mother significantly less than the outcome of the contravention proceedings in February.
3. In his report dated 1 June 2007 Dr. RF reported :

There is theoretical reason to believe, but not rigorous proof, that the suppression of normal body defence mechanisms by acute stress enhances the risk of survival of isolated cancer cells that are capable of producing a recurrence of pre-existing cancer, if not initiating cancer. The postulated mechanism involves the decreased activity of NK cells (NK stands for natural killer, because these cells destroy abnormal cells without the intervention of immune mechanisms involving antibodies).

1. On 31 May 2007 the father filed another application seeking that the mother be dealt with for contravening the orders of 21 December 2006, as varied by the orders of 20 February 2007. He alleged that the mother failed to make L, J or C available to spend time with him on 26 May 2007, pursuant to the orders. In support of that application he filed an affidavit sworn on 29 May 2007.
2. A fortnight later, on 15 June 2007, the father filed another application for contravention, supported by an affidavit sworn 13 June 2007, alleging that the mother contravened the orders by failing to make J and C available to spend time with him on 2 June 2007.
3. On 15 June 2007 the father also filed an application in a case, seeking interim orders. At that time there was no application for final orders on foot, as all extant applications had been dismissed by Benjamin J in December 2006. In the interim application the husband sought that paragraph (4) of the orders of Benjamin J of 21 December, 2006 be discharged, that J and C live with him and, until further order, spend time and communicate with the mother on each second weekend, half of Tasmanian Gazetted school holidays, and at such other times as agreed. The application specified that the alternate weekend time be "dependent upon the mother being physically and mentally able to care for the said children." It was supported by a second affidavit sworn on 13 June 2007.
4. Three days later, on 18 June 2007, the father filed an application for final orders in which he sought orders in the same terms (but on a final basis) as those in the interim application filed a few days earlier.
5. On 5 July 2007 the Full Court quashed the convictions (and thus the sentences) of G and Mr. S, finding that nothing in the orders of 21 December, 2006 placed any onus on either to assist or encourage compliance with the order and that no findings by Benjamin J could amount to aiding or abetting the mother in her contravention of the orders. The Full Court dismissed the mother's appeal against conviction and gave directions for the filing of written submissions on the question of penalty and costs.
6. On 30 July 2007 Benjamin J disqualified himself from hearing any further application in the proceedings. All extant applications were adjourned to 3 August 2007 for directions.
7. Orders made on 3 August 2007 required the mother to file expert evidence of her diagnosis, treatment and prognosis and adjourned all extant applications to 22 October 2007. Dr. RF swore an affidavit, responsive to questions set out in those orders. He believed the mother had the capacity to give valid instructions to her legal practitioners prior to and in the course of a court hearing, but that it was not possible to predict with reasonable certainty what her condition may be on any day between her next episode of chemotherapy (scheduled for 27 September 2007) and 22 October 2007. Again, it was not possible to predict with reasonable certainty whether she would be fit to attend court, whether by electronic means or in person, on 22 October 2007. At the time of his report he considered she would be fit to give oral evidence and be cross-examined but may require rest periods if the cross-examination were lengthy. Dr. RF's evidence was that fatigue and chemotherapy treatment can cause short term memory problems in patients and while he was satisfied the mother was not suffering memory problems which would affect her capacity to give instructions and evidence at that time, he could not predict with any reasonable certainty her condition on 22 October 2007.

1. Pursuant to trial directions, the father swore an affidavit on 22 December 2008 which was filed the following day. It is a short affidavit. Notwithstanding the contents of his letter of 22 October 2008, in paragraph 9 of this affidavit he made it clear that he maintained the application for residence of both children, initially made in June 2007. When the trial commenced he was given an opportunity to clarify the specific orders sought by him, and confirmed that the orders sought in that application filed 15 June 2007 were those he sought in the trial.
2. When commencing his final submissions, the father tendered a detailed minute of the final orders then sought by him; given its length, a copy is annexed to this judgment marked "A". In essence, the father sought equal shared parental responsibility for J and C. He abandoned his application for an order requiring J to live with him and, in lieu, sought that J spend time with him on one Saturday a month during school terms from 10:00 am until 1:00 pm, the first two days of each school holiday period, on Father's Day and at such further times as were agreed between J and the father. The father maintained his application for C's residence and sought that she spend alternate weekends with her mother during school terms, as well as the first week of each term holiday and one week in January.
3. Other orders related to the delivery of the children, the sending by the mother of correspondence to C, the provisions of school reports to the other, the exchange of information about the children's medical care and health, injunctions restraining each from discussing the other's faith or the circumstances in which the father left the Exclusive Brethren or his lifestyle with or in the presence of the children, and a mandatory injunction requiring both parties to do everything necessary to encourage the children to speak positively to and about the other party and discourage them from speaking negatively in that respect. The father also sought an order:

That [J] and [C] be assessed and if necessary enter into a programme of therapeutic psychological treatment to assist in the treatment of the stress and frustration that the children may be carrying.

1. In response to an enquiry by the court at the conclusion of the trial, the father made it clear he did not seek to withdraw the two contravention applications filed in 2007.
2. The mother maintained her application for discharge of the existing order for equal shared parental responsibility and an order for sole parental responsibility. She also sought the discharge of all orders which required J and C to spend time or communicate with the father.
3. The Independent Children's Lawyer tendered a minute of orders sought. He submitted that the mother should have sole parental responsibility for J and C and they should live with her. There should be no orders requiring them to spend time or communicate with the father. As provided in the orders of Benjamin J of 21 December 2006, the mother should be restrained from discussing, or allowing anyone else to discuss, the father's faith, his leaving the Exclusive Brethren or his lifestyle in the presence or hearing of the children. He proposed that the mother inform the father as soon as practicable of any serious illness or accident which befell J or C and authorise their school principal to provide information about their educational progress.
4. At the commencement of the hearing the mother had filed a case outline which included a summary of argument. The father prepared a written summary of argument which was tendered when he made his final submission and an order made that day provided for it to be indexed on the court file.

1. Each of the parties sought to discharge orders made by Benjamin J on 21 December 2006 and to have the court make radically different orders. It was not submitted that the court should not reconsider the outcome; each party relied on facts and circumstances which occurred after Benjamin J's orders were made.
2. In Malak & Mairie [2009] FamCA 268 paragraphs 56-67, I summarised a number of recent cases dealing with principles referable to re-litigation and applications to vary orders on the basis of alleged new facts and circumstances. In considering whether to allow re-litigation of parenting orders, the best interests of the child remain the paramount consideration. Given the events which have unfolded since 21 December 2006, I am satisfied that the best interests of the children warrant a reconsideration of the questions of parental responsibility, residence and the time they spend with each parent, and consequential orders.

1. Although the mother filed a notice of appeal against the orders of Benjamin J. on 21 December 2006, it was subsequently withdrawn. Thus, his Honour's findings of fact are binding. As each of the parties sought to vary the orders of 21 December 2006, it is useful to summarise some of those findings.
   • The parties married in May 1977 and separated in February 2003.
   • The parties were both members of the Exclusive Brethren faith and of the Exclusive Brethren community in Tasmania. The mother is a fourth generation member of the faith and the father had been introduced to it at an early age. Their eight children were raised according to the tenets of the faith.
   • In early 2003 the father left the community and ceased to conduct himself in accordance with those tenets.
   • The father spent time with the three younger children in the year following separation but at the time of trial he had not seen L at all in 2005 and 2006, save two occasions in October 2006.
   • C and J had spent time with their father but it had diminished, particularly over the twelve months prior to trial.
   • When the parties separated in 2003 the father wished to leave the Exclusive Brethren and to separate from the mother.
   • The father knew that marriage separation was inconsistent with remaining a member of the Exclusive Brethren and that the ultimate result was withdrawal from the person instigating the separation.
   • The father was aware that members of the Exclusive Brethren do not socialise with people outside the Exclusive Brethren nor eat with those who are not members of the Exclusive Brethren.
   • Until the breakdown of the marriage the father had imbued all of his children with the practices of the community.
   • If the children, or any of them, lived with the father their friendships within the Exclusive Brethren would come to an end.
   • Ms. M (the father's now wife) attended the Open Brethren church. She would not encourage the children's relationship with the Exclusive Brethren and would support the father's desire to remove the children from the influence of the Exclusive Brethren and would not accept their views if they wished to remain part of the faith.
   • The mother's evidence was that the father was a loving and caring father, shared close bonds with the children and was respected and loved by them, at least up until separation.

FATHER'S TIME WITH THE CHILDREN SINCE ORDERS OF 21 DECEMBER 2006

1. Prior to Benjamin J's orders, arrangements had been made for the children to spend time in Victoria in late December/early January and the father agreed to defer the commencement of his time with them. The first period of time was to be on 14 January 2007 but the children did not leave their home to accompany him. The circumstances have been summarised in paragraph 49 of this judgment. The following day the father filed the first application in which he sought that the mother be dealt with for contravening the orders. That application was determined by Benjamin J on 20 February 2007.
2. On 23 February 2007 the mother was admitted to Hospital. As she was unable to deliver the children to P, the father collected the children from her home in the presence of the parties' daughter ME and Ms Mills, a lawyer. Neither ME nor Ms Mills was called and the mother conceded that she had to rely on ME's report as to what happened on 23 February 2007. The mother was told that the three children went with the father but J and C refused to go back to the father after L was returned, she only being required to spend two hours with her father. After an hour and "significant coercion" from ME and Ms Mills, they did so.
3. After their return on Sunday the children visited their mother in hospital. The mother's evidence was that C, in particular, seemed very stressed, neither were their "normal selves" and, in the following week, each said they had not enjoyed their time with their father, that Ms M had been present all or most of the time and that they did not want to go back.
4. The next contact was to commence on 10 March 2007. The mother was not well enough to drive and, after negotiations with the father's solicitors, it was agreed that their son T would drive the children, with Ms Mills as an observer in the car. According to the mother, C was doubled over with stomach cramps prior to leaving. On the children's return, all expressed unhappiness, complaining about the lack of cleanliness at the father's home and their unhappiness at missing Brethren meetings.
5. The children were to spend the weekend of 24 and 25 March 2007 with the father but as Exclusive Brethren members from interstate were to visit, and there was to be a special meeting on 25 March, it was agreed that, for that weekend only, the children would be delivered to the father at 4:00pm on Friday 23 March. L would be collected at 6:00pm that day, and J and C would be returned to W's home in D at 9:00pm on the Saturday. That contact occurred; the mother's evidence was that she and the children were grateful to the father for his cooperation.

[J], [C] and I are NOT going tomorrow - Saturday 2nd June 2007.

I honestly don't know, why anyone could even think of deciding such a thing, because as if ANYONE is going to get me to go and stay at itchy, bitchy, witchy, fitchy house over- night. I could have left school and home by my own age of 16.

You are sick, very sick and we need to keep near you, and try and help you get or feel better.

As this is the case, we are going to spend EVERY spare day we have possible with you, so that we might become strong but restful like you.

Mum we all love you and we would NEVER leave you or the brethren.

Try not to worry about us and the many weeks and weekends ahead because, we are NEVER going to go as we are staying near you because you are sick and we feel the need to be near you lots.

1. I accept the mother's evidence that she knew nothing of the note until it was handed to her.
2. The mother's evidence was that by 2 June 2007 she was feeling very unwell, at least in part a consequence of the chemotherapy she had received the previous day. She was taken to a general practitioner, and then to the Emergency Department of the Launceston Hospital, where staff tried to find a bed for her at St. Vincent's Hospital or St. Luke's Hospital. When that could not be achieved, the wife was given a Valium prescription and taken home. She had no direct memory of what happened with the children that day or what she may or may not have said to encourage or facilitate the children going to their father. Some days later, the parties' son, T, told her that he had phoned the father to tell him that the children would not go. The children had visited her when she was in hospital that day.
3. The father filed a contravention application on 15 June 2007.
4. The next contact weekend was that commencing 30 June 2007. The mother's evidence was that all three children emphatically said they would not attend. She was experiencing increasing problems with transport. Benjamin J's order of 20 February 2007 provided for the children to be delivered to the father at his home in P by the mother or by one of the adult female siblings of the children, or such other person as was agreed in writing. On occasions the parties' son, T, accompanied by ME (who was only 18 and did not have a driver's licence) delivered the children outside the father's home. T was unavailable for the weekend of 30 June 2007 and, absent agreement, either the mother (who was too ill to do so) or one of the parties' adult daughters had to be involved.
5. Both M and W flatly refused to do the transportation. They were angry with their father and also concerned about the potential for them to become respondents to a contravention application, if involved. By that time their brother G and M's husband had been sentenced to terms of imprisonment for aiding and abetting a contravention, and the result of the Full Court appeal was not known. The father had also filed an interim application seeking that J and C leave their mother's home and move immediately to live with him in P. The father had earlier rejected a proposal which would have allowed other members of the Exclusive Brethren to deliver the children. In these circumstances the mother proposed (through her solicitors) that for that weekend the father collect the children from the N Newsagency, which is a short walk from her home. The father accepted that proposal.

As you would be aware Justice Brown is expecting to review matters in the Family Court in relation to [L], [J] and [C] spending time with me as per the Courts decision and also contravention of these orders by [the mother].

I have received the medial report in relation to [the mother's] medical condition and am sorry she has been so ill, yet am glad there has been something positive from the treatment

I invite [the mother] and yourself to be available to have a discussion in view of the future of the children spending time with me and to alleviate further Court pressure on [the mother]

This would need to be next week as I understand the review is towards the end of this month

1. In an emailed response dated 24 June 2008, G wrote:

I appreciate anything that could alleviate further pressure on Mum.

However, due to all thats entered into the past, neither mother or myself could meet with you.

If the children would agree would you be prepared to meet with then for ten to fifteen minutes.

As the time is urgent could you reply a.s.a.p to the above email address.

1. The following day the father responded with another letter to G, in these terms:

Thankyou for your response, however I thought I had made my request clear.

I gave no options, other than to meet you and your Mother, to discuss future direction. You have made your intentions clear, therefore I am left with no option than to continue with proceedings.

I am sorry that you are not allowed to meet with me but if you should ever change your mind, my door is always open to you.

1. At that time the father had not seen the children since the period at the Contact Centre in early January 2008. Asked why he closed the door on the proposal he said "I've had the opportunity before and it hasn't happened" and "I knew what had happened at other times when I came to collect them". He agreed he had been very close to G and that G had been more sympathetic to him than other members of the family but said he was "being thwarted by the children" and "[G] made a turn at the last trial", the last a reference to G giving evidence for the mother before Benjamin J. Later the father made it clear he saw this offer as a ruse "designed to make them look good"; it was, he said "just another psychological trick to have me come and not see the children".
2. While he did not seek to avail himself of this offer, the father maintained his door was always open to all of his children, regretted their failures to respond to his overtures and made public his continuing love for them. None of his adult children see him or seek any sort of continuing relationship with him, but the father's evidence was of attempts to communicate with them by correspondence and, in at least three cases, by placing notices in the newspaper.
3. In October 2008 the father placed a notice in the newspaper in these terms:

Happy birthday son. Though religion separates us, my God is greater then one secular group. I'll always love you and my door is open for you.

1. It became clear that the father thought that "secular" meant "one sect"; he said he could have used the word "cult" but did not want to offend T.
2. Later in October 2008 the husband placed further notices. The notices read:

[M] - Happy birthday today, Darling. My love to you and your children on this special day. (How many more children do you have?) I miss you.

[ME] - Happy birthday tomorrow, Darling. It was good to see you. Sorry you couldn't stop and talk with me. Hope you had a good time away.

1. As the spelling of ME's surname was incorrect, the father placed the second notice in the paper again later in October. His evidence was of seeing ME at the airport; the comment in the notice about being sorry she couldn't stop to talk is referrable to that.
2. The father did concede that these notices might be interpreted as being more about his position than about his love for his children but gave little sense he understood how counterproductive they could be. Ms SN's evidence was that all of his children would have been mortified by the notices; in their view, if he truly cared about them, he would not bandy their names about in public. Asked about the notice addressed to T, Ms SN said it was "a very bad idea" if he wanted to have a relationship with the children; it was "a guarantee of no relationship". She was less critical of the notices addressed to M and ME; her evidence was that while the women would have felt humiliated, the placement of the notices was well intentioned, if insightless.

1. On school days J gets up at about 7:00 am and C a little later, as she is harder to wake and doesn't settle easily. J goes to the shop for newspapers and the children eat breakfast. Grace is said before eating and there is a scriptural reading with the children before they go to school. Generally, readings are from the Gospels in the morning, Proverbs at lunchtime and Psalms at night. W or another family member takes them to school at about 8:30am and they are picked up just after 3:00 pm. The children attend an Exclusive Brethren school called O School. The curriculum includes one hour of scripture a week. Both children have homework; J's load is heavier and will increase.
2. After school J is keen to "dump his bag and kick a ball" with one of his friends; he plays cricket and likes snow boarding and electric guitar. C is more content to play with her dolls and in the home.
3. J attends a meeting every night; this is usually after dinner but sometimes before. C attends the meeting if she is not too tired. The meeting itself generally takes about one hour and there is some social interaction following it.
4. The family routinely eat dinner at about 6:00 pm but if there is a meeting at that time, they eat later. Grace is said and a verse of scripture is read. The mother tries to get C to bed around nine or a bit earlier and J goes to bed around nine-thirty or ten.
5. On Saturday the children get up and have breakfast with the usual Grace and reading. There is a meeting on Saturday morning, usually at 9:00 am; that is often in L but can be in other locations. The mother's evidence was "everyone who can, goes." That meeting is of about one hour's duration. There is a scriptural reading before lunch and normal activities in the afternoon and evening.
6. Sunday is the Lord's Day and the Lord's Supper is paramount. The family rise and go immediately to that service, which starts at 6:00 am and lasts between half an hour an one hour. Breakfast is eaten after that. There is a meeting of about one or one and a half hours at 10:00 am before the midday meal, which would often be taken with other members of the community. Meetings are frequently held in other towns and in those circumstances members stay and eat with Brethren families there; if, for example, the Sunday morning meeting was in Hobart, the family might not get home until about 5:00 pm.

1. When determining what is in a child's best interests the primary considerations are :

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

These are consistent with the objects set out in s.60B(1).

1. As confirmed by the Full Court in McCall & Clark, a meaningful relationship is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. That contact between a parent and child is not necessarily analogous with the existence of a relationship between them, or the potential for there to be a relationship between them, is apparent from Ms SN's evidence. In her report, she recommended that the father consider cooperating with any contact proposed by the mother; it was clear she was considering very minimal contact, possibly for a short period a few times a year. She noted then:

This is unlikely to build any meaningful relationship with the children but would allow him to physically see how they are developing.

1. There is no doubt that J and C once had a meaningful relationship with their father. He was loved and respected by them and their siblings; the mother agreed the children enjoyed many happy times with their father prior to his departure. Benjamin J told J and C on 21 December 2006 that he had determined there was a benefit to each of them in having a meaningful relationship with their father. Despite them spending some time with him after those orders were made, I must find that the children's relationship with their father has deteriorated, rather than improved, and is now virtually non-existent. Events since December 2006, including the imposition of the suspended jail sentences, the mother's diagnosis and illness, the father's refusal to accommodate or deal respectfully with J's desire to attend meetings and the further applications for contravention and residence have undermined whatever relationship existed. While I will refer to the children's views in more detail later, their views about their father and the potential for a relationship with him cannot be ignored. I accept as well-founded the mother's assessment that J and C's views are more entrenched now than they were in late 2006; their resistance to any form of relationship with their father is now more apparent and more vocal. On the evidence before the court it could find no prospect of that resistance diminishing in the foreseeable future.
2. When the children saw the father with Ms SN in August 2008, C was "somewhat less rejecting of his overtures" than J. She did not avoid total eye contact and responded "a little" to the father's attempt to engage them by using a photo album in which were photos taken on their few weekends with him in early 2007. Ms SN's evidence was that C was clearly unhappy to be doing so and she soon began to model her responses on J's behaviour. In Ms SN's opinion, C's youth and courtesy explain her relatively polite responses to her father. Nothing she observed qualified her evaluation of their relationship as a "very poor minimal relationship at best."
3. In the absence of a current meaningful relationship, the court must determine, if it is in the children's best interests or the best interests of either one of them, whether orders could be framed to develop or renew a meaningful relationship with the father. Such a meaningful relationship is the optimum aspiration but, as the Full Court noted in , there will be some cases where there will be no positive benefit to be derived by a court attempting to craft orders to foster a relationship with one parent, if that would not be in the child's best interests.

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. The father's submission is that no weight should be placed on any views expressed by the children as they are the product of alienation and denigration. His conviction that the elders of the Exclusive Brethren community indoctrinate or brainwash adults and children alike, leads him to deny any autonomy to those adults and children. From his perspective the mother, W and her husband, and J and C, simply parrot a rhetoric which is not their own but the product of sustained and cynical indoctrination.
2. Although the father denied autonomy to members of the Exclusion Brethren community he himself spoke of his years of discussion, questioning and dissent while still a member of the community. He eventually left the church, albeit at great personal cost. Benjamin J summarised the evidence of other witnesses who have done likewise. The father and these witnesses were apparently able to express dissent and eventually take the hard intellectual and emotional decision to leave.
3. I place weight on Ms SN's evidence that the children are heavily influenced by their older siblings, and that it is not realistic to expect them to go against the views of those siblings and the teaching of their church. They have been raised and nurtured in this environment and unless the mother or their older siblings change their views, it is unlikely that J and C's views will change, at least in the foreseeable future.
4. Members of the Exclusive Brethren community do not socialise with non-members. Their aspiration is that children not be exposed to worldly influences and they do not form friendships with children outside the Exclusive Brethren community. Their father having left the community, and having been withdrawn from, J and C's attitude to him is explicable. However, the views they now profess are also based on their experiences since the orders were made in December 2006. They are aware that their father's actions in seeking to enforce those orders resulted in their mother, sister, and brother-in-law being sentenced to terms of imprisonment. It is clear that the mother attributes responsibility for the recurrence of her cancer, at least in part, to the trauma she experienced when sentenced. Dr RF's report of 1 June 2007 provides some support for that view but its medical reality is less relevant than its currency in the home in which the children live.
5. The father conceded that the children would not want to live with him, if given "free will".

(b) The nature of the relationship of the child with:

(ii) other persons (including any grandparent or other relative of the child);

1. Findings have been made about the children's relationship with their parents when assessing the primary considerations. The father relied on the photos taken at P in early 2007 as proof of a warm relationship, once initial reluctance was overcome. The many photos of J with the dog appear to substantiate J's statement to Ms SN that he used the dog to avoid his father. The photos of C suggest she was capable of relaxing and enjoying time with her father and the mother agreed that C spoke with apparent pleasure of horse riding at P. However, as Ms SN noted, the photos were taken before the mother's relapse and the children are now

....older, more aware, more concerned and would know that the family believes the ongoing litigation pursued by their father to be the reason for their mother's terminal relapse.

1. I can find that the children have appropriate and loving relationships with their siblings and with their siblings' spouses and children. They are particularly close to W and her husband. C referred to her nephews and nieces when she was with Ms SN, and to cousins and friends. Ms SN described the mother's home as a large and happy household. She said the children are well adjusted and polite and their presentation reflects well on the environment in which they have been brought up since their parents' separation in 2003.
2. The children's paternal grandfather never came into fellowship so was not part of their lives while their parents were together. The father spoke of the importance of the children spending time with him; the mother said her objection to this was not premised only on him being outside the Exclusive Brethren community. The objection was not elaborated.
3. The father told Ms SN that he had no contact with his own brother for twenty years; he may see him now. He said that when still a member of the community, he had stopped his own mother (then a member) from seeing her daughter (presumably his sister). There was a fleeting reference to the father's mother having left the Exclusive Brethren community and to her now living close to the father. The court can proceed on the basis that unless they spend time with their father, J and C will have no contact with their paternal grandfather or with any other relatives on the paternal side who are not members of the Exclusive Brethren community, including their paternal grandmother. The court can also proceed on the basis that if that occurs, the children will not spend time with anyone who speaks positively about the father and paternal relatives outside the community.
4. The father was keen to speak of the good relationship the children had with his wife and her adult daughter, R. One of the photos tendered by him was a photo C took of R. Benjamin J's decision of December 2006 makes it clear that the father's now wife then had had only minimal contact with the children. Were she present on every occasion of contact since, she would still not have had much time in which to get to know them. The children complained about her presence, which is not unusual with a new step-parent, absent the complications of this case. Ms M was not called but I do not doubt that she would do everything possible to support her husband in his pursuit of a relationship with his children, would do her best to relate well to the children herself and would care for them if they spent time with her. It is, however, not a relationship to which the court could give priority.

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :

(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(b) has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long-term issues in relation to the child; and

(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. The court could not find that the mother or members of her family would positively facilitate or encourage a close and continuing relationship between J and C and their father or, indeed, any relationship. On the occasions on which the children did not go with their father in May and June 2007 the mother was very unwell and on one of them (2 June) she was at a hospital. She had a recollection of packing the children's bags on another occasion and of discovering the bags outside the house after the children had left with ME for the changeover point. Her evidence was that she had always sought to comply with the orders. She was candid in saying she would not be able to force the children to go against their convictions.
2. W's evidence was that she could not encourage J and C to spend time with their father but would seek to comply with any orders. Mr A's evidence was that he would do all he could to comply with any order and would not feel it his duty to discourage their attendance. He would not suggest they should not go. He said he could not positively encourage the children and spoke of his fear of exposing himself to future contravention proceedings.
3. I am satisfied that the children's physical, emotional and educational needs are being met in their mother's home. I place no weight on the father's complaints about their schooling at O School, the school he supported when living within the community. He agreed that, prior to separation, he and the mother had agreed the children should be educated at O School. Benjamin J summarised aspects of the school and J's educational progress in his judgment of 21 December 2006. At that time C was at a local primary school but O School now provides education at her level, too. The children were described by Ms SN as polite and courteous and apparently well socialised.
4. I find no substance in the father's allegation that there may be "under age drinking" in the mother's home. Mr A denied giving beer to J, a denial I accept.
5. Cross-examined the father said that if the children lived with him they would have a greater chance of reaching their potential. This would arise, at least in part, through him releasing the children, to use his words, from the constraints of their religion and exposing them to ideas and influences now denied them. He may also have been referring to the potential for them to attend university if they were not continuing members of the Exclusive Brethren faith.

(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from :

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. I must find that a move to live with the father would impact adversely on C and be detrimental to her emotional development. I accept the mother's evidence that C is very frightened that she might be sent to live with her father and has not been sleeping properly. The mother's evidence that such a move would be enormously traumatic for C is the evidence of a mother, not of a social scientist. However, it was consistent with Ms SN's expert opinion.
2. Ms SN's evidence was that both children are fearful, angry and upset at the father's proposal that they live with him. They do not wish to leave their extended family and their familiar surroundings, even in the event of their mother's death. They are deeply distressed at the thought of leaving her while she is so ill. At fifteen, J is becoming more confident about showing his anger and rejection; while C is still young and polite and superficially somewhat less rejecting, she is more likely to be internalising her distress and is generally more anxious.
3. In her report Ms SN noted that Mr CH, in an addendum to his report dated March 2006, expressed the view that the likely outcome of continual court applications would be a strengthening of the children's hostility towards the father and further unification in their support of their mother. Ms SN referred to the accuracy of this prediction, and its reinforcement by the tragic circumstances of the mother's relapse.
4. Ms SN noted that for C, the choice has become more stark. In simple terms time spent with her father is time away from her mother and thus, time spent worrying about her mother. Her likely reaction to time with her father cannot be predicted based on photos taken before her mother's relapse.
5. Ms SN's evidence was that it is highly unlikely J will accept any time with his father. He would "vote with his feet". Any order for contact would only magnify the current rift between them.
6. I accept as sound Ms SN's evidence that the father's pursuit of a change of residence is indicative of a significant lack of understanding of the children's needs, both now and in a future time of bereavement and mourning. In her opinion, a removal from the care of their mother or the extended family, community and friends is likely to cause the children to suffer long term emotional trauma. Her evidence was that the children's emotional need for support from their extended family during these traumatic years must take priority over any need they may have for a long term relationship with their father. Further, the children's emotional needs must take priority over any questions about the church's compliance or otherwise with court orders for contact.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. The practical difficulties in this case were enacted in 2007 and have not diminished. Although changeover arrangements were specified by Benjamin J, the orders were made prior to the mother's relapse and despite some short term agreements, transport problems dogged the few occasions of contact. However, those problems are not at the heart of the issue and transport arrangements could be devised if the court found it appropriate for one or more children to move between their parents' homes.
2. The father attributes most of the practical difficulties to the malign influence of the church. While describing his position as a struggle, not a fight, between the church and him, the father said it was not unfair to say it is a dispute between the church and the court. He is entitled to his view but I cannot find the view to be well founded. Ms SN considered his position in her report, as follows:

[The father] regards the proceedings as being between the Church and the Court. He alerts the Court to the influence of the Exclusive Brethren Church in teaching their members to withdraw children from contact with parents who are not church members. The Church says in its publication that this is not the case. This dispute is not about determining this. This dispute is about two young children who have not had a meaningful relationship with their father for 5 years; who are well established in their home, community and large close-knit family; who have clearly expressed views and behaviour indicating that they do no wish to pursue a relationship with their father; and who, above all, are dealing with the terminal illness of their mother. While the loss of his family is undoubtedly a tragedy for [the father], [J] and [C] are focused on a tragedy that is far greater and more direct in impact on them.

1. Ms SN's evidence was that both children need relief from the stress of the existing orders which require them to spend time with their father.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. I have earlier referred to the community in which the children live, their adherence to the faith and their lifestyle within the community.
2. In his judgment of 21 December 2006, Benjamin J found that the father's approach to the life the children should lead with him had changed in the course of the litigation. The father had told the family consultant that initially he would not knowingly do anything with the children that might compromise the teachings of the Brethren church. By the end of the trial he was candid about his "desire to show them another side of life" and "release them from the clutches and powers of the Brethren." Benjamin J found that the father's initial concern about the impact of the proposed change on the children seemed to have been overtaken by his personal enmity towards the Brethren.
3. Before me, the father spoke again of showing the children life outside the church and "releasing them from the church"; with him, their religious beliefs would not be accommodated insofar as they ran counter to this course. To allow a child to eat alone or not watch television, or to read a passage from the bible on Sunday, is not to allow that child to live a life consistent with his or her Brethren faith; much more is required. At the most basic level the father's refusal to countenance C's attendance at meetings, even when spending time with her mother and siblings, illustrates his intentions. With him C could not choose to maintain her commitment to her faith; despite the rhetoric of "choice", it is her father's choices which would be imposed on her. Having spent more than forty years in the Exclusive Brethren faith the father must know of the centrality of attendance at meetings and that obligations of members are not divisible, or optional; indeed, that is one of his complaints.
4. The court must find that were the children to live with the father they would be exposed, knowingly and deliberately, to influences and practices contrary to their beliefs and the beliefs of their mother, siblings, extended family and friends. Such exposure could be traumatic for them; it would certainly cause them distress.

(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;

1. Benjamin J considered a recommendation for the making of interim orders, and decided against it. Before him, Mr CH had suggested that the authority of the court to make orders requiring them to spend time with their father may lift the emotional burden from the children and allow the children to spend guilt-free time with him. That has not occurred and the mother's subsequent relapse has entrenched the children's views.
2. The court can track the time the children have spent with their father since he left the family home in early 2003 through the findings of Benjamin J in December 2006, the contravention judgment in February 2007, the Full Court judgments later that year and the evidence before it in these proceedings. When their parents separated, J was nine and C was four. The mother had been diagnosed with breast cancer soon after C's birth, and was ill and receiving treatment for some years. In the six years since separation the children have spent little time with their father and all attempts (judicial and otherwise) to achieve a rapprochement have failed. Despite this reality, J and C have developed well. They may be as well equipped as any other children of their ages to face the prospect of their mother's early death, but it is a devastating prospect. The continuation of the litigation after her diagnosis in May 2007 has driven both children further from their father. In their best interests, the litigation must end.

(m) any other fact or circumstances that the court thinks is relevant;

1. The father's ambivalent motives for his application were reflected in his evidence about the potential for the mother to serve a term of imprisonment. Ms SN was not aware the mother's sentence had been quashed when she spoke with the father in August 2008. She reported that the father, when asked about the current order for a jail term, responded ambivalently. On the one hand, he said he did not want the mother to go to jail; on the other, he did not believe the orders should be suspended and stated his belief the sentence would be served in the prison hospital.
2. Cross-examined, the husband asserted that any remarks he made about the potential to serve a sentence in the prison hospital were attributable to advice from a police member with whom he had a business association "not long after the last case". He agreed he knew jail was an option in the February 2007 proceedings but insisted he and his wife did not want the mother to be imprisoned. However, he said a fine would be "like taking a bucket of water out of the Pacific Ocean" and did not know whether a community based order would be appropriate. Asked if he had factored in the potential for a jail term if she were convicted of either or both of the pending contravention applications, he said he would be devastated if she went to jail. Despite that evidence, he maintained his applications for her to be dealt with for alleged contraventions of the orders in May and June 2007.
3. I have considered the objects which underlie Part VII: findings made when considering the first of the primary considerations are particularly referable to them. Similarly, findings made when weighing the primary and additional considerations are relevant to the principles which underlie those objects. I must find that the children's best interests take precedence over the rights described in s 60B(2)(a) and (b). The evidence satisfies me there is no possibility of the parties agreeing about the future parenting of their children or sharing parental duties and responsibilities, and the children's best interests must take precedence over the principles set out in s 60B(2)(c) and (d).
4. It could be argued that the principle contained in s 60B(2)(e) is relevant to the decision. No argument was directed to it and I do not find it necessary to say anything further about it. Findings have been made about the family and broader community in which the children live and the centrality of that life to their best interests.

1. The Independent Children's Lawyer submitted that the court should discharge the order for equal shared parental responsibility and, in lieu, give sole parental responsibility to the mother. In his submission, that is the only viable arrangement. I find that to be the case. The lack of any parental alliance; the inability to communicate; the gulf between the parents' aspirations for their children; the security of the children's lives with their mother and siblings; the father's continuing criticism of the church and the children's lives within it; and the fragility of the mother's health; all mitigate against any other outcome. I am satisfied the presumption of equal shared parental responsibility is rebutted, being contrary to the children's best interests.
2. In these circumstances it is not necessary to consider whether spending equal time with both parents would be in the children's best interests and reasonably practicable, or whether spending substantial and significant time would be in their best interests and reasonably practicable.

1. I cannot find it would be in C's best interests to move to live with her father. Such a move would be emotionally devastating for C and would impact adversely on her in the short and long term. In reaching that decision I place significant weight on Ms SN's evidence but also on the other evidence to which I have adverted, including C's views, her existing relationships, and her parents' respective capacities to meet her needs.

1. Nor am I satisfied that there would be any benefit to J or C in making orders which require them to spend time with their father at this time, or to communicate with him. I take into account the reality that this will mean they have no relationship with him, at least in the foreseeable future. That may come at an emotional cost but Ms SN's evidence satisfies me that the cost of forcing contact on them would be much higher, and would be unsustainable. I cannot find any positive benefit to the children in making orders which require them to spend time with their father; nor any prospect of them having a meaningful relationship with him in the foreseeable future.
2. I have considered whether the court should make orders which would allow C to be brought into the father's presence for an hour or two once or twice a year, as initially recommended by Ms SN. Nothing in the evidence satisfies me that there would be any benefit to her in such an arrangement.
3. The parties were asked about this recommendation, as was Ms SN. The evidence satisfies me that were such occasional meetings arranged, whether pursuant to order or by agreement, they would not open the gate to a meaningful relationship with the father. I could not find that such a meeting would even provide a seed which could, in time, put out tentative shoots towards such a relationship. Such a meeting would allow the father to physically assess his children and (although it is probable they have no interest in so doing) the children to physically assess him. It is highly improbable C would do anything other than passively submit to a perceived requirement to be present for as brief a period as possible. It is highly improbable J could be forced to attend. Cross-examined, Ms SN clarified this recommendation, making it clear it related only to C.
4. The father's evidence was of obtaining photos of the children from O School in the past and of speaking to their teachers about their progress. The mother knew he had some contact with the school, but not its extent. She did nothing to interfere with those arrangements and he could continue them into the future. The acquisition of that information will do little to assuage his grief but he can at least have current photos of the children and follow their educational progress.

1. In the letter of 22 October 2008 the mother made it clear she sought the discharge of all existing orders. The independent children's lawyer supported that course. The minute of orders proposed by the father was modelled on Benjamin J's orders and included the provisions in those orders for use of a communication book and the sending by the father of letters, cards, parcels and presents to the children.
2. As there will be no face to face contact, there is no need for a communication book.
3. The father's attempt to communicate with the children in 2008 was rebuffed by C and there is no reason to believe a different fate would befall correspondence sent in the future. With Ms SN, both children rejected proffered gifts. I cannot find it likely correspondence or presents would foster a change of heart in J and C. From their perspective, such attempts to communicate are illustrative of his lack of respect for their stated positions. The notices the father placed in the newspaper demonstrate the difficulty the father has in not adding a jibe to what is, on its face, an anodyne message. To T, the jibe was at his faith; to M, her failure to advise him of the birth of grandchildren; to ME, a denial of autonomy: she "couldn't stop" (his oral evidence made clear) because influenced by others. I cannot find an order in those terms would benefit the children.

1. The father sought an order for the children to be assessed and, if necessary, treated for the psychological consequences of the stress and frustration he saw them as carrying. I do not find such an order warranted. The court can be confident J and C are supported and nurtured within the extended family and that the mother and other family members involved in their care are sensitive to their emotional needs. A decision in this litigation may reduce their anxiety and professional assistance can be accessed if the mother or adult siblings believe it to be useful.

1. Benjamin J enjoined the mother from "discussing and/or denigrating, or allowing others to discuss or denigrate the father's faith, the father's leaving of the Exclusive Brethren or his lifestyle in the presence of the children." The independent children's lawyer and the father sought that this order remain on foot. The mother submitted that no evidence supported the need for it.
2. It is true that the sense of the evidence, including Ms SN's evidence of conversations with the children, is of them having no interest in talking about the father at all. Since he left the family in 2003 they have had very little contact with him. They saw him a few times after Benjamin J's orders of 21 December 2006; there were some five visits to his home in P in early 2007, two hours at the Contact Service in January 2008 and a fleeting period together with Ms SN in August 2008. For them, family is made up of the people they see as loving and caring for them; sadly, the father is not one of them. The father may genuinely believe he is the subject of constant criticism or denigration in their home and at meetings, or would be, absent an injunction. The alternative - that his absence is unremarked - may be harder to bear.
3. Nevertheless, I do propose to make an injunction broadly as sought by the father and the independent children's lawyer. It will not refer to "the father's faith"; whatever the evidence before Benjamin J which warranted that inclusion, there is no evidence before me which could render the term meaningful.
4. By mandatory injunction Benjamin J had required the parties to do "all acts and things necessary to encourage the children to speak positively to and about the other parent and to discourage the children from speaking negatively to or about the other parent." Nothing in the evidence satisfies me of the usefulness of a continuing order in these terms. In these circumstances there is no need to consider the enforceability of such a broad admonition.
5. Nor am I persuaded the court should enjoin the parties from discussing the proceedings, or allowing anyone else to discuss them, in the children's presence. It is true that the children need relief from the stress of litigation but they are entitled to be told the outcome of the litigation. They are members of a large and busy household and courts need to be mindful of the limits of judicial interference. An order will preclude denigration of their father or discussion of his departure from the faith and his lifestyle; anything said about the proceedings must be consistent with that. I add that I am not persuaded that the mother or the family members who gave evidence before me have any current interest in speaking about the father, at all.

1. The mother will be required to advise the father as soon as practicable of any serious illness or injury suffered by J and C and orders will provide for the father to have access to information about the children's educational progress, as foreshadowed.

1. As noted, the father presently maintains the two contravention applications. No submissions were sought as to their disposition. After an interval in which the parties can consider this decision, those applications will be listed for submissions. The father may elect to withdraw them, the mother may seek other orders. Some evidence referable to 26 May 2007 and 2 June 2007 was before the court. As the Full Court made clear when determining the respondents' appeals against the earlier proven contravention, it is the mother alone who had the obligation to comply with the order providing for the children to spend time with the father and her capacity to do so was, on the evidence before me, impacted by her health and, on one occasion, hospitalisation. The father is aware, from his own success on such an application, that costs consequences can follow judicial determinations. He would be wise to seek legal advice prior to those applications being listed for submissions on disposition.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown.