FEDERAL MAGISTRATES COURT OF AUSTRALIA
HELMICK & JAMESON	[2010] FMCAfam 60	

FAMILY LAW – Parenting – with whom the child should live – mother living in Melbourne, father in [G], NSW.	

Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4)	

Applicant:	MR HELMICK	

Respondent:	MS JAMESON	

File Number:	AYC 204 of 2008	

Judgment of:	Henderson FM	

Hearing dates:	1, 2, 3 & 4 December 2009; 11 January 2010	

Date of Last Submission:	11 January 2010	

Delivered at:	Parramatta	

Delivered on:	29 January 2010	
		
REPRESENTATION
Counsel for the Applicant:	Ms Boyle	

Solicitors for the Applicant:	Adams Leyland	

Counsel for the Respondent:	Mr Howe	

Solicitors for the Respondent:	Pearsons Barristers and Solicitors	

Counsel for the Independent Children’s Lawyer:	Mr Thistleton	

Solicitors for the Independent Children’s Lawyer:	Robb & Associates Solicitors	

ORDERS
(1)	All previous Orders made in relation to [X] born [in] 1999 (“the child”) be and are hereby discharged.
(2)	The parents have equal shared parental responsibility for the child.
(3)	The child to live with the father.
(4)	The child to spend time with the mother:
(a)	Each term school holidays from 5:00pm on the day school breaks up until the last Friday at 12:00 noon;
(b)	For the fourth weekend of each school term from 5.30pm Friday to 5.00pm Sunday;
(c)	For one half of the Christmas School holiday period from 12:00 noon on the day which is the mid point day of the holiday period until 12:00 noon on the last Friday of the holiday period in 2009 and each alternate year thereafter;
(d)	For one half of the Christmas School holiday period from 5:00pm on the day school breaks up until 12:00 noon on the day which is the mid point day of the holiday period in 2010 and each alternate year thereafter;
(e)	At any time the mother gives the father 5 days notice that she is available to spend time in the [G], NSW area;
(f)	At all other times as agreed between the parents.
(5)	For the purposes of Christmas School holiday visits the holidays commence on the day school breaks up and concludes on the last Friday of the holiday period.
(6)	For the purposes of changeover the parties shall meet at the paternal aunt, Ms L’s home at [omitted].
(7)	The child be permitted telephone communication with the parent he is not in the care of at all reasonable times.
(8)	The father shall authorise any school that the child may attend to provide to the mother copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the mother of any emergency, remedial or correctional treatment required by the child as soon as is practicable, and that each parent is entitled to attend school events, parent/teacher appointments and the like.
(9)	The father shall authorise any treating medical practitioner, hospital or medical practice that the child shall attend from time to time to provide to the mother any information regarding the child. The father to ensure that Dr K is the child’s General Practitioner at all times unless there is an emergency, and that Dr H be the child’s treating specialist.
(10)	The father and mother keep each other informed of any sickness or illness of the child.
(11)	Neither parent, nor their agents and servants shall denigrate the other party to the child, in front of the child or within the child’s hearing.
(12)	The parents shall keep each other informed of their contact address and telephone numbers at all times.
(13)	The parents shall notify each other within 7 days of a change of address and within 48 hours of a change of telephone number.
(14)	The father within 28 days connects a pre-paid internet service with a webcam at his home such that the child may communicate by internet or skype with his mother on a daily basis.
(15)	The father maintain [X]’s present counselling until either the “Seasons for Growth” programme becomes available or his current counsellor directs counselling to cease.
IT IS NOTED that publication of this judgment under the pseudonym Helmick & Jameson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Parramatta	
AYC 204 of 2008
MR HELMICK	
Applicant

And

MS JAMESON	
Respondent

REASONS FOR JUDGMENT
1.	The matter of Helmick and Jameson is a parenting application concerning with which parent [X] born [in] 1999, should live.  The father proposes the child continue to live with him in [G], NSW where he has always lived. The mother proposes the child live with her in Melbourne where he lived for some weeks in mid 2008.  There is no issue between the parties as to the time [X] should spend with his absent parent. 
2.	Ms Boyle of Counsel appeared on behalf of the Applicant Father, 
Mr Howe of Counsel appeared on behalf of the Respondent Mother, and Mr Thistleton of Counsel appeared for the Independent Children’s Lawyer.
3.	The matter was listed for Final Hearing in Albury on 28 and 29 April 2010. The matter was not reached in that circuit and was listed for hearing for three days on 1, 2 and 3 December 2009 with priority.
4.	On 1 December 2009 the mother made an oral application for an adjournment as Counsel her solicitors had instructed was unavailable and her solicitors had been unable to arrange for other Counsel.  That application was refused and the mother’s solicitors were directed to try and arrange Counsel.  The matter was stood over to the following day.
5.	On 2 December 2009, Mr Howe of Counsel appeared for the Respondent Mother and the hearing commenced. On 4 December 2009 the matter was adjourned part heard to 11 January 2010 to the Parramatta Registry with the parties appearing by video-link from Albury.
6.	The Court is grateful to Mr Howe who conducted the matter for the mother in a thorough and professional manner. 
Evidence
7.	The evidence was as follows.
8.	For the father I read:
a)	His Affidavits filed 2 November 2009 and 8 April 2009.
9.	The father tendered the following exhibits:
a)	Father’s Exhibit 1: Certificates of participation “Building Connections Parenting Seminar”.
b)	Father’s Exhibit 2:  Letter dated 25 November 2009 from Ms H at Centacare regarding the difficulties the father experienced in getting [X] into the “Seasons for Growth” course as recommended by Ms Blanch.
c)	Father’s Exhibit 3:  Letter from Greater Southern Area Health from Ms O concerning her interviews with [X] on several occasions regarding the breakdown of his parent’s relationship and his sadness and ambivalence towards both his parents.
d)	Father’s Exhibit 4:  Letter from the father to the Melbourne Magistrates Court in relation to his non-appearance when a Final Intervention Order was made against him in August 2008.  The letter advised the Court that he would not be appearing and that [X] was in his full-time care.
10.	For the mother I read:
a)	Her Affidavits filed 16 November 2009; 1 April 2009, 
24 September 2008 and 18 July 2008.
11.	The father and the mother were each cross-examined. 
12.	Ms Greer Blanch prepared a family report.  That report was marked Court Exhibit 1 and was tendered into evidence by consent.
13.	Ms Blanch was cross-examined.
Short Chronology
14.	The father was born [in] 1966 and is currently 43 years of age.
15.	The mother was born [in] 1977 and is currently 33 years of age.
16.	[In] 1996, the mother’s child [Y] was born. [Y]’s father is Mr T.
17.	The parties commenced a relationship in 1998 and commenced cohabitation in 1999.  [Y] resided with them.
18.	[X] was born [in] 1999.
19.	The parties initially separated in 2005 following an atrocious incident which I will refer to later.  The parties reconciled a short time later.
20.	The parties finally separated in February 2006 and physically separated in May 2006 when the mother left the home with her sons. 
21.	Since separation [X] spent regular and consistent time with his father during the week, on weekends and in holidays.  [X]’s time with his father in many ways fitted in with the mother’s part time work and these parents co-operated in the care of their son which allowed each of them to maintain employment. 
22.	In April 2008 the mother moved to Melbourne with [X] in the knowledge that the father was opposed to this course.  [X] did not speak to or spend time with his father for over three weeks and the mother did not tell the father when she left or where she and [X] were living. 
23.	[Y] remained in [G] and went to live with his father Mr T.
24.	On 15 May 2008 the father filed an Application in the Federal Magistrates Court for [X] to be returned to the [G] area.
25.	That Application was heard on 21 July 2008 and orders were made for the child to be returned to [G].  Orders were made for the care of the child should the mother remain in Melbourne or return to [G].
26.	The mother remained in Melbourne and the child has lived with the father in [G] since this time.
27.	[X] has spent time with his mother, in accordance with the initial orders and the amended orders negotiated by the parents by consent, in both Melbourne and in [G]. 
Proposals
The father’s proposal
28.	The father’s case is that the child should remain in [G] living with him, close to his paternal and maternal family and in particular his brother [Y].  [Y] lives with his father, Mr T.  Mr T and the father live in close proximity to each other and it became clear, as the evidence unfolded, that the father has ensured that [Y] and [X] spend significant time together.  They spend most mornings together at the father’s home and some afternoons and have sleepovers as well.
29.	When the mother comes to [G] to see her sons she stays with Mr T.  The father said she and he seem to be able to work things out for [Y]. 
30.	The father is concerned that if [X] lives with the mother in Melbourne [X] will not only miss him, he will miss the paternal family, he will be separated from his brother, he will have to change schools and that this will cause [X] further upset and instability in his young life and it is not in his best interests for this to occur.
31.	The father asserts the mother’s conduct in her unilateral move to Melbourne does not auger well as to her commitment to the child having a meaningful relationship with the father in the future.
32.	He also asserts that the mother has had a history of poor mental health, suffers from epilepsy and is not as emotionally stable as he is.  This is in part due to the mother’s lack of family support in contrast to his supportive family.
The mother’s proposal
33.	The mother’s case is far more extensive.  She makes significant criticisms of the father as man, partner and parent in her Affidavits and in her oral evidence before me.
34.	The mother asserts the parties’ relationship was marred by significant domestic violence perpetrated upon her by the father and at times witnessed by the children both during the relationship and post separation. 
35.	The mother says the father was controlling and manipulative of her during the relationship and after separation.  Although the mother and the father had been separated for almost three years before she made her move to Melbourne, she said she still felt imprisoned by the relationship and unable to get on with her life because of the father’s conduct and attitude towards her whilst in the [G] area. 
36.	The mother is most concerned that the father’s presentation in Court and conduct since [X] was returned to him is nothing but a performance designed for the hearing.  She asserts his presentation and conduct does not reflect his real view of the mother and that once the hearing is over he will not support [X]’s relationship with her or [Y]. 
37.	This is an important assertion upon which I must make a finding as the father’s presentation and behaviour over the last 18 months is contrary to the picture the mother presented of the father in her affidavits and her oral evidence and the view formed by family report writer, 
Ms Blanch. 
38.	The mother points to the following to support her claim:
(1)	The father does not inform her of matters concerning [X]’s health.  The says the father did not immediately inform her on the Sunday when [X] first complained of loud and slow voices and waited until Monday to tell her he was being assessed.
(2)	The mother further complained that the father did not accurately tell her all of [X]’s symptoms until the Tuesday. 
(3)	The mother has noticed aggression in [X]. He has been aggressive towards his brother and when with her. The mother has noticed aggression at the home.  [X] has been disciplined at school for poor behaviour in the playground.  He was in a fight at a swimming pool over floaties.  The mother asserts this is because the father is a poor role model for the child, himself being a violent and angry man and is either not aware of or not in tune with the needs of his son and his aggressive behaviour.
(4)	The father admitted during his cross examination that he had called the mother a “dickhead” and that has occurred once in front of the child, that he has called the mother a “dickhead” in front of his family and friends and that has been of recent times. The mother says this bespeaks of his negative attitude towards her as a parent and thus the Court would be entitled to infer that the father’s commitment to ensuring the child had a positive relationship with his mother is at risk if the child is in the father’s care.
(5)	The Court expert formed a view that the father may also be putting on a show. 
The Independent Children’s Lawyer’s proposal
39.	In submissions at the closing of the case the Independent Children’s Lawyer submitted that [X] should remain in his father’s care.  That  was the recommendation of Ms Blanch at paragraph 41of the report which is:
	If as the practical situation dictates, [X] must live with one parent or the other then it would be important to consider the capacity of Mr Helmick and Ms Jameson to meet his various needs… and to support his relationship with the other parent. It seemed that [X] is emotionally secure in his relationship with both of his parents and that both Mr Helmick and Ms Jameson are capable of meeting his day to day needs…Given that [X] is now apparently settled back in [G] living with his father and attending school, it would be best not to unsettle him again unless there was a compelling reason to do so. Given that Mr Helmick will be a critical role model to [X] of acceptable male behaviour, the Court may wish to particularly consider Mr Helmick’s view of 
Ms Jameson’s concern about [X]’s propensity for aggression and his role, if any, in her allegations of family violence. Furthermore the Court may wish to consider Mr Helmick’s demonstrated support of [X]’s relationship with his mother. (emphasis added).
40.	At paragraph 42 Ms Blanch states:
	It would not be in his best interests to live with a parent who is capable of behaving abusively or who undermines the capacity of the other parent to provide for [X]'s welfare.
41.	Despite the plethora of issues in this matter, ultimately it was submitted to me by Mr Howe the decision I must make will come down to whether there is as Ms Blanch says, “ a compelling reason” to change care arrangements for the child. The mother asserts there are many such compelling reasons.
42.	The matter came before the Court as a result of the mother’s subterfuge in unilaterally removing [X] to Melbourne knowing his father did not agree with that course. 
43.	In her oral evidence the mother said at the time she had decided to move both boys were living with her.  She asked [Y] whether he wanted to come to Melbourne to live with her or stay in [G] with his father.  [Y] said he wished to stay in [G] and he went to live with his father.  The mother said she did not ask [X] this question but told him that they were going to go to Melbourne for a trip.
44.	The mother then said she told [X] they were permanently going to live in Melbourne on the day they left.  [X] had no time for goodbyes from his school or his family.  He was removed from [G], the only home he had ever known, his father, paternal family and from living with his brother.  [X] did not speak to or see his father for three weeks.  The father was understandably frantic.
45.	This event occurred three years after physical separation.  It was not action taken at the time of separation or shortly thereafter, or as a consequence of an event of harm or fear that may have triggered a flight reaction.  It was a deliberate and well planned action taken after much thought because the mother had thought of the consequences of her move for [Y] and asked his opinion and followed his opinion.
46.	The mother formed a view that she would be better off living in Melbourne. She also believed [X] would be better off living in Melbourne with her even though he would be separated from [Y] and his father.  She must also have believed it was better for [Y] to remain in [G]. 
47.	The mother freely admitted in cross examination by Ms Boyle that she did not tell the father because she knew that if she did, he would not have agreed.  The mother carried out her actions in circumstances where there had been correspondence entered into between lawyers for the father and the mother about care arrangements for [X], where she had obtained legal advice, although we do not know what that advice was, and with the knowledge that the father would not agree with his son being removed to Melbourne. 
The Parents Evidence
Communication and [X]’s Health
48.	The father as the Applicant gave his evidence first.
49.	Events had occurred since the parties had filed their Affidavits concerning [X]’s health.  The last time the father had a discussion with the mother concerning [X]’s care was in relation to the epilepsy diagnosis. 
50.	The father gave his evidence on this issue orally.
51.	On Sunday 22 November 2009 the father said [X] approached him and said he had a problem.  The father said:
	What’s wrong mate? Is something up, are you okay?
52.	[X] said to him:
	When someone talks dad, it sounds really loud and sounds like they talk really slow. I’ve been feeling like this for about a year but it is happening more often now.
53.	The father gave evidence that he said to his son:
	It’s okay mate. You just take it easy. We’ll go to the Doctor tomorrow.
54.	The father sent [X] to school the following day, Monday 23 November 2009.  However, [X] was not well and the school called the father and the father collected him early.  The teacher said that she thought he was fine but [X] told the father “the voices are really loud dad and they’re talking really slow”.
55.	The father took [X] to [G] Hospital which is where the father had made an appointment for his son and told the nurse what had happened.  The nurse took his blood pressure, he had a urine test, and the Registrar of the hospital came and spoke to the father.
56.	It seems clear from the father’s evidence that the Doctor at the [G] Hospital thought [X] was telling the father stories.  The father, to use Mr Thistleton’s words, became an advocate for his son.  The father told the Doctor [X] had had convulsions when he was young and that he had been to see Mr H, paediatrician, and wanted to see him again.  The father was concerned that the child could have epilepsy given that his mother was an epileptic.  The father insisted that there be an ECG carried out and a blood test.  This occurred on Tuesday.
57.	The test results were sent to Dr H.  The father and [X] saw Dr H on Thursday.  Dr H knows the mother and he rang her with the diagnosis of mild epilepsy before the father could speak to her on Thursday. 
58.	Dr H said it was a mild case of epilepsy and that they were lucky to pick it up so quickly.  Further, when [X] had had the two convulsive fits as a baby they were epileptic fits.  Dr H said that he would put [X] on a program, weaning him onto his tablets, [X] should have a check up in three months and that if there were any side effects the father was to contact the Doctor immediately.  The father was told to monitor [X] daily. 
59.	The father rang the mother on Monday after the attendance at [G] Hospital to tell her what had been happening with [X] since Sunday and what was to happen in the coming week.  The father said:
	I rang the mother as soon as we got back from the hospital and when I had information to tell her that is the two tests would be carried out the next day.
60.	He told the mother when the ECG would be and when the appointment with Dr H was to be namely the following Thursday.  He spoke to the mother after [X] had had the ECG on Tuesday and he rang her again after he had the appointment with Dr H.
61.	The father said the mother had asked him on the telephone to make sure he asked Dr H whether [X]’s seizures could become serious seizures such as she had experienced.  The father said he gave the mother all the information he had been given about weaning [X] onto his medication – half a tablet for 5 days, then half in the morning and half in the evening for 5 days then 1 in the morning and half in the evening for 5 days and then one tablet morning and night.  Within 15 days [X] would be on the full dosage.
62.	The father said the pharmacist gave him information on the gradual weaning up of the medication for the child over a period of 15 days.  He gave a copy of that information to the mother when he saw her.
63.	The father was cross-examined at length concerning what the mother asserted was the father’s irresponsible conduct on Sunday towards her as parent when [X] first told him about the voices.
64.	The father said that when [X] spoke to him about the loud voices being slow he thought it might be epilepsy and that epilepsy had been one of his concerns for [X] ever since he had convulsions as a baby.
65.	The father said he did not call the mother straight away and that he was watching [X].  It was put to the father that the mother was experienced in epilepsy, she being an epileptic herself, had he considered asking for her opinion.  The father said he did not.  The father said he rang the mother twice on the Monday after he had gone to the [G] Hospital to tell her what had happened, but not on the Sunday.
66.	The mother asserted that the father did not tell her about the Tuesday appointment until Tuesday morning and did so by way of an SMS message.  The father said he told the mother on Monday of the appointment on Tuesday, and that on Tuesday morning he confirmed by sms message that the appointment has been scheduled earlier that day.  The mother had not intended to be present at the testing and there is no criticism of her.
67.	The father denied speaking rudely to the mother and saying to her “what do you want to know for?” and hanging up on her. 
68.	The father said he told her on Monday that he had an appointment in [W] for the ECG and blood tests and then he was to contact Dr H two days later on the Thursday to find out the results of the test.  He admitted he did not tell the mother what [X]’s symptoms were on Monday or that he had not been well at school on the Monday.
69.	[X] heard the conversation between the father and the mother on Monday afternoon.  The father repeated that he said to the mother:
	Don’t panic. I’m taking [X] for an ECG at [W] Hospital at 3:30 on Tuesday. I don’t know what the diagnosis will be. I will wait to find out and get in contact with you. I’ve got an appointment with Dr H in two days time.
70.	The father said the mother became upset and said “Put [X] on” which he did.  The father said that he knew that when he told the mother what had happened she would be upset.  He found it difficult to tell her these things because he knew she would be upset.
71.	Mr Thistleton asked the father “What? She would be upset at you?” The father said this:
	No. Not at me. But she suffers from the same thing and it’s a sad thing and it has been on our minds for a long time.
72.	I found the father’s evidence sincere.  He was quite emotional and he repeated on many occasions throughout his evidence how sad it is that both the mother and the child have epilepsy.  It really has come as a blow to both the mother and father that [X] too may suffer the same disability as the mother, although at this stage it does not appear to be as severe as the mother’s.
73.	On Tuesday the father said the mother also rang him.  She wanted to know about the Doctors and everything.  The father told the mother:
	I’m seeing Dr H in two days. I won’t know until I see him and I will call you when I know.
74.	The father said he had a copy of the referral and he read out all the details to the mother.  The father said that he was very emotional at the time.  The conversation was a bit heated and he became upset when the mother rang him back.
75.	The father was asked whether he was frustrated with the mother as he had told her what was happening and she kept ringing him back and cross examined him.  The father said he was a bit frustrated because:
	I was getting ready to leave for the appointment and [Ms Jameson] kept on and on at me about what was happening.
76.	The father then said he did not think [X] saw him get upset or emotional or short with the mother.  I find to the contrary.  [X] would have.  Everyone was upset at this time.
77.	The father said that he did not want [X] to have any complex about having epilepsy and that is an important issue for the father that [X] will live as normal a life as possible even with this diagnosis.
78.	The father said he had not noticed any changes in [X] over the last twelve months, even though [X] had said he had been having these symptoms for about 12 months.  The father said he is quite vigilant about it.  He has seen what happens when the mother has a fit – her eyes become small and she becomes quiet and still.  The father said he looked out for similar symptoms with [X].
79.	The father said he believed the school had rung the mother and told her about his symptoms at school on Monday and so he did not tell her this when he spoke to her on Monday.  On Tuesday he told her that [X] said he had been dizzy, hearing loud voices and slow speaking. 
80.	It is fairly clear that the father did not tell the mother about [X]’s symptoms on the Sunday or his symptoms at school on Monday when he rang her on Monday.  I accept he did tell her those matters on Tuesday.
81.	The mother believes the father did not behave appropriately and should have informed her immediately on Sunday when [X] described his symptoms.  The mother was in Melbourne, [X] in [G].  The mother could not get to him and knowing what his diagnosis may mean the mother would have been distraught as was the father. 
82.	The mother confirmed that she and the father had been concerned about [X], especially when he had the two convulsions as a baby. However, he had a clear ECG at that time and the mother said she had not been worried about epilepsy since that time.
83.	[X] had not complained to his mother of any symptoms either.
84.	The mother agreed that during the first phone call the father made to her on Monday they were both emotional and that the father did say to her not to worry or panic, that he had been to hospital and had a referral to find out about epilepsy.  The mother said the father then said:
	I don’t want to tell you anymore for all the things you have said about me.
85.	It was put to the mother that the father never said those words.  The mother said he did.  I do not accept the mother’s evidence for reasons that will be become apparent later.
86.	The mother agreed that she then asked to speak to [X] and the father put the child on the telephone.  [X] told her his heart had been checked, his blood had been checked, his urine had been checked and he was going to see Dr H.  The mother said she asked [X] what happened and [X] told her the voices changed, got louder and softer, and they slowed down.  The mother was very quiet whilst giving this evidence.  It was clear that the mother was reflecting on her own experiences of epilepsy as she said “It was the same for me”.  The mother said that she then got on to speaking with [X] about “normal stuff”. The mother was understandably emotional at this point as was the father.
87.	The mother said that the father told her the child was going to have an ECG at [W] Hospital on Tuesday, and that he did not tell her this on the Monday.  The mother admitted that the father gave her a pamphlet regarding the drug [X] had been prescribed and that she had spoken to Dr H on the Thursday after [X] had seen him.
88.	The mother agreed that all that could have been done for [X] had been done.  The mother said that there are other things that need to be done in the future.  She is happy for the child to continue to see Dr H, and she would like the father to take the child to see Dr K, a General Practitioner who himself is an epileptic and with whom she has a good relationship and she would be very comfortable with that.
89.	The father said he was more in tune with the epilepsy than the mother as he had observed the mother when she had a fit.  I do not share that opinion.  However, the father has always been concerned about [X]’s vulnerability to epilepsy and has been vigilant for any signs.  He was sure the symptoms his son described to him were epilepsy and thus would not be brushed off by the doctors and insisted further test be undertaken for his son. 
90.	When the mother was asked had she been concerned for epilepsy and [X] she said “No”.  The father said it had always been a concern for him. 
91.	The father has managed [X]’s epilepsy well.  He has informed the mother of the steps he took, appointments in the future, medication he must take and has agreed to have [X] seen by the doctors the mother is comfortable with being Dr K and Dr H.  The father has informed himself regarding this illness and is well equipped to deal with it. 
92.	Thus, although I do not accept the father is in a better position than the mother to deal with [X]’s epilepsy they may well be in the same position.
93.	It was put to the father that he had not told the mother about an incident when [X] went to the hospital after being kicked in the testicles.  The father said he had not told her because at that time he did not think it was that important.  However, he said the “Building Connections” program he attended had taught him that it was important to let the other parent know matters of concern.
94.	The father said he had attended this course after he filed his Affidavit. He said this course had taught him to give up the fight with the other parent and concentrate on what was important – the child.  It was a three hour course.
95.	The father admitted that he had never spoken to the mother about taking [X] to see Ms O.  The father said he realised now that it was important for the mother to know about these things and it is good for the mother to know what is happening with her child.  The father said he realises this because he knows that he would like to know these things if the roles were reversed.  He said that the course helped him understand that what is important to him is also important to the mother.
96.	The father admitted that he has made mistakes and not told the mother important things and he admitted he should have told the mother on the Monday when he rang her about [X]’s symptoms and not left it until the Tuesday.
97.	The father said he would approach this event it in a different way now if he had his time over.  He would ring her straight away and try to explain to her what was happening, if she began to yell he would halt the conversation and ring her back later.  He has learnt that if there is conflict, one parent has to stop the conflict and he is the parent who will stop the conflict.
98.	The father has attempted to enrol [X] in the “Seasons for Growth” course as recommended by Ms Blanch.  This is a school based course that is not yet offered at the school [X] attends.  The father understands that this is a grief and loss program which he believes is important for his son. It is a constant theme throughout this hearing from both the mother, father, and from Ms O’s letter, Father’s Exhibit 3, that [X] is sad at times and misses his mother.
99.	As the course is not yet available the father has taken [X] to the Greater Southern Area Health Service for counselling with Ms O.  It clear that Ms O has also tried to have [X] accepted into the “Seasons for Growth” program, but this simply is not available at this time in regional Australia.
100.	The father is attending counselling himself.  He has his first attendance on 7 December 2009.
101.	Father’s Exhibit 2 shows that [X] is currently on the waiting list for the “Seasons for Growth” course in [G].
The mother’s move to Melbourne 
102.	The child had complained to the mother just before her departure for Melbourne that he had a sore tooth.  The mother had a look and saw that his gums were inflamed.  She took him to the dentist.  He was on antibiotics for two weeks and did not go to his father for that period of time.  I could not understand why he could not attend time with his father merely because he had an abscess or inflamed gums and was on antibiotics.
103.	However, the mother used this event to camouflage her plans to live in Melbourne permanently with [X].
104.	The mother said the father yelled at her when he found out about the child’s teeth, that he told her she was not doing her job properly, and that it was her job to deal with the child’s teeth.  The child’s tooth was filled.  The mother admitted that it was her job after separation, as it had been during the relationship, to take [X] to the dentist regularly. 
105.	The mother said that when she decided to move to Melbourne she gave [Y] a choice.  The mother said that she, [Y] and her friend Ms G talked the matter through together and she asked [Y] whether he wanted to live with her in Melbourne or stay in [G].  The mother said that [Y] got upset.  The mother said:
	[Y] is not like [X]. He doesn’t make friends as easily as [X] does so he decided to stay with his father.
106.	The mother said she spoke to [Y]’s father after [Y] said he would rather stay in [G], and his father agreed for [Y] to live with him. The mother discussed with [Y]’s father arrangements for her to see him during school holidays, weekend time, telephone time and the like.  [Y]’s father was going to get a webcam.  However, that has apparently not happened.
107.	The mother admitted that she did not tell the father of her move and that she covered her tracks.  She did not tell the father where or when she was going.  The mother said that [X] knew about two weeks before the move that he was going to Melbourne but not that this would be a permanent thing.  Those two weeks coincide with the time the mother kept the child from the father due to the infection in his gums. He was having telephone contact. 
108.	The mother freely admitted that she did not tell the father she was moving to Melbourne because she knew the father would not agree to [X] going.  The mother admitted she took absolutely no steps to let the father know she had moved with [X] to Melbourne.
109.	The mother admitted she did not tell [X] that they were going to live in Melbourne, just that they were going to Melbourne. The mother admitted she did that because she knew [X] would tell his father.  The mother said she told [X] the morning of the move that they were going to live in Melbourne permanently.
110.	The mother immediately went to see a lawyer on Monday morning, and stayed at a friend’s house until she obtained her own accommodation which she did as soon as she could. 
111.	The mother admitted that she did not allow [X] to speak to his father for three weeks because she was afraid of what the father would do and she did not want to lose her son.
112.	The mother said that she was scared when she moved to Melbourne.  The mother had never lived anywhere other than [G]. 
113.	The mother sought an Intervention Order against the father in Victoria which was a further iron in her fire to prevent the child living with the father.  The mother said she obtained that order as she wanted to make sure she had an Intervention Order in Victoria as well as the existing one in [G].  The mother set about a course of conduct to ensure that the father would have difficulty spending time with the child.
114.	It was clear that the first thing the mother did when she went to Melbourne was to obtain legal advice about the Intervention Order, despite already having spoken to a lawyer in [G] before the move concerning arrangements for the care of [X].
115.	I accept that the mother did not participate in mediation in [W], and having regard to her attitude towards the father that is not surprising 
116.	The mother said she went to Melbourne because she has a network of friends there that she has known for some time.
117.	In the mother’s affidavit filed 24 September 2008 she said at paragraph 24:
	I asked both of my sons if they wanted to come with me. [X] said that he wanted to come with me whereas [Y] said that he wanted to stay in [G] with his Father.
118.	However, in her oral evidence whilst being cross-examined by the Independent Children’s Lawyer the mother said she did not ask [X], only [Y].   This is but one issue going to the mother’s credit.
119.	The mother was asked by Ms Boyle whether asking [X] if he wanted to live in Melbourne put the child in a difficult position.  The mother agreed it did.  The mother agreed the child could not say to her that he did not want to live with her and that he wanted to live with his father.
120.	Finally, after some time, the mother did agree that [X] at eight and a half years of age would have no concept of what it meant to live with her permanently in Melbourne and that any such question to him would have been unfair.
121.	In cross examination, much was sought to be made of the mother’s Response filed 18 July 2008 that “the issue of the father spending time with the child be reserved”.  I have difficulty in criticising the mother for something a Melbourne lawyer did.  It may be the way matters are dealt with in Melbourne.
122.	However, I accept the point as did the mother that to make such an application when for three years the arrangement had been that [X] had spent three days a week with his father and each alternate weekend merely because she went to Melbourne was a nonsense.
123.	What is most concerning is that in paragraph 37 of the mother’s Affidavit filed 18 July 2008 the mother states:
	I believe it is in the child’s best interests to grow up well away from the father’s influence.
124.	Nothing could be further from the truth.
125.	The mother admitted that she had no intention of letting the father know where she and [X] were living and that the father would have been beside himself for those three weeks.
126.	The mother said that she believed not letting [X] speak to the father was in [X]’s best interests.  The mother tried to justify this appalling behaviour by saying that [X] never asked to speak to his father and that the [X] and [Y] had not been seeing much of each other in [G] because [X]’s father would not change weekends to make sure that the boys were together with her.
127.	In re-examination she was asked:
	You said that you left Melbourne because the father would not change. What did you mean?
128.	The mother answered:
	Well he wouldn’t change his time. [X] was with his father Monday, Wednesday and Thursday and every second Saturday. I wanted the boys to be with me on one weekend and the boys with their father’s on the other weekend. Mr Helmick wouldn’t change.
129.	I then asked the mother:
	Did you ask Mr T, [Y]’s father, to change his weekend?
130.	The mother said she had never thought about that.  Yet she seeks to blame this father for all the difficulties she has had in [G].  She has two fathers to deal with and that can cause problems.  It was unfair for the mother to claim that this one father was the problem.
131.	In any event the mother’s response to this alleged poor behaviour by the father is to take [X] away from [Y] to Melbourne.  It makes no sense.  Again the mother’s credibility is questionable and her lack of insight into the needs of the child is at issue also.
132.	I accept that the mother needed to leave [G].  It is another issue about the child needing to leave.
133.	The mother further justified her conduct by saying the reason she left was that the father threatened that if she tried to change the arrangement he would “go for full custody”.  That makes no sense either. 
134.	To say that the father was inflexible or that these parties could not come to an arrangement for the child is not made out on the facts.  The mother had agreed that the time [X] spent with his father had been varied over the years to suit her work commitments. That is an appropriate way for parents who both work to share their parenting responsibility.  Thus parenting arrangements had been varied over the years.
135.	The mother agreed that if that father had behaved in the same way she had behaved she would have been outraged.  The mother admitted that she had seen a solicitor in early 2008 when a proposal for shared care had been put and that in February 2008 she thought that such an arrangement would be in [X]’s best interest.  Yet two months later she moves to Melbourne and the father has no idea where she or the child is for over three weeks.
136.	Ms Boyle asked the mother why she would enter into an arrangement for [X] to spend significant and substantial time with his father during the week and on the weekends if the father was not in the position to care for the child, or the grandparents were caring for the child, a situation the mother criticised.
137.	The mother answered: 
	Oh well, he stopped working and things were better.
138.	However, the father’s work position had hardly changed since the parties physically and finally separated. 
139.	The father was asked whether he thought the mother had been selfish in moving to Melbourne.  The father answered honestly “Yes”.  The father agreed he thought less of her for doing that and he believed that she was wrong to move from [G] and leave her son.
140.	There is no criticism of the mother for her decision to live in Melbourne and her clear evidence that she will in no circumstances be returning to [G].  The criticism is in her decision to spirit [X] away as she did. 
Domestic violence and [X]’s alleged aggression.
141.	The mother has concerns that [X] was showing signs of problems with anger management.  That is certainly a theme in the Family Report. Although there is very little objective evidence of this other than what the mother asserts.  There are no reports from the school save for one observation that [X] has to be aware of his behaviour in the playground which, quite frankly, could mean anything. 
142.	The father explained it that [X] and his older brother had removed bolts and screws from a piece of playground equipment.
143.	The mother reports an incident at a swimming pool where it is alleged on a hearsay basis through her friend Ms G that [X] was involved in hitting a child at the swimming pool and the father let it happen.
144.	The father was the only adult at the swimming pool on that occasion in 2009.  The father says the incident was with [Y] and by the time he got to where the boys were the incident was over.  I can take that no further.
145.	Ms Blanch’s comments of aggression in the child are only based on what the mother told her, rather than any objective evidence tendered at this hearing. 
146.	The mother’s version of events of the pool incident, namely that [X] was the instigator, came about from her friend Ms G telling her of the incident.  The mother said she questioned [Y] and [X] and they told her [X] was the aggressor.  The mother was told by Ms G that one of her friends children had been assaulted by [X]. The mother said she rang the aquatic centre and the father of the other child had made a complaint and they supported [X] as the instigator.
147.	My difficulty is that I cannot accept a version of events that the mother gives me in the absence of non–hearsay objective evidence.  The father was at the pool.  He said it was all over before he knew it had happened and that [Y] was the instigator.  That is as far as I can take that issue.
148.	It is clear that [X] can be a sad little boy at times and that he misses his mother.  However, for the mother to now assert that [X] has anger management problems because he is living with his father and his father is a poor role model is not supported on the evidence.
149.	In relation to the father he had one conviction in 1983 for a malicious and violent act.  He was sixteen years of age.
150.	In relation to his history of domestic violence and other allegations raised by the mother the father admitted that in 2005 he had been drinking, he came into the home and urinated on the bed and behaved badly.  The father said he did not remember doing it.  Since that time he has ceased using alcohol.
151.	The father agreed the he had problems managing his anger in 2005 and that is also why he stopped drinking.  He called it “that embarrassing night”.  He said:
	I just woke up in it. There was urine on the bed. It was humiliating.
152.	He was genuinely ashamed of his behaviour on that occasion. 
153.	The mother made much in her affidavit of the incident between Mr T, [Y]’s father, and Mr Helmick, [X]’s father, when [X] was but a baby.  It was the mother’s evidence that Mr Helmick had taken a baseball bat to Mr T and that Mr Helmick was the aggressor and there was an appallingly violent altercation between the fathers. 
154.	As it turned out in cross-examination of the mother, it was Mr T who was the aggressor not the father. Mr T had come to the home demanding to see his son and he was the aggressive one on that occasion.  The father acted to protect the mother at that time. 
155.	Now the mother says Mr T, [Y]’s father, is a good father, there are no difficulties with him and [Y] lives with him full-time.
156.	The father agreed that when he gets upset he does get angry at times.  There was some force in the argument that the father was still controlling of the mother whilst she was in [G].  That was one of the mother’s concerns – that although they were physically separated she still thought the father had control of her.  It was raised by the father in the Family Report at paragraph 17 that he was concerned what men were around the mother’s house and who was looking after the children when the mother was at work.
157.	The father could not see the hypocrisy in his position that he had other people care for the children when he went to work, namely his family, yet was critical of the mother for making similar arrangements with friends and others when she needed to work. 
158.	I accept the mother’s concerns were genuine on this issue.  Her view that the father was controlling of her and that she felt she could not get on with her own life in [G] is genuinely held by her.
159.	Ms Blanch points out in her report the mother is happier and more content living in Melbourne and thus she has no intention of returning to [G] no matter the outcome of these proceedings. I accept and understand her position on this issue. A return to [G] would have devastating consequences for her mental and emotional health and well-being. That in turn would have a negative impact on her parenting of [X] and [X] himself in the long term. 
160.	The father said he has not been violent towards the mother since that time and he has not been angry towards her since that time although he has been angry with her.
161.	The father agreed that he and the mother had disagreements and yelling matches, but there has been no violence since 2005.  He agreed that when they were together he did get angry.
162.	The father agreed the mother would be intimidated if he screamed at her.
163.	The father also said that since the parents had separated he has not had anger management difficulties because he is happier being separated from the mother. 
164.	The mother asserted the father was banned from a gym where he trained in Karate due to his speaking poorly to a woman who worked there.  Again, there was no objective evidence and nothing further than what the mother said.  The father admitted that he and the woman had some sort of disagreement.  It was her gym so she banned him for a period of time.
165.	The mother told Ms Blanch at paragraph 27 she could provide evidence to the Court to “defend her allegations” of domestic violence at the hands of the father over a long period.  She said to Ms Blanch her evidence would be hospital records showing her attendances due to suffering anxiety, mental health issues, her distress at her domestic situation, police records of her calls for assistance including calls by [X], scars to her body from Mr Helmick’s violence including stitches on her hand and a “hole in her stomach”.
166.	This evidence did not emerge.  
167.	This is a significant gap in the mother’s evidence and it has had the following consequences.
168.	Ms Blanch says at paragraph 26 of her report:
	Their stated relationship histories were difficult to reconcile. That is, there was an air of implausibility in Mr Helmick's easy-going and upbeat presentation and an undercurrent of hostility in 
Ms Jameson's presentation. It was very difficult to be convinced that Mr Helmick and Ms Jameson would in practice be able to share parental responsibility of [X]. Given that [X] is likely to live with one parent and be geographically distant from his other parent, of particular concern is the likelihood that [X]'s absent parent will be largely excluded from his upbringing and not informed about relevant issues.
169.	Ms Blanch then went on to describe what the mother told her was the abuse she had suffered at the hands of the father and the evidence she would present.
170.	The father said he was disgusted by the allegations he had been violent and abusive towards the mother.  But he has been.  The incident in 2005 was a disgraceful incident, frightening to the mother and the children.  The father admitted same in cross examination however he was not forthcoming with the Family Consultant. 
171.	The mother denied she had painted a scene of domestic violence of the father against her to assist her case as the father asserted.  However, apart from the incident in 2005, the matters the mother raises are not made out.  The mother had to admit that Mr T was the aggressor in the baseball bat incident and that an AVO was taken out against him.  Once again I became concerned as to the mother’s veracity and recreating history.
172.	The mother has not produced evidence to support her history of ongoing violence against her by the father.  Further, some of the violent incidents the mother pleads to and for which she lays blame on the father were violent incidents she or Mr T, [Y]’s father, were the instigators of.
173.	The mother was the aggressor when she came to the father’s home to confront him about having an affair or a sexual relationship with her sister’s husband in 2008.  She left the children at her mother’s home for the night on that occasion yet now complains that the father and [X] visit this same grandmother. 
174.	Her conduct was not child focussed and her decisions on that night bespoke of her needs not the boys needs.  The police took no action at the time. 
175.	The mother was asked about her allegations of physical, emotional and verbal violence and abuse the father engaged in during the relationship. The 2005 incident is clear and admitted.  It was an appalling incident and the father behaved in a disgraceful manner.  The parties reconciled after that and the father ceased drinking alcohol.
176.	The father described the incident where the mother threw a plate of food over his head when they were still together.  This was a violent incident where the mother alleged he held her over the sink.  They clearly had an argument at this time which would have been frightening for the children.  It is not re-told by either child to Ms Blanch.
177.	The mother was asked what incidents since 2005 of physical, emotional or psychological abuse has the father perpetrated.
178.	The mother said:
	He’s put a cigarette out on my back, he spat at me, throws rubbish at me and is verbally abusive towards me.
179.	It became clear that [Y]’s father brought an assault charge against the mother in May 2007.  The mother said that [Y]’s father was found to be a liar.  This is the same man that [Y] now lives with.
180.	However, from the police reports which were put to the mother, that is not the truth. The mother was the aggressor on that occasion and [Y]’s father did not pursue the charges.  The police were called due to Mr T’s and the mother’s conduct.  It had nothing to do with the father.  The mother had to admit this.  It is not what her affidavit portrayed or what she told Ms Blanch. 
181.	The mother gave evidence about an incident that arose following a dispute over the time Mr T was to collect [Y].  It was put to the mother that she had kneed Mr T in the groin and hit him in the face.  The mother said “that was thrown out of Court”.  It was put to the mother that the police reports show that there was bruising on Mr T’s face the next day and that it was Mr T who said he did not wish to pursue the matter.  The mother then said this:
	Mr T (Mr T) said to the police officers that this wasn’t true and he dropped it.
182.	It is clear that Mr T dropped the charges and that it was the mother who was the aggressor in May 2007.  Not the father and not Mr T.  Mr T may have behaved badly but the mother was the aggressor. 
183.	There were two incidents with [X]’s father in 2008.  The 19th January 2008 and the 2nd February 2008.  The mother had allowed the child to grow a rat tail and have his ears pierced.  The father objected to this.  The mother made out that the father was the aggressor and she called the police.  However, the police reports are clear that it was the father who called the police and that the father had asked the mother to leave his home.
184.	On the 2nd of February 2008 the mother said her sister Ms D had thrown paint all over her car or maybe it was her niece [Z].  The mother confronted the father about all this and an incident ensued.
185.	The mother alleges that the father spat on the mother in January 2008, two months before she left Melbourne. That occurred because the mother told the father that [X] was not going to stay at his house.
186.	The mother says the burn with the cigarette was at final separation.  The mother said that the father was harassing her.  She said she took [X] around to spend time with him and that the father jammed her into the door, looked her in the face and put a cigarette out on her back.  The mother said [X] witnessed this.
187.	The mother’s allegations that the father burnt her with a cigarette are not supported by the evidence from police records read out in Court.  The police records state the burn was not consistent with the mother’s allegations of a deliberate burn.  The father said he accidentally touched the mother with his cigarette as he was trying to shut his door and prevent her from entering his home after he had repeatedly asked her to leave. 
188.	All the incidents the mother reports post-physical separation is as a result of the mother coming to confront the father. 
189.	Having regard to the mother strong love and affection for [X] I find it hard to reconcile her allowing the child to spend significant and substantial time with a man who is as violent as she has portrayed him to be.  There is an inherent inconsistency in her words and her actions which I cannot explain.
190.	Ms Blanch re-tells the mother’s description of Mr T, [Y]’s father, in paragraph 29 of her report:
	she portrayed Mr T as "a good father" with whom she now has reasonable communication. Perhaps somewhat contradictorily, she mentioned two significant deficits in his parental supervision, said that he had had not paid child support for 11 years and that he had been a somewhat uninvolved father.
191.	Not only is the mother’s description of Mr T now difficult to reconcile with this past neglect of [Y], it is difficult to reconcile with him being the person who attacked the mother and the father with a baseball bat when he was unable to see his son when he wanted to.
192.	Yet in her affidavit and oral evidence the mother argued that the father had been the aggressor at this time.  The police notes paint a very different picture.  Mr T was the aggressor and the father was protecting the mother and both children. 
193.	Ms Blanch reports that:
	Although she said Mr T had harassed her some years ago for reconciliation, she did not say that he had been violent to her.
194.	I do not accept that evidence.  Mr T has been violent.  The police records demonstrate this.  I have become most concerned regarding the mother’s lack of veracity as a history teller.
195.	On the other hand the father did not admit to Ms Blanch his violent and poor behaviour in 2005 in the presence of the mother and children. However he did so in Court and in his affidavit.
196.	Given that I have formed a view that the mother’s allegations of violence perpetrated upon her by the father save for that in 2005 are at best embellished and at worst just not true, I can understand why 
Ms Blanch had some difficulty with the mother’s hostility to the father, her description of significant family and domestic violence perpetrated against her by him and witnessed by the children with the father’s somewhat easygoing and upbeat presentation. The conundrum 
Ms Blanch faced is solved. 
197.	The mother is hostile to the father as he has prevented [X] living with her in Melbourne.  I accept this is a source of pain and hurt for her and that she genuinely believes such an arrangement would be in [X]’s best interests.
198.	The other difficulty I have is that if the father was the violent man the mother portrays him to be I do not see [X] would be doing as well as he is. 
199.	[X] is a reading well above his chronological age, he presented at the interview with Ms Blanch as attached to and comfortable with both his parents, and apart from one incident of poor playground behaviour is a child doing well at school.  He is sad at times and he misses his mother.
200.	For the mother to suggest that any issue [X] is having is due solely to him living with his father and witnessing domestic violence is not made out on the evidence.  There is no objective evidence of [X]’s “angry side”, as the mother calls it.  There is no evidence to support the mother’s allegations of the father’s continued poor behaviour such as he displayed in 2005 towards her or in the presence of the child. 
201.	There is evidence of sadness and of [X] missing his mother as poignantly described by the father.  [X] has said to him he would like to have a tunnel between him and his mum, to have his mother at one end of the tunnel and his father at the other so he could see his parents whenever he wanted.  The mother agreed that [X] had said the same to her. 
202.	This issue of sadness and missing his mum and wanting his parents to  be closer geographically is consistent with the letter from Ms O psychologist, Father’s Exhibit 3, which says:
	Closer questioning revealed the wishes of the child are centred on the issue of a more equal shared arrangement. It is the author’s clinical opinion that if [X] was able to access a more equal arrangement, it would emotionally benefit his development and well-being.
203.	[X] would like to spend equal time with his mother and his father.  Unfortunately, [X] cannot have that wish fulfilled as his mother lives in Melbourne and he and his father live in [G]. 
204.	To present to the Court and Ms Blanch that any problems [X] has are due to witnessing alleged domestic or family violence by his father skates over what are the issues for [X], namely grief and a sense of loss at the situation he finds himself in.  He is living without his mother on a day-to-day basis and this is not what he was used to.
205.	[X] himself said at paragraph 35 of the Family Report:
	[X] said that his parents "don't really like each other", but his experience of their separation is "all right". He said that they "had fights" when they lived together. When asked about his parents fighting, [X] said that once his father had held his mother on the bed so that he and his brother threw toys at Mr Helmick to try to get him to stop which he did. He said that his mother had not been hurt by his father (to his knowledge), although she had gained "a black eye" from her sister. He said that his father swears when angry and that his mother sometimes is angry, but not especially so, and he stated that he and his brother had not been hurt at home by either parent.
206.	Ms Blanch further reports in paragraph 36:
	Generally speaking, [X] said that he wished that his parents would be together again, that there would be no fighting, and that they would not "break up again". [X] said that his brother [Y] wants him to stay in [G] and that [Y] is happy living with his father, Mr T. [X] gave no indication that he either expected, or pined for, his mother to return to [G] to live. He seemed to have accepted that his mother moved to Melbourne permanently. There was no indication in [X]'s presentation that he preferred [G] or Melbourne as far as locations go. The impression was gained that he is contented living in [G] but that he had also settled well into living in Melbourne last year.
207.	At paragraph 38:
	Both [X]’s emotional need for and expressed view that his parents be together rather than apart are contrary to the current and likely continuing reality of his parents living geographically far apart.
208.	At paragraph 39:
	[X] seemed to be a reasonably well-adjusted and emotionally resilient child who adapted well to living in Melbourne with his mother and then to living with his father in [G]… [X]’s aggression as alleged by his mother is a cause for concern.
209.	My concern is that there is very scant, if any, evidence of [X]’s aggression.  There is some sadness and a sense of loss but not aggression.
210.	The father said he has just not seen his son angry and aggressive as the mother alleged:
	He is a happy little boy, but he is very sad. He is sad about us.
211.	This view is confirmed by Ms O.
212.	The father was asked whether he had read that Ms Blanch was concerned that the child may bottle things up.  The father said:
	All I can I say is that when I have him with me I do not see that. He is sad about his mum. But he is a happy child. I just don’t see it and I don’t understand it.
213.	The father said he had asked the school to get him into counselling because of these views in the report and the mother’s concerns.  He said the school asked him “Why?”.  The child has had some counselling at the school, though the father said that was at his insistence and not the schools.
214.	The paternal grandparents assist the father to care for the child. 
Visiting the maternal grandmother
215.	Quite extensive cross-examination was undertaken by Mr Howe, on instructions by the mother, concerning the father taking the child to visit his maternal grandmother.  It was said this was most was upsetting to the mother and that the father knew this to be the case.  However, no mention of this is made in her affidavits.
216.	It was put to the father that the mother and her mother do not get on, her mother has various boyfriends, drinks a lot, and is not a good influence on her children and that the father was aware of her attitude.
217.	I was most concerned that the father had done so knowing this was the view of the mother.  Questions as follows were put to him:
	Why take [X] to see his maternal grandmother when you know the mother’s view?
You know the mother is estranged from her mother and that the mother did not want to take to her own mother’s home?
	The mother and the maternal grandmother have no relationship and the mother believes her mother is a bad influence on the child, the grandmother has lots of boyfriends.
218.	The mother’s case was that she told the father she had been sexually abused by one of the grandmother’s boyfriends, a boyfriend the grandmother is still associating with.  It was put to the father:
	What affect would it have on the mother with you taking [X] to see the maternal grandmother when she is still having an association with this man?
219.	The father replied:
	I was there. She knew I wouldn’t let anything happen to [X].
220.	He was asked:
	Did you believe you were doing the wrong thing by taking the child to see [name omitted] (the maternal grandmother)?
221.	The father answered:
	No.
222.	The father said on several occasions he did not think he had done anything wrong taking the child.  He said he was always with him, [X] loves his maternal grandmother, and that as far as he knew the mother used to take [X] to see her when the mother lived in [G].  
223.	It came out in cross-examination of the mother that not only did the mother take [X] and [Y] to see her mother whilst she lived in [G], but on two occasions she left the boys with her mother overnight.  This is either a double standard or the mother trying to paint the father in a poor light.
224.	The father then said that the first time that he became aware that the mother did not want to take the child to see the maternal grandmother was the previous day at the hearing.  At the time that evidence was given I had difficulty accepting what the father said.  However, after cross-examination of the mother it became clear that the father had no idea the mother had taken such an adverse view of the father taking [X] to see her mother.
225.	The father said that when he and the mother were together as a family they visited the maternal grandmother about seven times a year.  He observed that [X] had a good relationship with the grandmother and so did [Y].  This was denied by the mother. 
226.	This is an area where the mother’s credibility was much stretched.  The father said he wanted [X] to see both sides of his family, that he believed [X] had a good relationship with the maternal grandmother and loved her and the father was unaware of the mother’s attitude.  The father said he could not see that there would be a problem for [X] because he knew the mother had left the boys with the maternal grandmother on their own.  So he could not see why the mother was saying [X] should not see his maternal grandmother. I accept his evidence after having heard the mother’s evidence.
227.	The father then said that if it was upsetting the mother he would not take [X] or he would only take him if the mother agreed.  The father was very amenable to following the mother’s lead on this issue even though I have formed the view that the cross examination of the father on this issue was unfair to him.
228.	This turn of evidence alone caused me grave concerns about the mother’s veracity in re-telling of events in the past.  The father was cross-examined quite ferociously on this issue yet the mother herself has taken her own children to see her mother and when it suited her left them there overnight, despite her now stated concerns.  I began to form a view that the mother re-creates history to suit herself at particular times.
229.	The mother has had an extremely unhappy life.  Her own mother was a detached, ineffectual and neglectful parent in many ways.  The mother has made two suicide attempts which she described to Ms Blanch in the Family Report in greater detail than in her cross-examination.  The mother suffers from epilepsy.  The mother has difficult relationships with some of her of her siblings, and is living in Melbourne separated from both her sons whom I accept she loves dearly.
230.	The mother she says was sexually assaulted as a young girl in her mother’s home and her mother’s comments to her and lack of support were most upsetting.  The mother became very emotional when speaking about her poor relationship with her own mother.  The mother said she had spent all her time in [G] trying to get a relationship with her mother going but that it was a one way street.  She said her mother did not believe her when she told her she was abused, and just said that “these things happen”.
231.	The mother was asked when the last time she saw her mother was.  She answered it was “a long time ago”.  She said that it was after separation and that [X] was with her at the time.  The mother said she made an effort to have some type of relationship with her mother and she visited for 5 or 10 minutes and that [Y] was also in the car.  The mother said she had not been to her mother’s in about three years.
232.	The mother became very tearful and a short break ensued.  The Court has much sympathy for the poor parenting the mother received from her own mother.  The father mentioned his sadness at the mother’s poor parenting as a child and it is in stark contrast to the father’s strong and supportive relationship with his own mother and family. 
233.	The mother admitted that the boys had stayed overnight with her mother twice when [Y] was 10 and [X] was 7.  The mother said she believed it was safe for them to stay overnight because her mother does not have male friends at her place overnight, only during the day.  She said left them there about 8pm or 8:30pm and collected them at about 8am or 9am the next morning.
234.	The mother said she did this at a time when she knew there was an allegation that one of her nephews had been sexually assaulted whilst staying at the grandmother’s.  Despite this, the mother still left the children with the maternal grandmother.
235.	The mother was asked whether the boys were happy staying at the maternal grandmothers.  The mother said they were not.  The mother was asked why she had left them then.  The mother said:
	I wanted to confront [X]’s father with something that I couldn’t understand.
236.	Her reasons for so doing had nothing to do with her boys.  Yet, on her own evidence, she placed them at the home of a woman she says they are now in jeopardy in visiting.
237.	The mother was asked why she left them with the maternal grandmother overnight a second time.  The mother said:
	It was a 21st party and my niece [Z] was also there at the same time.
238.	The mother was then asked:
	Then why isn’t it okay for the father to visit your mother and do the same as you do.
239.	The mother answered:
	Well it is.
240.	The mother was asked:
	Why can’t the boys have a relationship with the maternal grandmother if they both wish it?
241.	The mother answered:
	There’s nothing wrong with that.
242.	The reason the mother objects to the father taking [X] to see his maternal grandmother is because the father did not like the maternal grandmother during the relationship, and it upsets the mother that he is now seeing her with [X].  Her objection to his actions has nothing to do with safety or concerns of harm for [X]; it is all to do with how the mother feels about her own mother.
243.	Thus the questions put to the father in his cross-examination by the mother’s Counsel under instructions, are simply inconsistent with the mother’s own evidence and nothing but an attempt to put the father in a bad light which, for a time, they did.
244.	Ms Blanch describes the mother’s present situation far more poignantly  than I could at paragraph 20:
	She probably feels, too, in some ways that Mr Helmick and Mr T have joined forces to her detriment…Although she has chosen to live separately from her children; Ms Jameson described simply and poignantly, her abiding emotional suffering during the absence of [X] and [Y] from her home.
245.	The mother suffered a painful dislocation of her shoulder which he has caused problems in the past including excessive use of painkillers and dealing with the pain itself.  The mother reports that she rarely drinks alcohol and she does not consume illegal drugs.  The mother does smoke cigarettes as does the father.  I accept that the mother’s epilepsy is well controlled.
246.	I accept both the mother and father now abstain from marijuana.
[X] and [Y]
247.	The issue was then raised how the father and Mr T had moved from fighting with each other, including the incident with the baseball bat, to being able to ask each other for assistance and for [Y] and [X] to spend time together in either home.
248.	The father said it happened when the mother went to Melbourne and he asked Mr T for help to find out where she was.
249.	The father said the arrangement for [Y] to come to his place came about after he and Mr T began talking and it became clear to the father that Mr T’s job [in the transport industry] meant he was leaving early in the morning and [Y] would be on his own.  The father lives in the same street as Mr T. 
250.	In 2008 [Y] came over at 7:45am every morning and quite often in the afternoons as well.  The father would take them both to school and care for them after school.  That has tailored off this year since [Y] is attending High School.  [Y] makes his own way to High School on the bus and he has afternoon activities.
251.	The father says [X] would go to [Y]’s house only on weekends and only if Mr T was there.  He said that [Y] frequently comes to his house and there has been about ten occasions the boys have had overnight weekends with each other. 
252.	The mother disputed this evidence. However, she did not call Mr T to find out how many sleepovers the boys had had.  I prefer the father’s evidence.  He is on the ground.  He is doing it.  It is clear the father has facilitated [Y] and [X] seeing each other every day in his home.  [X] is able to attend [Y]’s home if he wishes provided Mr T is there. 
253.	It is clear that Mr T and the father are cooperative and have ensured the boys spend time with each other regularly given their differences in age.
254.	[Y] has been in trouble in school and had a fight at High School.  The mother did not tell Ms Blanch this.
255.	The mother believes that the fight at the pool between [Y] and [X] was started by [X], because [Y] told her it was and that it was over floaties.  The father did not tell her about this.  She found out from [Y] and friends of a friend.  The mother said she had questioned [X] about it and that he had admitted he had a fight and that his father was present.  The mother believes that the father saw the fight. This was a significant part of the mother case regarding [X]’s aggression. 
256.	The mother agreed that [X] and [Y] are close.  The mother accepted that [Y] went to the father’s home most days before school but did not accept it was every morning.  The mother accepted that [Y] sometimes went to the father’s home of an afternoon.  The mother thought the boys should spend more time together in [G]. 
257.	However, her proposal that [X] be removed permanently to live with her in Melbourne would put paid to that wish.  The mother did not agree that there were ten sleepovers in 2009.  The mother thought it was two or three times.  The mother agreed that the two fathers’ had worked things out.
258.	The mother agreed that [X] is good at golf and the father has made a putting green at his home and they play together.  The mother did not agree that [Y] always played; she said he only played sometimes.
259.	The mother agreed the boys spent holiday time together and they have grown up as brothers.  
260.	The mother agreed that the father has always called [Y] [X]’s brother and regards them as brothers, and that he should be given credit for this. 
261.	The father calls [Y] and [X] brothers and said that is what they are. The words step or half brothers never entered the father’s language.  I found this pleasing and refreshing. 
Parenting capacity generally
262.	The father said he could probably afford about $30-40 a month for a pre-paid internet connection but not the pay as you go version he had in April 2009 as it went up to $90-120 a month and it was cut off.  Given that there was a notation in the April 2009 orders that he may not be able to afford it, it was unfair to criticise the father when this occurred.
263.	The father agreed that he could have afforded a pre-paid plan.  I accept that the father was unable to afford the internet connection he had at the time however I am unimpressed with his lack of action in having a pre-paid plan connection installed since April 2009.  The father has done absolutely nothing to inform himself of cheaper alternatives.  
264.	I did not accept the father’s evidence when he said the reason he did not pursue it was because he was worried about internet scams.
265.	I will make an order to ensure that he takes some action as it is most important that [X] is able to contact both his parents by the internet and skype.  This is the closest thing to a tunnel that can be achieved. 
266.	The father agreed he had called the mother a “dickhead” on one occasion in front of [X].  He said he had “slipped”.  He said he had called the mother a “dickhead” to his parents and friends.  The father said his parents had used the word “dickhead” at times as well, including in recent times.  The father disagreed he had used any other words such as “slut” or “whore”.
267.	Much was sought to be made of this.  It was put to the father:
	How can the Court have confidence that you will ensure that your friends, parents and yourself do not use derogatory words to refer to the mother around him.
268.	The father said this:
	I want my son to have the same loving relationship with his mother that I have with my mother.
269.	I accept that evidence it has the ring of truth and the father has a close and loving relationship with his family. 
270.	I accept that the father believes that his son rightfully belongs in [G] and that he could have behaved more appropriately when he found out the mother moved to Melbourne and spoken to [Y]’s father.  However, he was distressed and he was upset.  The mother herself had done the wrong thing at that time. 
271.	The father agreed that his son was very disappointed that the mother was not living in [G] and that the father blames the mother for [X]’s disappointment.  He believes she brought it upon herself and she should have thought about her son before she moved to Melbourne.
272.	The father was then asked to tell the Court the mother’s good qualities. The father said:
	She loves the children, she looks after the children really well. The children idolise their mother. She has had a very difficult upbringing and she is very sad about that. She is a very good mum. She wants the best for her children and she wants her boys to be together.
273.	The father was asked what the advantages were of [X] living with his mother.  The father said:
	Lot’s of love from their mum and they would be well cared for.
274.	From the father’s cross-examination by the Independent Children’s Lawyer the following emerged.
275.	Prior to the mother’s unilateral move to Melbourne, [X] was with his father three nights a week - Monday, Wednesday and Thursday night – and every alternate Saturday from 1pm to 5pm Sunday.
276.	The father agreed with the Independent Children’s Lawyer that if the mother was living in [G] he would be happy for [X] to spend equal time or such other substantial care arrangement with he and the mother as he believed this had been working in [X]’s best interests prior to the mother’s unilateral move to Melbourne.
277.	The father said he had no issues with the mother’s parental capacity and he said to the Independent Children’s Lawyer:
	No. [Ms Jameson] is a good mother.
278.	It is clear [X] had dental issues before the move to Melbourne.  Both parents sought to blame the other. Orders were made in this Court by consent concerning [X] attending a dentist and having his teeth attended to.  I am satisfied that has been done and that the father has continued to monitor [X]’s dental health and hygiene.  Both parents were negligent prior to that time regarding his teeth.
279.	The father said of an evening he and [X] sit down and read when [X] is going to bed and then they talk. The father said “I comfort him”.  The father then said he loves his son. The father became very emotional and was crying at this point. The Court had a five minute adjournment.
280.	When Court resumed the father was asked what [X] and he talk about when the father needs to comfort him.  The father said [X] says things like “I wish you were back with mum”.  The father replies “This isn’t going to happen mate”.
281.	The father said [X] had told him:
	I wish there was a big tunnel joining up with mum at one end and you at the other end and then I could go between you.
282.	The father said he found it very sad to see his son like that and that his son is very upset about his mother living in Melbourne and not in [G] with him and the father knows he is upset about this.
283.	It became clear that the mother has a problem with her sister, Ms D. 
284.	The father says [X] does see Ms D because Ms D moved back to [G] about a month ago. Ms D was caring for [X] whilst the hearing was proceeding.
285.	I was most concerned about this because the mother’s allegation was that Ms D was using ice.  The father said he had spoken to Ms D and she said it was not true.  He believed Ms D rather than the mother on this issue.  The father said this:
	Ms D has been a parent. She told me she wasn’t on it, she didn’t use it and I believed her.
286.	Ms D was back in [G] with her child [Z] who is approximately 14 years of age. 
287.	The mother’s Counsel made an oral application at this time that the child be immediately delivered into the care of the mother’s friend, 
Ms K.
288.	The paternal grandparents left the Court at that time to collect [X].  [X] remained in their care throughout the hearing.
289.	The mother’s health issues are epilepsy, endometriosis, a dislocated shoulder, two suicide attempts and depression.
290.	The mother says that her suicide attempts were really cries for help, not her really wanting to take her life, because she was in a really bad place and she really needed and wanted to get out of [G].
291.	The mother came to a health crisis in November 2006 when she stopped taking her anti-depressant medication and did not follow up appointments. The mother said the reason she did not do a follow up referral after her first suicide attempt is because she had blurted everything out to the counsellor and the counsellor said she was concerned about the children. The mother said the counsellor scared her about the children so she did not go back. That is an extremely infantile and immature attitude to take. The mother agreed that although the service had talked to her about obtaining help, she simply could not use them. She said she may have called them after five months.
292.	The mother did not get help for her for her problems.  She said she could not as she was not ready. 
293.	Yet the mother blames the father for her depression.  However, it is clear the mother’s problems are far deeper than her relationship with the father.  The mother has a fractured, dysfunctional, non-supportive relationship with her mother, she has difficulties with her sister Ms D, she was abused as a child, and abandoned.  To blame all the mother’s problems and depression on the father is unfair. 
294.	The mother was asked whether she has been able to maintain her relationship with [X] since his return to [G].  The mother said it was hard on the telephone and it was better with [Y].  However, from the Family Report, it is clear the mother has maintained a strong and supportive relationship with [X].  This child is closely attached to both his parents.  The mother said [X] is quiet on the telephone and it is hard to get a conversation going with him, and that face-to-face on the screen is much better.  The father has bought [X] a new G phone where he can video call with the mother.
295.	Mr T has not been a supportive parent as Ms Blanch noted in her report.  He had not paid child support for [Y] and had not been involved much with him until the mother determined to move to Melbourne and [Y] decided to say in [G].
296.	Thus to blame the father for all the mother’s problems is simply a 
re-invention of history that suits the mother’s purposes at this time which is for her son to live with her.
297.	It became clear that the mother has asked the father to help her since physical separation.  Following her first suicide attempt she rang the father for assistance.  That was the time when the father said to her:
	You have two beautiful boys to live for. You will be alright.
298.	The mother has looked to the father for help at other times since separation.  She had called him to come and check her home when she thought someone was there.  The father did come.
299.	The father also came and took the mother to hospital when she had an epileptic fit about three years ago.  The mother said that was not true and that the father “just dumped me at the hospital and his manner was not nice or sincere”.  However, she rang the father and he came.
300.	Ms Boyle put to the mother that in 2007 the mother rang the father and asked him to come over and help her get a ball and a Frisbee out of a neighbours place.  The mother agreed that was the case.
301.	That picture of the relationship between the mother and father, that is one of support, is very different to the picture the mother presented to Ms Blanch, in particular, and in her Affidavits of a violent, controlling and abusive man of whom she said, in her Affidavit filed 18 July 2008, “I believe it is in the child’s best interests to grow up well away from the father’s influence.”
302.	The mother makes complaints that the father does not tell her things about the child, for example when he was taken to hospital following being hit in the testicles, and not telling her immediately when he suspected the child may have epilepsy and the like.
303.	However, the same complaint can be laid at the feet of the mother. Most particularly in her unilateral move to Melbourne but also having the child’s ears pierced.  This just bespeaks these parent’s poor communication and mistrust of each other. 
Family Consultant’s Evidence
304.	Ms Blanch was called to give evidence on 11 January 2010 when the hearing resumed part heard in Parramatta with the parties and 
Ms Blanch appearing by video-link from Albury.
305.	Ms Blanch agreed that internet connection for [X] is very important. The Court will make such an order.
306.	Ms Blanch agreed there are issues about [X] maintaining a relationship with the distant parent as time goes on.
307.	Ms Blanch said it was most important that [X] have a relationship with both his parents as he is attached to both his parents, is comfortable with both his parents, secure with each parent and loves each parent.  She said he cannot be estranged from either of them.  It is fundamental that [X] maintains a close relationship with each of his parents and that those parents are available to him.
308.	Ms Blanch said that she was re-assured to hear that [X] had settled in well at school, that he had spent all the time with his mother that the Court had ordered, including extra time, that the parents had been able to negotiate and that the father was agreeable to the mother coming to [G] on any occasion to spend time with the child provided he receive five days notice.  Ms Blanch believed that arrangement would maintain a relationship between [X] and his mother who is, at this time, the absent parent.
309.	Ms Blanch was also comforted by the fact that [X] and [Y] spend time together in the father’s household, have sleepovers and spend time together in mornings and afternoons. Ms Blanch said she was encouraged that the father could promote [X] and [Y]’s relationship in that way.
310.	It was put to Ms Blanch that it was fair to say that in the last twelve months the father has encouraged and maintained the child’s relationship not only with his mother, but also his brother [Y]. 
Ms Blanch said she was encouraged by what she had heard and that would appear to be the case.
311.	Ms Blanch also said that [X] and [Y] have a very important relationship and that it is important for [X] to maintain that relationship because the boys had a sibling relationship for life, they were an emotional buffer for each other in terms of adult difficulties they may encounter with their parents and in the future, and that having [Y] in [G] with [X] meant that he could talk to [Y] about his mother in a vastly different environment than when he is with his father.  That is a source of comfort to [X] and further enriches his relationship with his mother.
312.	Ms Blanch could not recall whether the mother had told her if she had asked [X] whether he wanted to come to Melbourne with her.  It was put to Ms Blanch that, as he was only eight and a half years of age at the time, had the mother asked [X] this question this would have been most unfair on [X]. Ms Blanch agreed that he would not have been able to choose between his parents, and secondly, and more importantly, that [X] had no understanding of what it meant to live in Melbourne permanently.  Ms Blanch agreed that to be the case and that it would have been poor of the mother to put the child in this situation.
313.	Ms Blanch was also encouraged that [X] would speak to the mother by telephone nearly every day and that this will be most helpful in sustaining his relationship with her, and that all the matters that had been put to her indicated the father was encouraging a positive and close relationship with [X] and his mother and his brother.
314.	In relation to [X]’s epilepsy, this occurred after the Family Report was prepared which was prepared in April 2009.  Ms Blanch said this:
	It is most important that the mother feel comfortable with, and have a good relationship with, the treating medical practitioners.
315.	The mother does.  Dr H has been her specialists and Dr K her General Practitioner.  The father is agreeable to that being maintained for [X].
316.	Ms Blanch understood that the father had done all he could to have [X] attend the “Seasons for Growth” program but that it is just not available to him at this time in [G].  Ms Blanch saw the father’s own attendance at courses as a positive for his parenting.
317.	When Ms Blanch was cross-examined by the mother’s Counsel, the gravamen of the mother’s case became clear.
318.	In paragraph 41 of the Family Report, Ms Blanch says:
	If as the practical situation dictates, [X] must live primarily with one parent or the other then it will be important to consider the capacity of Mr Helmick and Ms Jameson to meet his various needs (both his immediate daily care and developmentally) and to support his relationship with his other parent. It seemed that [X] is emotionally secure in his relationships with both parents and that both Mr Helmick and Ms Jameson are capable of meeting his day to day needs. Arguably, it may also be considered that 
Mr Helmick would be able to cater to [X]'s undoubtedly increasing commitment to playing sport. He apparently has been a fully involved father in this regard. This is not of course to diminish Ms Jameson's demonstrated support of [X]'s sporting activity. Given that [X] is now apparently settled back in [G] living with his father and attending school, it would be best not to unsettle him again unless there was a compelling reason to do so. (emphasis added).
319.	Mr Howe spent much time with Ms Blanch quite properly exploring what she would regard as a “compelling reason” to change what is a well settled arrangement for [X].
320.	Ms Blanch said compelling reason related to parenting capacity. 
321.	Mr Howe went on to explore what that meant.  Mr Howe raised with Ms Blanch that the father had admitted he had called the mother a “dickhead” in front of the child, that he had used this term to his parents and friends, and his parents and friends had used the term to him to describe the mother.
322.	Ms Blanch said this would be a compelling reason to look at changing [X]’s well settled care arrangement.
323.	Mr Howe reported to Ms Blanch the 2005 events where the father broke into the mother’s home, urinated on the bed, held her down on the bed and then passed out after drinking alcohol to excess.
324.	Ms Blanch said that would be a compelling reason as would any allegation of domestic violence that was found to be reasonably held.
325.	Mr Howe then asked:
	If Her Honour draws from the father’s failure to appear to attend the hearing of the final Intervention Order in the Melbourne Magistrates Court in May 2008 that the father consented to the allegations of violence, would that be a compelling reason.
326.	Ms Blanch said it would. 
327.	The difficulty I have with that submission is that I do not accept that I can draw such a conclusion.  In Father’s Exhibit 4 it is clear that the father wrote to the Court and told them he would not be attending and that the child was in his full time care.  That does not mean his non-attendance and the order being made in his absence can be seen as he agreeing with or consenting to the allegations against him.
328.	The Intervention Order taken out by the mother at that time is tainted by the mother’s re-creation of history as she saw fit as opposed to reality.  I reject that submission.
329.	Ms Blanch was asked whether it was a compelling concern for Ms Blanch that the father believed he was in a better position to deal with [X]’s epilepsy although the mother is herself an epileptic.
330.	Ms Blanch said that may fall into the category of a compelling reason.
331.	Ms Blanch was then asked whether the father’s failure to tell the mother immediately on Sunday night when the child complained of the loud, slow and soft voices and only ringing the mother after going to the hospital was a compelling reason.
332.	Ms Blanch said this:
	I am ambivalent on that. The priority would be to attend to the needs of the child first and then inform the absent parent.
333.	In relation to the father’s conduct on that occasion, I do not accept 
Mr Howe’s submission that the father acted unreasonably in not ringing the mother on the Sunday night when the child complained about the symptoms.  I do accept that the father should have told the mother more fully what the child’s symptoms were on Monday when he did ring her.  However to say, as Mr Howe submitted, that the father’s conduct was unreasonable and bespoke of him endeavouring to cut the mother out of the child’s life and not inform her of important matters is simply not made out on the facts.
334.	The father said he did not want to alarm the mother and he knew she would be upset.  True to his words, the mother did understandably become upset and she cross-examined him at times.  Thus the father’s concerns of the mother being upset before he or she knew what the diagnosis was were borne out. 
335.	The father had a range of options he could have taken when [X] first told him of his symptoms that Sunday night.  He took an option he believed met the needs of his son.  He was concerned to not unduly distress him and he determined to wait until there had been some intervention by health professionals before he rang the mother.  In this light his reasons for his actions are reasonable and not, as submitted by Mr Howe, unreasonable.
336.	Mr Howe then put to Ms Blanch that the father’s attitude was that the mother’s difficulties with her life in not having the children living with her was caused by her decision to move to Melbourne, is her own fault, and that she has to deal with it.
337.	Ms Blanch agreed that if so this is not healthy and that it did raise a concern in her mind as to the long term capacity of the father to maintain [X]’s positive relationship with his mother. 
338.	However there are consequences that flow from adult decisions and I do see that the father’s position on this issue will necessarily result in his not being willing to promote [X]’s long term relationship with his mother.  The father’s actions over the last 18 months have strongly and positively supported [X]’s relationship with his mother and brother. The father is most positive of [X]’s mother as a mother although he is disappointed in her decision to move to Melbourne.   
339.	It is factually accurate to say that a consequence of the mother’s legitimate choice to move to Melbourne is that her children no longer live with her and that the mother does have to deal with this consequence.  The mother did not come to the Court and ask for an order that [X] be permitted to live with her in Melbourne she just removed him there when she admitted she knew the father did not want [X] to go.  That is the real factual situation and that was not put to 
Ms Blanch. 
340.	An adult can have a view that a situation it is the other adults fault and is their problem.  It does not follow that such an opinion will always translate into conduct which has a negative impact on a child’s relationship with the other adult namely an absent parent.
341.	That is the difficulty with the submissions made by the mother in this case.  The father may have this view of the mother, however where is the negative consequence for [X] and his mother in the father holding that view?  There are none that I can see on the evidence.
342.	The Family Law Act does not require I become an arbiter of thoughts or act as some type of thought police.  It is actions and conduct that are the building blocks of the matters I must weigh up in the exercise of my discretion. A parent’s thoughts or views alone are insufficient unless there is a corresponding action, conduct or consequence impacting negatively upon a child. 
343.	Mr Howe submitted that the father has a negative view of the mother which is supported by the father calling the mother a “dickhead” together with his family so doing, not telling the mother immediately of the child’s symptoms or describing the symptoms precisely to her and his view that the mother has caused all her difficulties by her unilateral move to Melbourne.  All those matters are true.  They are negatives.  They do show that the father has a negative view of the mother as woman and of her life choices. 
344.	However there is an evidentiary gap.  These views have not translated, on the evidence, into a negative impact on [X], or of the father putting the mother in a bad light to the child, or the child’s relationship with the mother suffering.  To the contrary.  The child is suffering from not having his mother living close by not from anything his father believes. [X]’s relationship with his mother is as strong as it ever was and the father is most positive of the mother as a mother if not of her choices. 
345.	[X] is sad because of the mother’s need, which I understand, to leave [G] and live in Melbourne.  His sadness has nothing to do with his father’s behaviour or conduct.  [X]’s sadness is not due to his father running his mother down, or by his father or the paternal family, speaking negatively of her to him. 
346.	[X] knows his parents do not like each other but he makes no complaint of either parent speaking ill of or poorly of the other whilst he is there.  He could not have such a strong and comfortable relationship with each of his parents if either of them behaved in the way that the mother says the father behaves.  The mother has not made out the connection she contends for in the father’s negative attitude to her and the consequences for the child’s relationship with her.
347.	The mother contended in submissions and questioning of Ms Blanch that the father was merely being “good” and “putting on a show” whilst the Court proceedings were on foot.
348.	This position was supported in part by Ms Blanch in paragraph 26 of the Family Report she states:
	Their stated relationship histories were difficult to reconcile. That is, there was an air of implausibility in Mr Helmick's easy-going and upbeat presentation and an undercurrent of hostility in 
Ms Jameson's presentation.
349.	I find that the reason for Ms Blanche’s difficulty in the histories is that the mother was not truthful to her when recounting her version of their history.
350.	True it is that the father has behaved poorly in the past.  As has the mother.  The father’s behaviour in 2005 was appalling.  He has not consumed alcohol since.
351.	The mother’s behaviour in kicking Mr T in the groin in 2007 when he came to speak [Y] and seeking in this hearing to lay blame at the father’s feet is poor.  The mother attempting to lay blame again on the father for the baseball bat incident when Mr T was the aggressor again reflects poorly on the mother.  The mother going to the father’s home in 2008 to confront him and then blaming him for the incident reflects poorly on her.  She was the aggressor.  She caused the problem.  The mother’s instruction to cross examine the father in relation to her upset and dismay in him taking [X] to spend time with her mother when she herself had done the same and had left both children overnight on two occasions with her mother reflects poorly on the mother as an historian of truth.  The mother re-creates her history.  That is why it was difficult for Ms Blanch to reconcile the histories.  It was not because the father was playing up or putting on a show for the Court or the Court proceedings. 
352.	[Y] would not attend the father’s home as often as he did and does unless he was comfortable going there.  The father could not put on a show to convince [Y] to do something he did not want to do particularly if, as the mother asserts, [Y] had witnessed such violence against her by the father. 
353.	Thus I find that when there are factual matters to be determined, the father’s version of events is to be preferred to that of the mother.  The mother’s need to have her son live with her is extreme and she is doing all in her power to correct what she sees is a wrong for [X].  In order to achieve her strong desire for her and [X] to be re-united in Melbourne the mother has compromised her veracity. 
354.	Ms Blanch was concerned at the allegations the mother made concerning [X]’s aggressive side and aggression.  However I am not satisfied the mother’s allegations are valid.  The mother’s information is hearsay, second hand, at the best.  The father was there at the time.
355.	The one objectively proven incident of poor behaviour in the playground at school does not show an aggressive boy.  The mother says he is aggressive with her, the father says he is not with him and just does not see it. 
356.	What does the mother see?  Is it [X] acting out his unhappiness and sadness in being separated geographically from his mother?  All agree he misses his mother and perhaps he is angry at her for going to Melbourne.  I cannot say but it may be one explanation of the father seeing no aggression in [X] and the mother seeing it.
357.	The mother did not tell Ms Blanch that [Y] had been in trouble at High School.  She only reported negatives when it came to [X].  On her evidence all is well with [Y] and his father.  I am not so sure.
358.	Ms Blanch accepted the mother’s allegations and used those allegations in her report to raise concerns of the child living with a parent who permits the child to behave violently and who behaves violently himself. I accept it is important for [X] that his father acts appropriately as he is a role model for the child. However, the evidence does not support the mother’s allegations against the father or of [X]’s aggression.  
359.	Ms Blanch said in cross examination that her doubts about the father’s credibility were increased.  However, I have found to the contrary after the evidence was tested.  It is not the father’s credibility that is in doubt, it is the mother’s credibility which is in doubt as she embellishes and re-creates her history.
360.	If I found that the father was only paying lip service to [X]’s relationship with the mother then I would not accept the recommendations of Ms Blanch that the child remain living with him  and neither would Ms Blanch hold to those recommendations.  Ms Blanch said she would change her recommendations if that was the finding of the Court.
361.	Ms Blanch said if the Court found that the father was violent or did not respect the mother in the presence of the child then her recommendation that the child remain living with the father would change.
362.	However, those are not the facts and that is not the evidence.  I do not find that the father is only paying lip service to [X]’s relationship with the mother.  The father shows deep empathy for and understanding of the emotional needs of his son.  He was impressive as parent in that regard.
363.	The father has an excellent relationship with his own mother and wants the same for his son.  The father is sad for his son.  The father and the child spend time talking about the child missing his mother including the description of the tunnel [X] wishes to have built.  This is not a conversation that would be had between a father and a child if as the mother asserts the father does not speak of her in a positive or loving way.  The mother is clearly spoken of with love and affection in the father’s home.  [X] can speak to the father about his mother at any time he wishes to.  His father is positive, encouraging and supportive of his important relationship with his mother.  
364.	Mr Howe submitted that I could find that the mother taking the child to Melbourne was to be regarded as a short term negative unlike the long term negatives in the fathers conduct.  He said she had to flee to get away.  However, the mother had been separated from the father for three years.  She did not tell [X] they were moving to Melbourne permanently until the day of the move.  She removed him from his brother, his school and most importantly his father for three weeks. There were no indicia of flight in fear of harm or of a recent separation, or of mental health issues or some other compelling reason.  The mother just decided she would leave then and there.  These are all matters that do not bode well for the mother’s commitment to the child’s ongoing relationship with the father. 
365.	The mother knew the father did not want her to take the child to Melbourne.  That is why she went in subterfuge.  That does not bespeak of a short term attitude rather a possible long term attitude of the mother where she would have difficulties in supporting [X]’s important relationship with his father. 
366.	Couple that with paragraph 37 of the mother’s affidavit filed 18 July 2008:
	it is in the child’s best interests to grow up well away from the father’s influence.
and my concerns of the mother’s capacity are further highlighted in this respect. 
367.	The father has never in any document, any answer to a question in cross-examination or any letter sent said anything of that nature about the mother.
Submissions
368.	The Independent Children’s Lawyer supported the child remaining where he is in [G] with his father.
369.	The Independent Children’s Lawyer said there has been domestic violence and the child has witnessed domestic violence with each parent.  The mother has herself been the aggressor, as I have found, towards both the father and Mr T.  The father has been an aggressor towards the mother.  Mr T has been the aggressor towards the mother and the father.  Yet both boys live with their fathers.   
370.	The only incident [X] can remember which he reported to Ms Blanch at paragraph 35:
	[X] said that once his father had held his mother on the bed so that he and his brother threw toys at Mr Helmick to try to get him to stop which he did. 
371.	Neither of the parents recalls that incident.  
372.	The Independent Children’s Lawyer submitted that the mother had little credit when it came to the domestic violence issues that she recounted against the father since 2005 admitted by him.  The mother’s fuss about the father taking [X] to her mother when she had done the same thing put her credibility under a serious strain. 
373.	As the Independent Children’s Lawyer said, this case is not a competition between the parents because both parents have done a good job and are good parents.  However, like all adults, they are flawed.  They have each tried to do the best for their son in all the circumstances. 
374.	It is clear that the mother will not return to [G].  That is understood.  This Court will not punish the mother for her decision to live in Melbourne. 
375.	What I must focus on is where it is best for [X] to live in all the circumstances of the case knowing that his father will remain in [G] with his family ,his brother [Y] and the maternal family and the mother will remain in Melbourne with her friends and her support networks.
376.	As Ms Blanch so poignantly says in her report at paragraph 41:
	it would be best not to unsettle him ([X]) again unless there was a compelling reason to do so. 
377.	The Independent Children’s Lawyer said all the matters the mother had raised, apart from the incident in 2005 following which the parties reconciled, do not amount to a compelling reason to change [X]’s care arrangements.
378.	I accept that submission.  The evidence does not support the mother’s case at any level.
379.	The way the father advised the mother about [X]’s epilepsy may not on reflection have been the best way to deal with the situation.  The father himself said he should have given the mother more information.  However, it was not unreasonable nor could it be elevated to a compelling reason to change [X]’s care.  It does not support the mother’s submission that it indicates that the father does not want the mother involved in the child’s life.  The mother was well informed about what was occurring even before the child went for his tests. 
380.	I will not rebut the presumption of joint parental responsibility.  The parents have exercised it to date and will continue to exercise it.
381.	The father is very sensitive to his son’s predicament, namely that he is missing his mother.  In response to the child’s epilepsy the father became an advocate for the child when the Registrar at the hospital thought the child was telling stories.  The father believed the child and pursued the matter and made sure tests were done.  The father has managed to repair the bonds with [Y]’s father and gets along with him so that the boys can spend time together.  These are all acts of a person who has a commitment to his son’s emotional and psychological welfare which includes a proper and appropriate relationship with his mother and his brother.
382.	[X] is comfortable living with both his parents.  [X]’s wish is for both his parents to be living together, at least in the same town.  Unfortunately for [X], his wishes cannot be met.  Regardless of the decision I make, the father will remain in [G] and the mother will remain in Melbourne.
383.	A move to Melbourne would be disruptive and be a significant change to his circumstances.  [X] would be removed from and separated from his father, his home, his school, his paternal family, his maternal grandmother and significantly his brother [Y].  [X] will not be able to maintain the strong relationship he currently has with [Y] if [X] moves to Melbourne.
384.	The practical difficulties for the child spending time with and communicating with the other parent is a live issue.  However, whether the child lives in Melbourne or [G] the practical difficulties remain.  Each of the parents has a car and can drive and can facilitate the child spending time with the other parent. 
385.	The father is well able to manage [X]’s epilepsy.  The mother may be better at it, we do not know.  However, I have no concern as to the father’s capacity to manage it. He has demonstrated that he is on top of it.
386.	Changeover should occur at the paternal Aunt’s home at [omitted] so that if either parent is late [X] is in a home setting. 
387.	The father must put on the internet connection forthwith so that his son can communicate daily with his mother by way of skype or other means. 
388.	Ms Boyle adopted the Independent Children’s Lawyer’s submissions and added.
389.	The parties have been able to negotiate additional time since the mother’s unilateral move to Melbourne so there is room for the parents to communicate when it comes to the best interests of their child. 
390.	The mother’s decision to discuss her move to Melbourne with [Y]’s father and [Y], but not [X]’s father, is extraordinary in the circumstances.  There is no excuse and no justification for the uneven handed approach she took to the father’s of her two children.  The mother did this because she knew this father disagreed.  That does not bode well for the future.
391.	The father has an impressive track record and is not sufficient to say that this has all been done for the benefit of the Court hearing.  It has been 18 months since the Court made Orders for [X] to be returned to [G].
392.	The father has re-established a relationship with [Y]’s father, the child has an excellent relationship with his mother and the parents have renegotiated orders so that he spent all the holidays with the mother, another weekend during the school term, and he speaks daily to his mother on the telephone.  The only blot on the landscape is that the father did not pursue the internet connection.  Otherwise the father has ensured that [X] maintains and continues to maintain an excellent and close relationship with his mother.  The father says positive things about the mother to the Court.  He obviously speaks positively to this child about the mother because they talk about the mother.
393.	The mother’s conduct in criticising the father for taking [X] to see his maternal grandmother when she had done it herself has not done the mother’s credit any good.
394.	The mother has some fragility of personality.  She does not have the support of her family.  However the mother does have a good support network of friends.  The mother’s own mother has not supported her and she has a fractured relationship with her sister and niece.  The father may be less emotionally fragile than the mother.
395.	The mother’s history of the domestic violence was shown to be a 
re-creation of history apart from the 2005 incident.
396.	The father has made admissions against interest by saying he called the mother a “dickhead”.  That is to his credit.  It is a statement.  It has not been shown on the evidence to have flowed through to a negative impact on the child or his relationship with his mother.  
397.	Despite Mr Howe doing a superb job in drawing out the negatives of the father in his care of the child, I could see no connection between the father’s attitude to her, calling her a “dickhead” or not putting the internet on that has resulted in a negative to [X] or an impact on his relationship with his mother.  It is simply not made out.
398.	Ms Blanch in cross-examination referred to the father calling the mother a “dickhead” as an example of a global negative attitude to the mother by the father.  That may well be true.  But that alleged global negative attitude has not had a consequence for the child or his relationship with the mother.
399.	Mr Howe submitted that the mother had not made any negative comments about the father or called him a “dickhead” whereas the father had started off with negative comments.  That is simply not the evidence.  The mother’s affidavit is littered with complaints of the father’s conduct towards her.  The mother claimed the father yelled at her, was abusive in telephone calls, physically abusive to her, and controlled her behaviour resulting in her depression and feelings of having no control over her life. 
400.	That submission cannot be sustained as it is inconsistent with the case that the mother put to this Court.  The mother was extremely negative of the father in her affidavits and oral evidence.  One merely has to read paragraph 37 of the mother’s 18 April 2008 affidavit to see the futility of this submission:
	it is in the child’s best interests to grow up well away from the father’s influence.
401.	If that is not a negative attitude towards the father then I am not sure what is.  Thus Mr Howe’s submission is not accepted. 
402.	If the father has a global negative attitude towards the mother, so too does the mother have a global negative attitude towards the father particularly when I have found most of the allegations she made against him were not proven on the evidence. 
403.	Mr Howe submitted that the paternal grandparents had a negative attitude to the mother as well and that and that I could take notice of their behaviour in Court.  Ms Boyle submitted I could not.  I accept 
Ms Boyle’s submissions.  That issue was not taken up at the time.  There is not one complaint by [X] about any negative comments that his grandparents have made about his mother.
Findings
404.	On balance, having regard to all the matters which I have canvassed and the factors under ss.60CC(2),(3) and (4) of the Family Law Act, I have found and am satisfied that the child has maintained and will continue to maintain the benefit of a meaningful relationship with his mother if he lives in [G] with his father and that his father has been instrumental in ensuring that this relationship has been maintained.
405.	There is a very small chance of the child witnessing violence at the hands of the father or poor behaviour from his father.
406.	To remove the child from [G] would be a serious dislocation of his current living arrangements, his settled care arrangements, his schooling, and his contact with his paternal and maternal families and most importantly he would be separated from his brother [Y] with whom he had always lived until his mother moved to Melbourne.  [X] has a strong and attached relationship with [Y]. 
407.	Further if he was so removed I am less certain of the mother’s ability to promote a ongoing and positive relationship for [X] with his father having regard to her conduct in moving to Melbourne as she did and her view that [X] would be best growing up well away from his father’s influence.
408.	The father has the runs on the board.  I am not as sure the mother has the same capacity as he.
409.	Both parents have the capacity to provide for their child’s emotional, psychological and financial needs to a similar level as the other.
410.	I find that the father has a more than adequate capacity to care for [X]’s needs regarding epilepsy.  I am satisfied that he will ensure [X]’s regime of medication and treatment will be maintained and that the mother is comfortable with the medical practitioners who have been involved in his care, being Dr H and Dr K, and the father will ensure he attends those Doctors.
411.	Both parents have a somewhat negative attitude to each other.  However, they have each been able to shield their son very much from their negative attitude because he has a close, comfortable, strong bond with each parent.  Ms Blanch reports that he could live with either his father in [G] or his mother in Melbourne.
412.	The father has demonstrated a high capacity to ensure that the relationship with the mother and with [Y] has been is maintained over distance and time since [X] came into his care.
413.	The father is very sensitive to his son’s sense of loss in not having his mother live close by and has take all steps he could have to ensure that the child has some counselling and assistance to deal with that sense of loss.
414.	In those circumstances the father’s Application that the child live with him in [G] are the Orders I will make, those being the Orders I believe are in the best interests of the child.
415.	Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding four hundred and fifteen (415) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate:  A. Morris 

Date:  29 January 2010