Chaucer & Chaucer

FEDERAL CIRCUIT COURT OF AUSTRALIA
Chaucer & Chaucer [2021] FCCA 1776

File number(s): DGC 1585 of 2020

Judgment of: JUDGE BURCHARDT

Date of judgment: 13 August 2021

Catchwords: FAMILY LAW – Parenting dispute about children aged 10 and 11 who have lived all their lives in primary care
of mother – mother having extremely unfavourable opinion of the father – children being well aware of mother’s opinion which is contrary to their lived experience of the father, whom they love – children conflicted as a result – family report assessing children at risk if remaining in mother’s primary care and recommending change of primary residence – orders made as recommended in family report.

Legislation: Family Law Act 1975 (Cth)

Cases cited: Goode v Goode [2006] FamCA 1346

Number of paragraphs: 186

Date of last submission/s: 18 June 2021

Date of hearing: 17 and 18 June 2021

Place: Dandenong

Solicitors for the Applicant: Springvale Monash Legal Services

Counsel for the Applicant: Mr McLeod

The Respondent: In person

Solicitor for the Independent Children’s Lawyer: Robert Halliday & Associates

Counsel for the Independent Children’s Lawyer: Mr Brewer
ORDERS

DGC 1585 of 2020

BETWEEN:
MR CHAUCER
Applicant

AND: MS CHAUCER
Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the children X born in 2009 and Y born in 2011 (“the children”) and the father consultant with the mother regarding the children’s health and education and consider her views before making long-term decisions about the children’s health and education.
3.That the children live with the father.
4.That the mother spend time and communicate with the children as follows:
(a)DURING TERM TIME, each alternate weekend from conclusion of school Friday 3:30 pm or after school on Thursday, if Friday is a non-school day to commencement of school Monday or if a non-school day, Tuesday at commencement of school;
(b)From 3:00 pm Christmas Eve until 5:00 pm Christmas Day in even numbered years;
(c)From 3:00 pm Christmas Day until 5:00 pm Boxing Day in odd numbered years;
(d)For one half of all school term holidays and in default of agreement the first;
(e)For the first half of the summer school holidays in 2021 and each alternate year thereafter and the second half of the summer school holidays in 2022 and each alternate year thereafter with the changeover on the second Sunday in January at 5:00 pm;
(f)From 3:00 pm Easter Thursday to 3:00 pm Easter Saturday in odd numbered years if the children are not already spending time with the mother;
(g)From the conclusion of school on the weekend of Mother’s Day until the commencement of school on the Monday of that weekend;
(h)By telephone/FaceTime/Skype or similar video platforms; between 5:30 pm and 6:00 pm on Wednesday and Monday, facilitated by the father and when the children are in the mother’s care, she facilitate telephone/FaceTime/Skype or similar video platforms at all reasonable times for the children with the father at the same times;
(i)The children are permitted to have their phones at the mother’s and to be able to contact the father if they wish on their phones and to be able to contact the mother on their phones when they are with the father; and
(j)Such other times as agreed in writing.

5.The mother’s time with the children be suspended as follows:
(a)From the conclusion of school on the weekend of Father’s Day until the commencement of school on the Monday of that weekend;
(b)From 5:00 pm Christmas Eve until 5:00 pm Christmas Day in odd numbered years;
(c)From 5:00 pm Christmas Day until 5:00 pm Boxing Day in even numbered years;
(d)For Easter Public Holiday from 3:00 pm Easter Thursday to 3:00 pm Easter Sunday in even numbered years.

6.At the conclusion of holiday time, weekend time recommences in exactly the same sequence as if the holidays had not intervened.
7.All changeovers when not at the children’s school be at McDonald’s Suburb B or otherwise as agreed in writing between the parents.
8.The children’s treating practitioners are to be nominated by the father and are to be included the children’s current health practitioners for one medical practice clinic, one paediatrician and one psychologist. The parents are only permitted to take the children to medical practitioners nominated by the father unless in a medical emergency.
9.Each party keep the other informed of their mobile telephone number and current address and advise the other within seven (7) days of any change of address and mobile number.
10.The mother and father shall inform each other as soon as practical if the children require medical treatment or are prescribed prescription medication.
11.Each party enrol in and complete a parenting orders program and follow the lawful directions of the co-ordinator of the program including whether the children should be enrolled in the “Stand By Me” program.
12.The parties to communicate about the children using the ‘Family Wizard App’ or similar app.
13.The parents to communicate by SMS or email with each other and the mother to ensure the father can contact the children on her phone.
14.The mother and father sign all documents and do all things necessary to ensure the children attend counselling nominated by the Father and that each parent is involved equally with the counselling and follow any recommendations of the counsellor(s).
15.Both parties do all necessary acts and sign all necessary documents for a passport to be issued for each of the children and to be held by the applicant father, including any updated passport to be issued for the children to allow them to travel. Where a party fails or refuses to do so, the requirement for that party’s consent will be dispensed with.
16.If either party wishes to travel overseas with the children, they give 28 days’ notice regarding the travel and include details of an itinerary including a contact number for while the children are away and that parent is permitted to take the children overseas for that travel.
17.The mother make available to the Father the children’s belongings they have at the mother’s residence reasonably required for their change of residency to the father’s house.
18.The mother and father be restrained by injunction from:
(a)Denigrating the other party or their partner to or in the presence or hearing of the children or permitting any other person to do so;
(b)Discussing these proceedings to or in the presence or hearing of the children or permitting any other person to do so;
(c)Using corporal punishment on the children or permitting any other person to do so.

19.The father to engage FIRST CHILD through the Department of Families, Fairness and Housing with a parent co-ordinator to assist the children and the parents with their new living arrangements.
20.The father be at liberty to provide the Family Report of Family Consultant C released 24 May 2021 to any counsellors or medical practitioners the children may consult pursuant to these Orders.
21.Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Chaucer & Chaucer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY

This is the latest tranche of litigation about the best interests of two children, X, born in 2009, and Y, born in 2011. Their interests were considered at some length in a decision which I handed down on 15 September 2017 following a two day trial. No objection has been taken to my hearing this proceeding, and I should point that I had, in fact, completely forgotten the matter, to a point where I did not even remember having given judgment when this matter commenced before me. No party has sought to turn my attention to my earlier judgment, and I am, therefore, going to confine my findings in this trial to the evidence and submissions actually made in this particular tranche of the litigation.
The mother’s position articulated on the second day of trial is that the 2017 orders I made should remain in full force and effect, together with ancillary orders to keep both parties informed of future medical appointments and to resolve difficulties over the resumption of time after school holidays, together with counselling. The father’s position, which is supported without reservation and, indeed, it would seem to me, with enthusiasm, by the Independent Children’s Lawyer, is that the children should move to a 9/5 arrangement living primarily with their father (whereas presently they live in such a regime with their mother). Again, certain ancillary orders are sought which are largely not, of themselves, controversial.
For the reasons that follow, and not without considerable hesitation, I propose to make the orders recommended by the family report writer, Ms C, which essentially supported the father’s position and as fleshed out, so to speak, by the Independent Children’s Lawyer.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1974. He is unemployed and in receipt of a disability pension and suffers from fibromyalgia. He presently lives in a large mobile home situated on a property owned by his brother, upon which, if I understand the matter correctly, both his brother and the father’s parents have separate dwellings. It will be necessary to return to the quality of this accommodation in due course. This accommodation is approximately 30 minutes’ drive from the children’s school, and the father is actively seeking to relocate to a rental property closer. The mother was born in 1976 and is in receipt of statutory benefits. She lives close to the children’s school.
The parties separated on 1 January 2014 and were divorced in April 2015. The children, as earlier indicated, live with their mother and spend time with their father in what was originally ordered to be a 9/5 arrangement, although there have been difficulties with that, once again to which it will be necessary to return.
Both children suffer from asthma and require Ventolin on occasion. X suffers from ADHD and appears to suffer from certain fine motor deficits also. It is fair to say that the mother sees the children’s conditions as being far more serious than does the father, a pattern regrettably common in parenting disputes. I have not, however, been provided with any medical opinion either from a General Practitioner or a specialist which puts me in a position to make any definitive finding as to which of the two parents’ perceptions may be more accurate.
The mother appears to be completely estranged from her own family, and it seems uncontroversial that the father has a good relationship with her parents and at least some of her siblings, whose time with the children he has facilitated to the extent practicable.
THE PARTIES’ AFFIDAVITS
The parties have filed relatively significant quantities of affidavit material. I have read this material carefully and have regard to it. The gravamen of the father’s complaints, which in my view are repetitive and prolix, is to the effect that the mother failed properly to foment the relationship between the children and him. This is said to be evidenced by a gap in time in 2020 when the COVID-19 emergency first presented itself, and the mother prevented the father from seeing the children from March 2020 until Court orders were made in July 2020.
He also complains of bitter disputation on an ongoing basis about time after school holidays, with the mother’s interpretation leading to the children not seeing him for as long as 20 days (a period in total, it should be remembered, of only under three weeks). He also complains that the mother has not kept him informed of her address, in contravention of prior orders (something she concedes), albeit that she says this arose out of safety concerns. He also complains that the mother has not kept him properly and appropriately informed of medical appointments, in effect over-exposes the children to medical treatment, fails to ensure the children appropriately attend school and also complains that the mother took X off his Ritalin medication inappropriately in 2019.
The mother’s material essentially denies all these matters. She says that she withheld the children at the commencement of COVID-19 out of fears that the father would either insist of them going to school when it was dangerous for them to do so and/or would not pay proper attention to their “pre-existing medical conditions”, which realistically means their asthma.
The mother’s affidavit position, like that of the father, is accusatory and refers to a number of historical events predating the 2017 orders. I should, however, say that the tone of the father’s affidavit material is relentlessly critical, including numerous occasions when he accuses the mother of lying. This is all part of the very regrettable way in which these two equally insightless people deal with one another.
THE INDEPENDENT REPORTS – THE SECTION 11F REPORT
The report of Family Consultant Ms D dated 1 July 2020 noted, correctly, in my view:
“There is a distinct and pervasive sense of mistrust between the parents.”
Ms D noted inter alia:
“Mr Chaucer was adamant the mother has used the Covid-19 restrictions to prevent him spending time with the children and he said there had been numerous occasions of her withholding time or manipulating spend time arrangement since final orders were made in 2017 (and prior). He said that whilst the 9/5 term time arrangements were generally consistent holiday periods were almost problematic;
Ms Chaucer said the father has threatened to use the Covid-19 situation to seek primary care of X and Y. She denied having withheld the children for anything other than health reasons during Covid-19 restrictions and denied having withheld or disrupted time during the previous three years; she said she knows the father thinks she is attempting to alienate the children but this was simply not true.
Ms Chaucer said she was concerned the father is not as vigilant as she is with regards to social distancing and she was concerned about the children’s exposure to others, as they both allegedly suffer chronic underlying health conditions, namely, asthma, which increases their susceptibility to Covid-19.
Mr Chaucer disputed the severity of these health conditions and was keen for independent assessments to verify exactly what the children’s health needs are. Ms Chaucer did not want the children to be further assessed.
Ms Chaucer said she preferred the matter be settled by mediation while the father was keen to pursue proceedings and have new final orders made.
Ms Chaucer said she wanted to amicably co-parent the children while Mr Chaucer she he had absolutely no confidence this would be achieved as he believed Ms Chaucer to be manipulative and a “pathological liar” whom he believed would continue to make allegedly false allegations against him.”
Ms D went on to recommend the children remained in the mother’s primary care but that, if practicable, the 9/5 arrangement be reinstated. She also noted that information from the children’s school, Suburb B Primary, might be of assistance and recommended that a family report might be undertaken.
THE FAMILY REPORT OF MS C
Ms C’s report, which was formally received as exhibit C1 when she was called to give evidence, is detailed and lengthy. I have regard to all of it. Nonetheless, given the significance placed upon it by the father and the Independent Children’s Lawyer in particular, it is necessary to traverse it in some detail.
The report noted the earlier 2017 proceedings (paragraphs 2 to 3). The report noted the father’s assertions that the mother had not been compliant with the 2017 orders and had withheld the children from mid-March 2020 until interim orders were made on 19 June 2020, those 2017 orders being reinstated in full from 16 July 2020 onwards. There was a further complaint by the father that the mother had not allowed him to spend time with the children between 30 July to 4 August 2020, because of alleged ill health (paragraphs 4 to 5).
The reported noted that the father’s assertion that, at the beginning of 2021, the mother unilaterally decided to revert to interim orders made in 2020 (a 3/11 rather than 5/9) by keeping the children home from school on Thursday to prevent the father from picking them up on the Friday, something the mother admitted (paragraph 6). The report noted the mother did not want video calls because she felt this was a breach of her privacy (paragraph 7). Having noted the parties’ positions (including that of the mother, who had not then propounded any particular set of orders) Ms C observed that paragraph 10:
“To the best of the report writer’s knowledge, there have been no incidents of family violence between the parties since the last Family Report was completed. Neither party made any allegations about the other during report interviews.”
The report noted that the mother had received medical treatment from Dr E (paragraph 14). Although the mother denied any mental health concerns, notwithstanding she was being supported by a counsellor called Ms F from G Counsellors in Suburb H. The father said he had found the past year very stressful but reported seeing somebody called Mr J from Suburb H Psychology (paragraph 16).
Paragraph 17 to 19 the report noted:
“17.     The mother was firm in her view that the father is being vexatious in bringing this matter back before the Court, despite the fact that this was directly as a result of her actions in withholding the children unilaterally. She does not believe she did anything wrong in keeping the children from the father in the period of time she did, and she denied that it had any significant impact on the children (which was contradicted by the children in their interviews).
18.      X’s behaviour on the day of the report interviews was particularly concerning. His narrative suggests that he is struggling in his relationships with both parents but more so with his mother. While the mother emphasised X’s learning and emotional difficulties, she appeared to do this only to try and accentuate her understanding of his problems in contrast to what she views as the father’s dismissiveness. The extent to which she is able to meet X’s needs is unclear and parts of his narrative indicated that there is a lack of emotional connection between him and his mother.
19.      The father did not seem surprised when the report writer articulated her concerns about X but he seemed defeated by the idea that something could actually be done about it as his view is that the mother is determined to control all access to medical and allied health treatment for the children.”
The report went on to canvass the interview with the father. The father’s accommodation difficulties were noted and the support of the maternal family for the father. The report noted zero proper communication between the parents (paragraph 26) and the difficulties of compliance with the 2017 orders. It noted the father’s complaint of unilateral decisions in respect of medical issues by the mother (paragraph 32). While I have regard to all the matters recorded, perhaps the gravamen of it is at paragraphs 48 to 49 as follows:
“48. Mr Chaucer said that he wants the children to live primarily with him for a number of reasons. He said that he is able to facilitate the children having relationships with their extended maternal family, who are estranged from Ms Chaucer but close to him. Mr Chaucer said that he has a much better record of supporting the children’s relationship with their mother, than she does with him. He said, for instance, that he has never withheld the children from Ms Chaucer, yet she has done that to him on multiple occasions over many years.
49. The report writer queried whether Mr Chaucer believes that a change of his magnitude would be challenging for the children. He said that, “Of course they would miss her (Ms Chaucer) at first, but they would get used to it. I can provide stability and consistency in discipline. I care for them physically – things like brushing their teeth and showering each day – I don’t think their mother does that. I also teach them manners.”

The interview then turned to the mother. At paragraph 50, noteworthily, Ms C observed:
“Ms Chaucer (aged 45 years) presented as a polite woman with a somewhat strange manner. While she answered the questions put to her, she seemed distant and disengaged from the process. It was as if she was going through the motions, believing that it was something of a waste of her time. Ms Chaucer suggested at several points that she believes Mr Chaucer to be what is known as a vexatious litigant, when she has a strong belief that their issues could be far more simply solved by an agreement to cooperate.”
Ms C noted that the children had been withheld from the beginning of the first COVID-19 lockdown and the mother’s explanation (paragraphs 54-60):
“54.     … “Things were very grey at first. So I visited my doctor and asked them how to proceed, because of the children’s pre-existing medical conditions – asthma and ADHD and ODD. And dyslexia. Their father was taking them out to visit family members, before the 5km radius came in. And he didn’t think that COVID was a big deal and he still wanted to send them to school.”
55.      The report writer commented that Ms Chaucer ended up withholding the children completely until the next available court date, which meant they didn’t see their father for almost three months. Ms Chaucer defended her actions saying that she tried to seek mediation “but by that time Mr Chaucer had already filed in court so we couldn’t mediate.” Ms Chaucer wasn’t able to provide a reason for why there hadn’t been the possibility of reaching an agreement outside of mediation other than that she and Mr Chaucer “are not amicable.”
56.      Ms Chaucer said the children were confused at first when they didn’t see their father. She said that they missed him “a little bit” but they would speak to him on the phone once a week. When the report writer commented that this account didn’t accord with Mr Chaucer’s, she said that the children were always available to speak with their father via remote schooling (it wasn’t clear what she meant by this). She said that “the kids accepted that we had to stay home, so it was pretty normal.”
57.      When asked about the children’s pre-existing medical conditions and how they made them more at risk of contracting (and being impacted by) COVID-19, Ms Chaucer said that X had gone to hospital in an ambulance with an asthma attack when he was five years old; that he has had to use a nebuliser “a few times” in his life (apparently triggered by hay fever) and both children are prone to chest infections. They have both previously used ‘flixotide’ (for an unspecified period of time) but are not currently using it “because they’ve been pretty good over summer so the GP said they could back off.”
58.      The report writer asked Ms Chaucer about what had occurred at the beginning of 2021, when she allegedly withheld the children from Mr Chaucer. She said that the orders were “pretty confusing” because the June (2020) interim orders referred to the father’s time being Friday to Monday and with regular phone calls, but the 2017 orders “are silent on the calls” so when Mr Chaucer began insisting on calling the children, Ms Chaucer thought that maybe this meant he wanted to follow the 2020 orders. She said that “it’s been left to the ICL to decide (which prevails).”
59.      Ms Chaucer said that she has been “trying to facilitate the calls but the father is saying I have been breaching the orders because X won’t talk to him.” She said that X is usually too busy and not that interested in speaking to his father. The report writer asked how the children do with video calls. Ms Chaucer said that she does not allow them to have video calls “because of the invasion of privacy issues. Because my son will pick up the iPad and run around the house with it and that’s not ok because I don’t have a good working relationship with the father and he’s extremely litigious.”
60.      In response to the father’s allegations that Ms Chaucer was having the children take PCR tests each time they returned from spending time with their father (leading to X in particular becoming traumatised) Ms Chaucer denied that she had done this. She said that “it was because of all the school rules (about needing one if you were sick) and they were always coming back from him with a runny nose. So I had no choice.”
Ms Chaucer estimated that each child had maybe had six tests altogether since the beginning of the pandemic and the last one X had with her was several months ago, although he apparently had one with his father two weeks before reports interviews were held. Ms Chaucer said that neither child is distressed by the tests “because they are pretty used to it by now.””
The report went on to traverse the difficulties with the transition from school holiday time to term time arrangements and the mother’s opposition to simply swapping over the weekends at the end of school holidays (paragraph 61).
The report traversed the mother’s description of X, noting the challenges that he faces and that the mother thought he had the mind of a nine year old (paragraph 63). The report traversed psychological support for X from K Psychology and that X was now referred to somebody called Ms L, although the mother was unable to say how many times X has seen her (paragraph 64).
At paragraph 65 the report noted:
“In relation to X’s paediatrician, Ms Chaucer said that he is currently seeing Dr M in Suburb N. She said that after Dr O went to another practice, X saw Dr P via telehealth. Ms Chaucer said that it has been difficult to maintain paediatrician appointments because “I get no help whatsoever with costs from the father.” She said that she went to Dr M because Mr Chaucer had run out of medication for X (as noted above, Mr Chaucer said that he has not received a current prescription for Ritalin for X and he has no idea if X is medicated by his mother or not). Ms Chaucer said that she is “not sure” if she will stay with Dr M “because X needs to feel comfortable”. Ms Chaucer gave the impression that X is still on Ritalin, as she expressed her annoyance with the father’s apparent aversion to X taking it (which the father strongly refutes).”
Ms C traversed with the mother X’s relationship with his sister and the difficulties between them. The report traversed the mother’s initiatives to improve her capacity to cope with matters, including attuning to kids’ course and the session with Dr E and Ms F. I note that at paragraph 74:
“Ms Chaucer said she has also done “a lot of work” with Dr E and Ms F about her issues with her extended family “and I feel ok now about decisions I have made. Some people just don’t talk to each other.” Ms Chaucer said that she was not mind that the children still see her extended family members although she believes this was “an advantageous move on Mr Chaucer’s part”.”
At paragraph 77 the report noted:
“Ms Chaucer expressed confidence that she would continue to comply with Court orders in the future. She said that in the past, “all I’ve ever done is to protect me and the kids. Before COVID I had no way to navigate it. We were all struggling. Yes, I could have done things differently but I don’t have a working relationship with the father.””
The report then went on to detail the interviews with the children. Relevantly, at paragraph 79 the report noted:
“… Both children indicated that they wished to have some of their views not recorded in the final report. There was nothing they told the report writer which indicated either child is at risk of serious harm, but nevertheless it is clear that both parents struggle at times to manage X’s behaviour appropriately. It was also quite clear that both children feel subjected to a very strong loyalty conflict, mainly driven by their mother.”
At paragraphs 81 to 82, the report noted:
“81. The report writer asked them if they could recall the time when they didn’t see their father, and how that felt for them. Both nodded emphatically. Y said that it was, “really upsetting because we wanted to see him and we missed him so much! But any time when we asked to call Dad, Mum wouldn’t let us.”
82. Both children indicated that they are acutely aware of their mother’s dislike for their father. They said that they wished she wouldn’t speak so badly about him, as they love him very much. They also said that they would like to have video calls with their father when they are not spending time with him. The children also indicated a high level of awareness that their mother would be very upset if anything were to change in the parenting arrangements, and they therefore felt apprehensive about discussing their views more specifically. Y professed to “love both houses” but she also said that she “wouldn’t mind” if she lived mainly with her father.”
The children described their relationship with their father in relatively uncontroversial terms at paragraph 83. But the report continued at paragraph 84:
“84. It was when the children were discussing their mother that X’s emotional state markedly deteriorated. He became angry and tearful when he talked about how his mother responds to him at times. X feels that he is “treated like a baby” and he feels that his mother makes fun of him. He would like her to stop doing this. X said that his father is also mean to him like this sometimes. He was crying at this point, but then he became yelling aggressively (and without any provocation) at Y. He said that, “I hate it that Y is always getting me into trouble!” He then turned his back on both the report writer and Y and refused to answer any more questions. Y then talked about how her brother “hurts me all the time” and she started crying.”
The children were calmed down by Ms C and at paragraph 85, relevantly, the report said:
“… The report writer suggested that it might be good for them both to see a counsellor who could help Mum and Dad as well, and they appeared to like this idea.”
The report then moved to the observations of the interactions with the parents. The interaction with the father was good-humoured and uneventful and at paragraphs 88-89:
“88. As he was leaving the room (for their mother to come in) both children hugged him very tightly, clinging to him, saying very loudly, “LOVE YOU DAD!” This seemed genuine and not put on for the report writer’s benefit. They then asked if they could see him afterwards and were dispirited when told that was not possible, but they then worked out they would be seeing him the next day for the weekend and they waved cheerful goodbye after this.
89. When their mother came into the room, both children’s energy dropped considerably. X looked sullen and kept his head down. He appeared to be avoiding making eye contact with his mother. Ms Chaucer appeared awkward and uncomfortable and she seemed lost for things to do, even though she had packed the bag with toys and games. Ms Chaucer tried to engage X about the electronic pen he was using. He answered her monosyllabically, with long silences.”
Paragraph 93, the report noted:
“At the end of this session, the children farewelled their mother and settled into speak with the report writer, appearing almost relieved to stop playing and start talking.”
The report then traversed subpoenaed material. It was noted that the Suburb B Public School records indicated that Y was a model student who achieves an above average level, albeit there were 20 days of unexplained absence in 2019 (paragraph 94).
The report noted that X’s concentration improved markedly in 2017 when he started taking Ritalin and that he had been assessed through K Psychology as functioning in the extremely low range of intelligence with dyslexia and dysgraphia. The report noted that at some point between 2018 and mid-2019, X’s compliance with his taking his medication had changed and this led to a general deterioration (paragraph 97).
The report also noted high absenteeism, being 18.5 days absent, usually without explanation and nine days late. Analysis of the days off indicated that 14 occurred on a Thursday or a Friday and the school had wondered whether this was the mother deliberately keeping the children home on days they were due to spend with their father.
School had noted 12 unexplained absences between February and May 2020 but that X had made great progress with remote learning (paragraph 98) with the mother, having really stepped up to help both the children. The report traversed material from K Psychology and the Suburb Q Medical Centre (noting diagnoses of ADHD and asthma in 2018, paragraph 102). The report noted material from the paediatricians and difficulties with X’s Ritalin prescriptions.
In paragraph 109, the report noted:
“The children began seeing Dr M, paediatrician, in July 2020. The patient information form does not contain the father’s details – it is blank. Ms Chaucer reported to Dr M that Y has asthma attacks 5-6 times per year (which is different to what she told the report writer) and Dr M recorded that “there were some difficulties with control” and “she is at risk because of some chest infections.” Dr M wrote a letter in support of the mother home schooling the children which was somewhat negated by the second COVID-19 lockdown.”
The evaluation section of the report then followed at paragraphs 111 to 131. All of it is directly relevant but, given its length, it is inappropriate to set it out in full. Matters of some note include at paragraph 114:
“… It is still not clear to the report writer whether X is taking Ritalin as prescribed although he indicated to Dr M in February 2021 that it made him feel “a bit odd.” If he is taking it, based on the reports of the parties and school records, it is probably inconsistently at best. The thought arises as to whether a level of inconsistency might be contributing to side effects. Two different doctors have suggested alternative medication regimes, but it is not clear from the records as to whether either of these have been trialled.”
At paragraph 116, the report went on:
“The lack of parental cooperation and consensus about how to best meet X’s needs appears to have resulted in a situation where X is struggling to regulate his emotions and Y is bearing the brunt of this. While Mr Chaucer admitted that there are problems between the siblings that he doesn’t know how to deal with (and he would appreciate help with), and X has what Mr Chaucer termed “an anger problem”, Ms Chaucer minimised any difficulties in a manner which was quite troubling, indicating that she either lacks the requisite insight to see the significance of what is happening between the siblings or is dismissive/avoidant in a manner that doesn’t help either child. Whether or not X’s behaviour is because of his inconsistent compliance with a medication regime, or the lack of targeted psychological input, problematic parenting or a combination of all of these things, the impact is quite profound and is likely to get worse without active, sustained and appropriately targeted intervention.”
In the same paragraph, Ms C surmised, (in my view, without any significant proof to support the surmise) it may be that X has a gaming addiction that is not being managed appropriately, particularly if Ms Chaucer regularly allows X to take days off school so that he can play these games.
In paragraphs 118-120, report continued:
“118.   It was concerning how dismissive Ms Chaucer was about the impact of her actions on the children, saying that they only missed their father “a little bit” and essentially that they just accepted the status quo of not seeing him because of the nature of the lockdown. This is in contrast to the children’s statements that they missed their father a lot and couldn’t understand why they couldn’t see or talk to him. Ms Chaucer’s justifications for her actions were weak and spurious. It could be accepted that in the first weeks of the (first) lockdown, everything was in flux, and it was reasonable that many separated parents would have struggled with fears and anxieties about how to best manage the situation without either breaking a new law, breaching orders or putting children at risk. However, as time went on, things became much clearer and any reasonable justification that Ms Chaucer may have had in the beginning of the pandemic response no longer existed. Her actions therefore in continuing to withhold the children from their father were, in the report writer’s view, indefensible under the circumstances, and echo what has previously been said about Ms Chaucer having difficulties with separating the children’s needs from hers.
119.     Ms Chaucer’s reasoning about why she decided to return to the interim orders of June 2020 at the beginning of June 2021 (with the shorter weekend time) was equally spurious and again had the unfortunate impact of placing the children squarely in the middle of the conflict, as their mother either picked them up early or kept them home from school on days that Mr Chaucer would ordinarily have had them. It is simply ludicrous to say that because Mr Chaucer was insistent on speaking to the children when they were with Ms Chaucer, this somehow re-ignited the June 2020 orders, allegedly because the 2017 orders did not specify any forms of telephone contact (so in Ms Chaucer’s eyes, Mr Chaucer could not have both).
120.     Similarly, Ms Chaucer’s approach to the interpretation of school holiday time appears to have resulted in the children going for long stretches of time without seeing their father (apparently up to 19 days).”
Having traversed alternatives that Ms C had raised, the report continued, at paragraphs 120-122:
“120.   … Once again, the report writer cannot see any reasonable justification for Ms Chaucer not considering this arrangement but instead positing herself as being generous by offering what she referred to as “quality time” for the children with their father (the dinner on a school night proposal).
121.     Considering the events of March to June 2020, the mother’s inexplicable unilateral reversion to the interim orders earlier this year (which had the effect of reducing the children’s time with their father from 5 nights per fortnight to 3) and her opposition to being flexible and child-focused when there is an adverse outcome of the orders in favour of the father, it seems evident that where there is a potential loophole, grey area or issue with the orders, Ms Chaucer will adopt an interpretation that serves to undermine the children’s relationship with their father. While she spoke with enthusiasm about working with the counsellor at G Counsellors and the things she has learned which has improved her approach to the co-parenting relationship, there was no evidence of this learning in the way she reflected on the impact of the dispute on the children or her unswerving view that Mr Chaucer is an unjustifiably litigious parent. Her view that there would be no issues if they would just “be amicable”, appears to place responsibility for lack of cooperation solely on Mr Chaucer’s shoulders and Ms Chaucer, in contrast, has only ever tried to do the right thing.
122.     The report writer is also deeply concerned about the extent to which the children are aware of their mother’s antipathy towards their father. This is distressing, confusing and emotionally destabilising for them, as her views are in direct contrast to their lived experience with him. The level of their knowledge of the conflict and their mother’s feelings about what is the ‘right’ thing to do, prevents them from voicing their views openly and without fear of reprisals (hence their insistence on keeping back a lot of what they told the report writer). While they are clear that they dearly love both parents, they were afraid to talk about how each parent was able to meet their needs (or not).”
The report when on to traverse the inadequacies in the father’s present housing situation, which Ms C did not think vital (paragraph 123) and repeated observations about a strong loyalty conflict due to the mother’s lack of support for their relationship with the father (paragraph 124).

At paragraph 124, the report went on:
“… She has demonstrated a pattern of interpreting orders according to her needs and a continuing lack of insight into the impact of her decision making on the children’s emotional wellbeing. This is particularly dangerous for X, who has innate and highly complex challenges that require a sensitive and emotionally attuned approach to parenting.”
The report went on to consider an equal-time regime at paragraph 125, noting the difficulties of the lack of parental collaboration, and concluded, at paragraphs 126 to 128, to traverse some of the matters that concern Ms C about the mother. She noted the issue of the ADHD medication, which the mother appeared to be personally ambivalent about (paragraph 126). Ms C noted the assertively dismissive approach of the mother to issues in the relationship between X and Y (paragraph 127):
“… as well as the fact that X has not had any recent input for emotional and behavioural support (and he was diagnosed with GAD in 2018 by Dr O) indicates that Ms Chaucer may lack the skills to respond appropriately to X’s complex needs, which are likely to become more pronounced and challenging as he enters adolescence. X’s narrative about his relationship with each of his parents, as well as observations on the day of report interviews, and the parents’ individual reflections on X’s challenges, suggests that of the two parents, his father has a greater capacity for understanding and responding to X’s emotional needs. Associated with this is the fact that, in 2018 and 2019 both children had high rates of (unjustified) absenteeism and Ms Chaucer was largely unresponsive to the school’s concerns about this. This pattern had begun to develop again in 2020 which means that it is likely to have continued if the lockdowns hadn’t been put in place. In 2021 the school have indicated concerns about X’s level of disengagement and his attitude to work. Given his significant learning difficulties, X needs parents who can put clear, firm, and consistent boundaries in place about school attendance and the completion of extra-curricular work.”
The report went on to assert, at paragraph 128:
“Thirdly, the report writer has no confidence that Ms Chaucer recognises the impact that her attitude towards the father’s relationship with the children is having on them and the harm this does (as per the children’s narratives). She perhaps feels emboldened by the 2017 orders to act with insouciance (indeed, she referred to now feeling “protected” by the Court). Even if the children are spending seven nights each fortnight with their father, they will go back to their mother and likely be subjected to intense questioning about everything that happened at their father’s house, which will continue to keep in the middle of the conflict and cause them to feel anxious, confused, and frustrated. It cannot be overstated how this is the last thing that X needs. It can be speculated (with some confidence) that X’s anger is largely driven by this emotional turmoil and his cognitive and emotional inability to process it.”
The report went on to recommend that the children live primarily with their father, because he was more likely to facilitate the relationship with the mother than the reverse and because the father would better manage X’s needs in a consistent fashion and arrange appropriate levels of support (paragraph 129).
The report recommended that, in this event, the parties would need specialist input, such as from a parenting coordinator, to ensure the children were able to move between the houses comfortably and with no loyalty pull (paragraph 130). The report recommended sole parental responsibility for the father and time with the mother each alternate weekend Friday to Monday, and half school holidays. The report went on to recommend as a matter of urgency and on an interim basis, a return to counselling ideally with K Psychology, with parents equally involved.
THE OPENINGS AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes.
Counsel for the father opened the case. He noted that the father was 46 and lives at Suburb R. He is on a disability pension and has bad knees and anxiety. He is a tradesman and hopes to obtain work during school hours. The wife is 44 and lives at Suburb N. This is a 50 minute drive. Neither parent has re-partnered since separation in 2014. X was born in 2009 and Y on in 2011. They both attend Suburb B Public School.
There were orders made in 2017 that the children live with the mother in a 9/5 arrangement. There had been a family report by Ms T and psychological assessments of both parties. All of these had been read by the present family report writer. The father sought that the children would live with him and that he have sole parental responsibly. He adopted all the recommendations of the family report and was supported by the Independent Children’s Lawyer. The main issue disclosed by the material was that the mother does not support time with the father.
The mother seeks that the previous orders continue. The only exception to the Independent Children’s Lawyer’s proposed orders that the father takes is that time should be on Friday 3:30pm to Monday and extended for public holidays and that whole weekends should be provided for from Friday to Monday school in proposed order 4(g) and 5(a).
He sought that there should be video time while in the mother’s care. He also sought that he nominate medical practitioners.
THE EVIDENCE OF THE FATHER
The father was called and adopted his trial affidavit as true and correct.
Under cross-examination by the mother, who was self-represented, it was put to him that he was on a disability pension and unemployed and that he had several strokes in his eyes and lived 45 minutes from the school. He said he was 100 per cent able to look after the children. He had a stroke in each eye which blots out parts of his peripheral vision. Otherwise, his eyesight is 20/20. He has a driving licence which is not subject to conditions. He is able to look after the children and has done so during school holidays. He has network support if necessary. He has not been medically assessed as to whether he is able to look after the children.
The mother cross-examined about his disability. He said he had always had lower back problems and he had also had knee surgery. He had fibromyalgia and anxiety contributed to by stress. The report of Mr U has said he had an adjustment disorder which was causing health issues. He accepts that he had a disorder but he is not having any difficulties.
It was put that he lives in shared accommodation. The father said he had never lived in shared accommodation. He has a large caravan. This is on a property which also has his mother’s home and his brother’s home. He and the children sleep in a very large van. The children have their own bedrooms. He then clarified that he meant that there were two privacy screens. There was one screen at his end and one where the children sleep in bunks.
The mother (whom I should say presented as well able to conduct cross-examination) asked about the children’s health and in particular X’s ADHD. She asked how this would work given his living arrangements. The father said things were fine. There were two houses in which the children could reside. There is an uncle and his children who are cousins of the same age as X. There is 15 acres of land. His family is close. Staying there will not affect X’s ADHD.
The mother asked why she had told him that he could not see the kids again and he said that was what she said on the day. He very much disagreed when the mother put it to him that she had not said this. The mother cross-examined about an attempt to mediate through Suburb V Counsellors. He said that they had made contact with him but he had already started legal proceedings. His answers were a little difficult to follow but I understood him to accept that he had refused to mediate because he had no confidence that the mother would agree.
It was put that he had always had a relationship with both children and seen them, to which the father replied that for the most part yes. He was asked if he accepted the children had medical conditions. He said he believed they have asthma but he does not have access to the medical professionals. The mother pressed him that he did not believe in the children’s illnesses. He said they had asthma and X had ADHD. He had not been told of any others. He said he gave the children the puffer when they needed it. It was put that the puffer was preventative and needs to be taken regularly. The father said he gave it regularly when required. As of late he was only giving it when it was needed it. He was not aware that it was meant to be regular.
The mother put it to the husband that he says their son had no disability and that he tells him that. The father said he was unaware of anything, save ADHD. X has problems with hand coordination when writing and has problems reading too. He tells him he is not disabled. He has not told him he has a disability. When asked if he accepted that ADHD was a disability he said ADHD is a disability in a way. When asked how long he had known that the children had difficulties the father said for quite some time prior to COVID-19. He was aware of their asthma. He always has a pump in the car and another in the house. He has also given Ritalin. This was all the time, not just during COVID-19. The father was cross-examined about an occasion when his daughter had HSP. He said he was unaware that she had HSP. She only had slight rash on her leg and thought it was an allergy from tea trees she had been in the night before. She seemed fine when he returned her to the mother. He can recognise when children need medical care, 100 per cent.
The father was asked if believed that the mother was actively following the court orders and he replied, “To some degree, yes.” She asked why he believed that she was constantly changing dates and times. He said he had no idea why she was doing it. He said she seemed to interpret the orders differently to how the lawyers do. It was put that he struggled to interpret court orders. He responded that it was difficult to understand orders but that is why he checked with a lawyer.
It was put that the children were caught in conflict at school. He disagreed that she had tried to resolve the matter. He was asked about an AAT hearing and he said this was to work out Child Support based on time she actually spent with the children. He denied that his daughter was scared when picked her up but says she was scared of the mother’s response. He agreed that the children would be distressed if they did not know who they were to return with.
When asked if he wanted a positive relationship with the mother he said of course he did. He was asked why change of residence would achieve this. He said they would still spend time with her. When asked why he thought that the change of residence was in the best interests of the children he said he agreed with the family report writer and adopted her reasoning. He believed this even though the children had lived with the mother for their entire life.
He was asked as a father what would be the effect of a change to residence. He said he saw good things. There would be stability. The children would go to school regularly and receive medical treatment. There would be a great deal of family around them and they would have constant support. He has had the children for up to 12 days when they were not in school. When asked if he had brought the application based on the COVID-19 situation he said predominately yes. Although the mother had contravened regularly before COVID-19, there had been nothing like this before. COVID-19 was the tipping point.
He said he was not qualified to say whether asthma would justify COVID-19 hesitancy on the mother’s part. He said he had no problems with the children going to school if they were fit. The mother had stated that there was medical evidence the children should not go to school but would not provide the doctor to him. She did not tell him what he needed to do about it. When it was put he still wanted to send the children to school he said his doctor said the children were well. He said she was an alienating mother. She was trying to make it three nights. He said he believed that she has been actively alienating them.
He was asked if he had ever asked to be involved with the children’s medical practitioners and he said he had. He was aware of K Psychology before the 2017 orders were made. He was asked whether he had asked about medical matters he said he had done this many times. He had asked to see X’s paediatrician but she had declined. He disagreed he had made an attempt to see the paediatrician at separate times. They did see the paediatrician at separate times. If the children were with him, he would take them to his GP and, in emergency, straight to hospital.
It was put that he had taken children to medical appointments without the mother’s knowledge. He was not sure about the Suburb W clinic, which was for child psychology. Everything else she would be aware of. He does not tell her every time the children are taken to doctor. Only rarely does he take them to the doctor. He only tells the mother when it is serious. He said it was his responsibility to get Ritalin but he can only do so when he can see the paediatrician. It is hard to see him. He cannot see him without the children. He had to wait for school holidays. If the children were living with him, he would have the children full-time. He might get a new paediatrician.
The father was asked why X had stopped his Ritalin in 2018 to 2019. The father said that X stopped because she took him to a paediatrician and told him he no longer needed it. He had received a letter from her saying this. The paediatrician said in the letter the child did not need Ritalin. The children should see doctors when they need it. He takes them to one doctor, which is better than multiple doctors.
The mother cross-examined about paragraph 20 of the trial affidavit. The father said the issue about underpants had been going on a long time. X had come the previous weekend without underpants. He said he washes all their gear. He had asked X who said he had not come in underpants and did not have any. He said he provided underpants and had bought some.
When asked about contact during the time that the children were withheld the father said that when she had kept them for three and a-half months there were four very brief phone calls. The children were asking to spend more time with him.
He had followed court orders at all times. He could go up to 20 days without seeing the children on the mother’s version of the orders. He had not gone to court because he did not have the money. He could not go to court on his own. The mother was sent two letters from two different lawyers about the orders but never replied.
The father was cross-examined about paragraph 68 of his trial affidavit. He said he was not aware of child protection at the time but was told later. DHS come to the school and interviewed him. The lady at the school told him it was confidential. He had not seen the DHS material.
He conceded that most of the time the children, for the last 9 or 10 months, called him on a weekly basis. When it was put the children had an established school and home and friends, he said he assumed so. He said he would not remove them from this environment. They will still see their friends regularly. His plan is to get a residence as close to the school as possible.
Ms Chaucer finished her cross-examination by making a statement. They had been months down the track with COVID. More clarity was necessary. She had never tried to alienate the children and does her best to make the children spend time with the father.
Under cross-examination by counsel for the Independent Children's Lawyer, the father confirmed that he had had a good relationship with the parents since he first met her. Some time on the part of the grandparents had, however, been lost. His parents only see the children when they are with him. The mother has one brother, Mr Z, with whom he has a good relationship. The mother does not speak to any of her family. In answer to a question from the court, the father said that ADHD affects X in various ways and he needs Ritalin.
In re-examination, the husband clarified that he has two apps on his phone which list all new rentals. He is making applications and wishes to be as close to the school as possible.
OPENING AND EVIDENCE OF THE MOTHER
The mother opened her case. She had never objected to her family seeing the children. They have not asked her. She had wanted to go to her mother’s funeral but the father objected. She regularly tries to facilitate time with the father but there have been some hiccups. There are grey areas in the court orders. Otherwise, there has been consistency for 10 to 11 years. She has not tried to alienate the children from the father. They do not have a great working relationship and it could be done better. She had never failed to comply with orders. The children are loved and have no problems and live in a safe environment.
The mother was called and adopted her affidavits as true and correct. The following day, when her evidence-in-chief continued, the mother said that the AAT was concerned with weekends and she tendered exhibit R1, a copy of part of the decision of the Tribunal. She tendered as exhibit R2 a document from the Suburb AA Early Learning Centre in October 2015. She tendered as exhibit R3 a text that she had sent to the husband in 2015 about her mother’s funeral. She tendered as exhibit R4 an extract from COVID-19 guidelines published by the Victorian Government. She tendered as exhibit R5 a text she had sent the father in 2021 seeking to resolve matters. She tendered as exhibit R6 a letter from Dr O dated 5 June 2019 which relevantly asserts:
“X will be having a trial without Ritalin medication is order to assess the efficacy. Please stop the medication at school for 2 weeks initially and restart when his mother informs you if needed.”
The mother tendered as exhibit R7 a number of recent texts passing between the parties. Finally, she texted as exhibit R8 emails relating to her interaction with Ms C, the report writer.
THE MOTHER UNDER CROSS-EXAMINATION
Cross-examination commenced with a series of questions about the difficulties alleged to flow from interpretation of the current orders. Counsel put that confusion suited the mother, she had not put any firm proposals and there was tension after every holidays. The Mother disagreed.
Counsel asked about the current arrangements and the mother said she had highlighted three areas of concern. She said that Wednesday nights were not in the 2017 orders. When asked what she meant by consistency over weekends, she said, “If the school holidays were removed, it should be alternate weekends.”
She was cross-examined about changeover times on Christmas Days. She preferred the orders as they are. She said 3:00 pm works for her but 5:00 pm is not a big deal. She did not agree that the children should be allowed to make telephone calls to the other parent at any reasonable times. They have been telephoning for the last 10 months. She only wanted telephone contact. She did not want video, FaceTime or Skype because this was an invasion of her privacy.
It was put that the kids liked video time and she agreed. They would enjoy seeing the person they were talking to. She did not, however, want video calls at all. She wanted calls at specific times and wanted the same times as the father. She was asked about Wednesday 6:00 pm to 6:30 pm but said that while this was fine, they were using 5:30 pm to 6:00 pm, which was working. Once a week was enough. She would want more time for telephone time, however, if the children were living with the father. Perhaps there could be a call on a Monday also.

The mother did not agree that the father should control medical appointments. When asked about Family Wizard, she said she did not know what it was. When asked about communication by the father with SMS or email, she said this was okay but there should only be one contact per week for the father. She was opposed to passports issuing. She does not want the children to go overseas at the moment. This could wait until they were older, probably when they were 14.
When asked about order 16 of the Independent Children's Lawyer’s minute, the mother said she already sends all the things the children need to the father. When asked about order 18, namely, the father engaging Child FIRST (Child and Family Information Referral and Support Team) to assist new living arrangements, understandably, she was not in a position to comment, given her opposition to this proposal.
The mother was asked questions about the family report. She opposes the recommendations. The report was wrong in certain areas. The mother was cross-examined about paragraph 117 of the report in which it was noted she had described the father as vexatious. She said it was not just this application. She believes he likes to litigate.
I should interpolate and say that the wife’s evidence on this view was evasive and non-responsive and was characterised, as was her evidence more generally, by putting answers to questions she formulated for herself.
The mother was cross-examined about paragraph 18 of the family report. She did not agree. Counsel put it that from her perspective, X did not have a good relationship with his father. The mother said that X struggles but does love his father and loves Y also. Counsel put it that it is the mother’s view that the father is dismissive of X’s issues and she said she agreed. She said she feels more understanding of X’s difficulties. She did not agree that there was a lack of emotional connection between her and X. Children change. As they get older, they need to change.
It was put that the father has a good relationship with her family. She said she had not spoken to them. She had last spoken to them eight years ago. She then qualified the answer and said some was six years ago. She was speaking to her mother at the time of her death. She has not spoken to her father for a long time. Maybe five years. With her brother, it was probably six years. She has no other immediate family members.
It was put that her father and brother have a working relationship with the father. She agreed and said she believes he lets them see the children. She has never stopped the children from seeing anyone.
Counsel put it that the children had not seen the father from 24 March 2020 until court orders on 19 June 2020 and the mother agreed. Counsel took the mother to exhibit R4, being the Victorian Government COVID-19 document. She agreed that there were court orders at the time. It was put that she had chosen that there be no time from March to June 2020. The mother agreed that this was the timeframe. She had a reasonable excuse. She had not been directed into quarantine. Travel was not banned. She was self-isolating.
She said that she offered phone time and her lawyer had written to that effect. Counsel asked if, in hindsight, she still thought her behaviour was reasonable. She said it was a difficult time. She did not follow the court order but there is a reason. The children have pre-existing medical conditions that the father does not acknowledge. She was concerned about asthma and COVID-19. She had advice as well. It was put that time then started but the mother replied that the father likes to litigate.
It was put that she stopped time again in July to August of 2020. She said this was to do with interpretation of the orders. There were the 2017 and also the interim orders on top. There was a lot of confusion. She agreed that orders were made on 16 July 2020. She has not allowed time on 30 July because she said the orders were confused. She said she was under instruction to proceed like that and the Independent Children's Lawyer was involved.
It was put that in early 2021, she had reduced time to three nights. She agreed and said this was done on instruction. It was not because video time started. She continued phone calls. He wanted five nights and phone calls. She gave the father some additional time during the three months off.
Counsel asked about paragraph 53 of the family report which recorded the mother saying that she felt very protected by the court. The mother said she did not believe she had said that but she does feel protected by the court.
When taken to paragraph 54 of the family report, the mother said that asthma was still the big issue. There would be respiratory conditions. This was part of it. ADHD and ADD were also. When asked if X’s dyslexia was a part of it she said these were also reasons why she has stopped time. COVID-19 would have effect on these conditions. The children are now seeing the father in accordance with the orders.
Counsel cross-examined about paragraph 56 of the family report in which the mother described the children as missing the father a little bit during their absence. She said that they missed him initially because it was out of routine. She did not recall saying “a little bit”. Then they began speaking on the telephone. It was not ideal. They accepted it in the end. It was put that the mother had thought they should not see their father. The mother responded she had not sent them to their father. She did not know she was correct. The children could speak on the phone. There was constant texting over remote schooling.
Counsel put it the children had had six COVID-19 tests. The mother said they had a maximum of six texts and about half were after being picked up from the father. Counsel put that these tests suggested to the children that the father was a danger but the mother said no. She would expect him to do the same. She had had maybe four COVID-19 tests.
Counsel traversed paragraph 58 of the family report. The mother said this was definitely part of the problem. Confusion with the orders had led to problems. The mother conceded that she had said that the matters attributed to in paragraph 60 of the family report about the children returning with a runny nose and getting used to COVID-19 tests. Counsel put it that she thought that the children were at risk in the father’s care. The mother said they were. She is compliant with orders now.
Counsel cross-examined about paragraph 73 of the family report and the mother’s interaction with Dr E. The children have asked why they have to go to their father’s. Sometimes they do not want to go. The last time was a few months ago. All children sometimes struggle when there is a change between parents.
Counsel put it to the mother that she did not think the father offered much to the children and the mother did not, as far as I could see, answer the question. When asked what the father offered the children she was unable to say. When asked what the father provides as a parent the mother said, “Hopefully he fulfils the father role for them. Most of the time it is positive.”
The mother said that she has complied with court orders in the past. When asked what she was referring to in paragraph 77 of the report when she said she protected the children the mother said this was a reference to COVID-19. There was no working relationship with the father. The father does not acknowledge the children’s medical conditions.
When asked about paragraph 81 of the family report in which the children said how much they miss their father she said she had no comment. There are times they wanted to make telephone calls when they did not make a call.
When asked about the last sentence of paragraph 79 in which the report writer opined that it was clear there was a strong loyalty conflict mainly driven by the mother the mother said that she did not know if that was an opinion. They suffered perhaps from the loyalty conflict but it is not driven by her.
Counsel referred to paragraph 82 of the report put it to the mother that she disliked the father. She said they do not have a good working relationship. She has worked hard for over a year to take the dislike out of the equation. When asked, “Do you dislike the father?” the mother provided no direct answer. She said she did not have an answer for that. The children know they do not have a great relationship. She would not say she likes him. She tries very hard not to dislike him. She does not know if the children know this.
The mother agreed that the children love their father very much. When asked if she accepted that they want video calls she said, “If that is what they said.”
Counsel cross-examined about paragraph 84 of the family report and in which X’s emotional state deteriorated when discussing his mother. The mother said X was tired on the day, which might explain this reaction. She had read paragraph 87 of the family report. She said, “The children would greet him with affection. There is a good relationship between the children and the father. That is nice. They have a relationship with the father. Sometimes there is struggle. They love their dad.”
When asked about paragraph 89 of the report, which recorded the children becoming flat when she entered, the mother said that it was just calm when she walked in. The just continued playing. They said, “Hi Mum.” They were playing as normal. X looked busy so she let him do his own thing. When asked if she had felt awkward she said, “Maybe somewhat.” She had not recalled the electric pen recording. When asked about long silences she said that was nothing out of character for their son.
When asked about paragraph 91 of the family report, which recorded inter alia the mother looking impatient for the session to conclude, and asked if it was accurate she said she had no comment. She has a great relationship with the children and sometimes they are like that.
The mother was asked about the children’s absenteeism. When asked about X missing 18 and a-half days usually without explanation the mother said she had not seen the subpoenaed material. Any time off might be for appointments. She could not comment on 14 days being missed on Thursdays and Fridays. She said it could not be 14. This had come from the father. The school has not talked to her about Thursday or Fridays ever.
When asked about paragraph 99 of the family report the mother said it was true. The DHS came to discuss things with the children. She had asked to be present.
The mother disagreed with paragraph 111 of the family report, which recorded concerns about the mother not complying with court orders and putting her needs before the children. She was asked what value she ascribed to the relationship with the father. She said she had worked with G Counsellors for over a year and had done the Growing Into Children course. When pressed as to what values she ascribed to the relationship with the father she was unable to answer.
When asked about paragraph 116 of the family report the mother disagreed. She had not been dismissive or avoidant. With respect to targeted intervention she said it depended what it was. She was not sure if she opposed releasing the family report to a counsellor.
When taxed with paragraph 118 of the family report and that she wanted the children to live with her and have the father’s time restricted the mother said that was just the report writer’s opinion. She denied that she would interpret orders to undermine the relationship with the father and did not accept that at all. When asked about paragraph 122 of the family report and the writer’s observation about the extent to which the children are aware of her antipathy to the father she said she had no comment. She said if the matters recorded there were correct, it is terrifying. She did not accept the observation at paragraph 124 of the report that X was in danger as a result of her pattern of interpreting orders according to her own needs.
Counsel for the Independent Children’s Lawyer did not elect to put any questions additional to those of counsel for the father.
THE MOTHER IN RE-EXAMINATION
The mother revisited exhibit R4. She said she had a reasonable excuse. It was based on pre-existing medicals. The father does not accept the health issues. Both children struggle in their relationship with the parents.
Turning to paragraph 73 of the family report, the mother said that Dr E worked with the father and her and the children over the last three years. She disagreed that there was alienation. It was an unprecedented time. She cannot communicate with the father. There was a need to make the children safe.
THE EVIDENCE OF MS C: THE REPORT WRITER
Neither counsel for the Independent Children’s Lawyer or counsel for the father put any questions to Ms C.
Ms C’s report was formally adopted and tendered as exhibit C1.
Under cross-examination by the mother Ms C confirmed that she has been undertaking family reports for 12 years. A significant number of children have presented with similar diagnoses to X. Ms C confirmed that there was no other information upon which she had relied other than that listed in her report. She confirmed that the mother had opposed video calls because she did not want the father to see the inside of her house.
The mother cross-examined about the report of Mr U, a psychologist. Ms C said this was just one piece of material. There were many others and it was his opinion. She had not given it any particular weight.
The mother cross-examined about paragraph 17 of the report. She asked if Ms C was aware that the father did not understand the children’s underlying health difficulties. Ms C said this paragraph reflected the mother’s views. It was characteristic of her interactions with her. She was entirely within her rights to hold these views.
When asked why she had referred to the lack of emotional connection between the mother and X in paragraph 18 Ms C said this was a very big question. Her opinion was based on the observations she had made of the mother and X. Also what X told her. X did not want this recorded in the report. There was also what the mother had said to her about X. She was very concerned by some of the things the mother told her and the ways she responded to her.
When asked if she was aware about K Psychology and that they had been recommended to return to K Psychology, Ms C said she could not get clear information from the mother or the father about K Psychology. “The mother told me that they had been discharged from K Psychology because they were fine.” The mother put it that X had been to K Psychology towards the end of last year and had had a couple of conversations this year. Ms C said it was still not clear if there was ongoing treatment. It was vital the children get psychological input.
The mother questioned about paragraph 19 of the report. She asked if Ms C was aware the father had taken the children to the doctors without telling her. Ms C said in the report she had referred to the father saying that the mother booked all appointments during his time and not telling the father until the actual day. “Neither of you had been clear about this.”
She would not have changed her opinion if she had known that the father had been taking the children to doctors.
The mother asked about Ms C’s opinions of the father in paragraph 20. Ms C said she takes people as they come. She knows that it is often difficult for interviewees. She was asked about how often she had seen the mother. She said she interviewed the mother twice. One was face to face and the other Zoom. The first interview was two hours and the second was one hour. It was much the same with the father. She then had an extra half hour with the father about his new living conditions.
When asked if a caravan was a suitable living environment for children, Ms C said this was a value judgment. She was far more interested in the relationships between the child and the parent. She accepted photographs from the father because the mother had raised it, and it looked perfectly adequate. The sharing of a sleeping area for the children was not optimal, but it is not always bad.
Ms C confirmed that the father’s observations about the difficulty of interpreting orders had no impact on her report. When asked if it would have made any difference if there were lawyers instructing the parties when there were difficulties about interpreting court orders, Ms C said no. She said the parents instruct lawyers that they will do or not do things. The involvement of lawyers does not legitimise it.
Both parties had said that time at the end of school holidays was difficulty. She was most concerned at the end result. The children would end up spending extensive time without seeing their father. She had made suggestions to overcome this, but the mother said this would not help. What the mother appeared to want appeared to be in her favour. The mother put it that Ms C was inferring that she was trying to minimise time, and this was her primary concern, and Ms C agreed.
The mother asked if she thought the mother was an alienating mother. Ms C said that “alienating mother” is not a term she uses. Professionals do not use it. What she had described was not her stopping the relationship with the father, but it was a marginal relationship. The mother did not think it had value. She would like the children to spend the least amount of time possible with the father. She said, “You don’t think it’s important”.
There was compliance with orders but a strong pattern of her restricting time with the father. If the pattern continues, the relationship with the father will diminish, because the mother does not ascribe value to it, whereas the children ascribe significant value to it. She was aware that there was regular contact with the father, but the relationship with the father is still minimal or a marginal one. They had gone months without seeing their father and desperately missed him.
The mother asked how it would help if there was a change of residence. Ms C said a change of residence was not a first option, and she would only recommend it if it absolutely will benefit the children substantially. The reason was that the father was better able to support a relationship with the mother than she was in reverse.
Ms Chaucer said that the report was conducted without a proper basis, over a three-hour period. She disagreed with a lot of it and said that there was extreme defamation of character.
Ms C responded that family reports are hard for parents to read. It is judgmental. She understands that it would be confronting for the mother to read it. Her job is to form an opinion, and that is what the report is.
When asked if she was aware that the father was speaking on the telephone for 11 months, Ms C said the father had said it was not as regular as mother suggested. X was not generally speaking. The children said she was not supportive of phone calls. Regardless of orders, children should be allowed to speak to the other parents. She was aware of the children’s medical conditions. When asked about paragraph 60 of the report, mother put it to Ms C there was an inference that she had been traumatising the children by multiple tests.
Ms C said that was what the father alleged. When asked if the father should provide Ritalin for X, Ms C said if the child is prescribed medicine, both parents should have it and should fill scripts. She had not spoken with the health professionals and had not spoken to G Counsellors. In her experience, G Counsellors will not talk on the record. She had read the K Psychology subpoenaed material.
Ms C confirmed her opinion. It was from the events since the last orders. There was a pattern of behaviour with the mother interpreting orders to keep the children with her. There was a pattern of marginalising the children from the father, particularly in the absence last year and what the children told her about the mother’s views of the father and trying to reconcile this with their lived experience with him.

The mother asked Ms C whether she had asked Y if she wished to live with her. Ms C said she never asked children if they want to live with the father or mother. She asked much broader questions. The children were talking about wanting more time with the father.
The mother asked if the children would be upset if there was a change of residence. Ms C said the way children would adjust depended upon how she and the father conducted themselves. It is important particularly so that the children are not blamed. This would have an impact. It was a significant move. She had taken the stress of interviews into account. It is common with children in family report interviews. The children were not confused and were consistent in their narrative. They were stressed about saying things that the mother did not want them to say. The children were not coached by their father. She was not saying the mother coached them. The children are aware of this from living with her.
The mother asked questions about paragraph 101. Ms C confirmed that the children need privacy. She questioned why the records should not be subpoenaed. The previous report writer had not influenced her report.
Mother asked if the children had talked about how both parents were unable to meet their needs. Ms C said the children do not talk in those terms:
“The children wanted more time with their father, and you were not meeting that.”
She agreed stability, consistency and a working relationship were in the best interests of the children. She had outlined the mother’s proposal for post-holiday transfers in her report. She outlined the mother not accepting her proposal too. The children would still attend their current school and maintain friends. There would be some disruption. There would be a commute to school. The cost was outweighed by the benefits of a move. They would still have a relationship with the mother when living with her.
The mother asked if the children would be upset if there was a change of residence. Ms C said the way children would adjust depended upon how she and the father conducted themselves. It is important particularly so that the children are not blamed. This would have an impact. It was a significant move. She had taken the stress of interviews into account. It is common with children in family report interviews. The children were not confused and were consistent in their narrative. They were stressed about saying things that the mother did not want them to say. The children were not coached by their father. She was not saying the mother coached them. The children are aware of this from living with her.
FINAL SUBMISSIONS OF COUNSEL FOR THE FATHER
Counsel indicated that the father is asking the Court to make a big decision. He adopts the family report entirely and its recommendations. The family report writer was even more strident in her views under cross-examination. The Court should follow the family report. The mother agreed times is alternate weekends with school holidays intervening. Confusion about weekends with thus would dissipate. She also agrees 5:00 pm Christmas Eve and Christmas Day. So far as video time was concerned the mother opposed this but the children like it. It should be on Mondays and Wednesdays between 5:00 pm to 5:30 pm. Video time was of value to the children.
It was submitted that sole parental responsibility was clear. The father should also have the entitlement to arrange medical appointments. The order to give the family report to Allied Health professionals was opposed by the mother but should be made. In short there were difficulties with the change but the benefits outweighed the negatives.
FINAL SUBMISSIONS OF COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER
Counsel observed that he could not add to Mr McLeod’s submissions. The children have been suffering too long and there were risks for their future. The children should live with the father who should have sole parental responsibility who should arrange medical appointments. The Independent Children’s Lawyer sought an order that the father notify the mother of all arrangements. The father should not change medical practitioners unless it was desperately needed. Then there must be a written authority for the mother to be admitted to all conferences and have access to all medical practitioners. There will be exceptions for emergencies such as an ambulance for falls and the like. There might be an issue about schools but the father is trying to move closer. It is a very thorough report that he adopted its recommendations.
FINAL SUBMISSIONS OF COUNSEL FOR THE MOTHER
The mother submitted that the report writer utilised one approach which would not work for their family. The strong defamation of character without justification. The change of residency could not for one minute be in the children’s best interests. She had raised the children since they were born and there was no Child Support from the father. She never had anyone say she had done a bad job until this report writer. She had done her best. They never had trouble with the police or department involvement. She was invested in bettering herself. She is studying different areas working with children courses. The children have never been harmed. One of them is disabled and she has never had any support. The children should still have a relationship with their father and she has acted in their best interests. She was extremely concerned for their safety. She had to decide whether to break the court order because she felt the children were at risk. She disagreed with a lot of the report. There would be disruption if they were to move. If the children live with the father she would not be able to provide to the extent to which she has been. The final orders she sought were fair and reasonable.
SOME BRIEF OBSERVATIONS ABOUT THE WITNESSES
The father was in the main a witness I would describe as unremarkable. His effect was somewhat dull and downcast at times but his answers were generally direct and responsive. This is perhaps all the more so given at times insinuating and unsatisfactory (in the sense that they tended to distort the evidence upon which they were raised) questions put to him by the mother. What did emerge for me however was a certain lack of insight. Like the mother he seemed fixated on this expression “pre-existing medical conditions”. His incapacity to appreciate that this just meant that the children’s asthma and X’s additional difficulties such as ADHD and fine motor difficulties struck me as being striking. It is apparent that both parents have become slightly obsessed with this phrase. It is erroneous of course because the existing conditions while clearly pre-existing continue to exist. They are not pre-existing, or existing, they are simply the conditions from which the children suffer.
I was also struck by the father’s failure fully to accept the extent of X’s difficulties. I observed during the currency of the proceeding that it is all too common in parenting disputes involving children with difficulties that the mother thinks that they are far worse and the father far less. That is certainly the case here. The father needs to understand that ADHD is indeed a disability (whether technically correctly or so defined or not) and to take proper steps to manage it and to assist X in doing so, whether he lives in his primary care or not.
The mother struck me rather I think she struck Ms C. She was certainly articulates she seemed to be well prepared and able to conduct her case notwithstanding her application for an adjournment to get legal representation and that is something I denied for reasons given at the time. She seemed slightly strange. Some of her responses to straightforward questions were clearly evasive as I have above already indicated. She was not prepared to admit what is in fact patent, namely the extremely negative view she has of the father, which is as I accept however in part derived from or reinforced by a lack of full understanding on the father’s part of X’s medical conditions in particular.
It is not normally appropriate or necessary to comment upon the credibility of the professional witnesses, but given the fact that the father and the Independent Children’s Lawyer have based their case squarely on Ms C’s report, and the mother puts it all in issue in the strongest terms, it is necessary to say a few brief words.
It is sufficient to say that Ms C was an outstanding witness. She responded clearly and very directly to the questions put to her by the mother. She was not defensive or accusatory of her. She was not swayed in cross-examination one iota. She was a professional witness with twelve years’ experience who was giving evidence in her area of expertise. I will deal with some aspects of Ms C’s report when I come to that section 60CC matters. It is sufficient to say in terms of credit she emerged completely unscathed.
It is time to turn to the statutory pathway.
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]     In summary, the amendments to Pt VII have the following effect:
1.        Unless the Court makes an order changing the statutory conferral
of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.        The making of a parenting order triggers the application of
a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence
(s 61DA(1) and 61DA(2)).
3.        If it is appropriate to apply the presumption, it is to be applied
in relation to both final and interim orders unless, in the case of the making
of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4.        The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.        When the presumption is applied, the first thing the Court must do
is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each
of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child
to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7.        The concept of “substantial and significant” time is defined
in s 65DAA to mean:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends and holidays; and
(b)       the time the child spends with the parent allows the parent
to be involved in:

(i)        the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.        Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.        The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.      When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal
or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever
it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.      The child’s best interests remain the overriding consideration.”
PARENTAL RESPONSIBILITY
The Court is of course required to consider an order for joint parental responsibility unless the presumption is rebutted or has not been found to be in the children’s best interests. The father seeks an order for sole parental responsibility and the mother, who essentially seeks in this regard the 2017 orders to be retained, it is more in favour of the joint parental responsibility. On any view of the matter, as the mother asserts, she and the father do not have a working relationship. That puts the matter rather lower than it really is. I will return to the attitude of the parents towards one another when I come to the section 60CC matters, but it is sufficient to say for these purposes that the father has an extremely accusatory attitude towards the mother, who in his materials accuses on a number of occasions of being an outrageous liar. The mother seems to loathe the father and has the greatest difficulty even on her own evidence in not disliking him even so long after separation.
These interpersonal difficulties have found there expression in both of the parents to an extent (but the mother more so) not properly involving the other in those areas of decision making that parenting responsibility is primarily directed to. Most particularly the question of health.
It is sufficient to say that where cooperation has been so enormously lacking, the Court can have no confidence that an order for joint parental responsibility will do anything other than give rise to further argument and discord, which is pre-eminently not in the children’s best interests. They are all too aware of such discord already. In the particular circumstances of this case it is absolutely apparent that the parent who has the primary care of the children should have sole parental responsibility with appropriate provisions to acquire proper notification and involvement of the other parent.
SPENDING TIME AND COMMUNICATING – THE PRIMARY CONSIDERATIONS
Everyone agrees that it is in the best interests of these two children to have a meaningful relationship with each of their parents. There is no meaningful assertion that there is any need to protect the children from physical violence. Where the battlelines are more drawn is whether there is a need to protect the children from psychological harm by being subjected to family violence within the extended meaning within section 4AB of the Family Law Act 1975 (“the Act”). While this is an important matter, and one to which greater emphasis needs to be given pursuant to section 60CC(2A), it is better addressed by the more refined criteria in section 60CC(3).
THE ADDITIONAL CONSIDERATIONS – 60CC(3)(a)
The children have expressed views to Ms C. They clearly love their father dearly and have been distressed both by their mother’s refusal to allow time on occasions and by their mother’s view of the father. I also note with concern X’s disclosures about the way he feels his mother treats him, although I accept that the stress and strain of the interview process and the general pressures surrounding it may well have caused an unusually acute outburst on X’s part.
Section 60CC(3)(b)
The children obviously love both their parents. Whatever reservations Ms C recorded about the children’s interaction with their mother need to be seen in the light of the fact that they have lived with her as their primary carer all their lives. I have no doubt that they love their mother very dearly. Equally, it is clear that they love their father and have been distressed about their time with him being limited by their mother.
The children have not, it should be noted, expressed any definite views about which parent they would wish to live with and I note that Ms C would not have asked them in any event. The highest this rises is Y saying she would not altogether mind living with her father. However, it needs to be noted that that was a volunteered observation and not one sought out by Ms C. The children have, it would seem, good relations with both the extended paternal and maternal family. The nature of the mother’s relationship with her family is a matter to which I shall return.
Section 60CC(3)(c)
Both parents have, it seems to me, taken, so far as they were able, opportunities to participate in making decisions about making long term issues in relation to the children and spend time and communicate with them. What is noteworthy is that the mother appears to have restricted the father’s capacity to interrelate to treating professionals. It also appears that the mother’s engagement with ancillary support such as K Psychology remains unclear. The mother’s explanation for the father’s exclusion is that they do not have a good working relationship. As earlier indicated, that is unquestionably the case but it reflects, at least it reflects in part, the mother’s avoidance of the father in every way that she can and the father’s somewhat assertive approach to interaction with her.
Section 60CC(3)(ca)
The mother has always looked after these children and has provided for their maintenance. I presume that the father has done so when the children are in her care, but it appears that the father does not receive and I would infer has very rarely, if ever, received any child support. Given the father is on a disability pension, however, that is perhaps wholly unsurprising.
Section 60CC(3)(d)
In the context of this case this is a very important subsection. There can be no possible doubt that a change of primary residence would have a significant and major effect upon the children. Indeed, this is implicit in the form of orders that the father himself seeks in which there is built in assistance from third parties to enable the children to cope with the change. If the change is effected, I accept that the father will apply himself more diligently to his responsibilities than he has been able to because of his more restricted time until now.
These children do not seem to me on the materials as they stand to have been properly treated, most particularly for X’s ADHD and other difficulties. It will be incumbent upon the father to make the appropriate appointments with the appropriate treating professionals to enable this to occur. One aspect of his evidence that was given with conviction and which I accept is that with the children in his full time care it will be easier for him to make such appointments and I accept he will do so. The somewhat haphazard and uncertain approach to treatment that the mother appears to have adopted would be replaced by a better one.
The father says that he wishes to foment a relationship with the mother in contradiction to her approach to him. I approach that assertion with some caution because the father’s own materials, as I say, are bleakly accusatory of the mother on many occasions. Nonetheless, the assessment made by Ms C following relatively extensive interviews lasting some hours (bearing in mind that she is a highly qualified specialist and such time would be of great use to her) is not one I can ignore. The fact is that if the children live with the father, he is more likely to promote and sustain a good relationship with the mother than would be the case the other way around.

Indeed, the evidence of Ms C is that a failure to change residence leaves the children at the risk of significant harm. She described this in respect of X as a danger. The children are conflicted because of the mother’s view about the father of which they are well aware, and the difficulty that this creates for them, given their own experience of him. This is of the greatest significance.
Nonetheless, it should not be for one moment overlooked that any such change would present great difficulties for the children and would, of course, represent a shattering outcome from the point of view of the mother, who became, it should be noted, understandably labile towards the end of her submissions when she was traversing this issue. The emotions this would engender in the mother would, if not carefully controlled by her, expose the children to distress. This possibility cannot be wholly excluded. The one thing that one can say, of course, is that if the children live the father, they are more likely to spend more time both with the extended paternal and maternal families.
Section 60CC(3)(e)
Although the parents live quite some distance apart and both are impecunious, no one has suggested that whichever outcome is achieved issued of practicality and/or expense are likely to make a lot of difference. I note that the father is seeking to move closer to the children’s school and that the commute involved of some half hour is not, while not wholly desirable, grossly unreasonable or excessive.
Section 60CC(3)(f)
This is also an important subsection. Both of the parents have the capacity to provide for the physical needs of the children. While the mother’s care of X seems strange in relation to the provision of underwear, the fact is that the children have lived all their lives with her without any major difficulties and I note and accept that, for example, there has never been any departmental involvement. Both parents have their deficiencies in respect of the children’s emotional needs. I am not quite as convinced as Ms C that the father will be able to provide for X’s intellectual needs given his shilly-shallying as to the effects of his ODHD and his general underplaying of both children’s difficulties with asthma. Nonetheless, the children have been in a nine/five regime for most of the time since 2017 without coming to any difficulty with him. Where the mother is more deficient, however, is in her capacity to provide for the children’s needs in respect to their relationship with their father. Her significant opposition to this and its effects upon the children have already been commented upon and need not be repeated, but they remain very important.
Section 60CC(3)(g)
The eldest child, X, has significant difficulties. He functions at a very low intellectual level. He has ODHD and, it would appear, although this achieved little emphasis, possibly ODD as well, together with what sound like fine motor skill deficits and reading difficulties. It would appear, from what he had to say to Ms C, that his mother may not always respond to this entirely appropriately. Y, by all accounts, is a bright cheerful normal girl developing fully in accordance with what one would reasonably expect.
The father struck me as being somewhat querulous at times, a matter I have not previously commented on, but he remains, as I have no doubt, passionately committed to his children’s wellbeing. He lives in conjunction with his family on a large 15-acre property. His present accommodation is suboptimal. The notion that these two children can continue to share a sleeping space as they approach adolescence is not one that can be sustained over time, but I note equally that he is genuinely committed to obtaining better accommodation as soon as practicable, and I accept he is actively seeking to do so.
The father has the benefit of, as earlier indicated, good relationships both with his own and with the mother’s family. The mother’s personality and lifestyle is, as I have already said, slightly strange. She is, it appears, totally sundered from all her immediate family. There is no question of attributing blame for this state of affairs. It may well be, as the mother says, that some people simply do not get along. It has to be noted, however, that such complete estrangement from the entirety of your own family is somewhat unusual, and in my view, is illustrative of what I sensed as a kind of emotional disconnection, if I may so describe it, on the mother’s part more generally that was evident in the way she formulated her questions and in her submissions and, indeed, in her evidence more generally.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
Both of these parents love their children and wish to do the best for them as parents, as they see it. As already indicated, both have certain limitations or deficiencies, but nothing in this judgment should suggest that they are anything other than loving parents.
Section 60CC(3)(j)
Although there is some suggestion of family violence in a historical sense, there is certainly nothing said to be presently of any moment.
Section 60CC(3)(k)
This is not relevant.
Section 60CC(3)(l)
It is undoubtedly appropriate to make final orders. All parties seek that this be done, and it is quite plain that the sooner the stresses of litigation are brought to an end, the better, not only for the parents but for the children. This will reduce the strain on the parents and, more particularly, any associated strain that devolves to the children as a result.
Section 60CC(3)(m)
There are no other relevant matters.
CONCLUSION
This case is terribly sad. The children have lived all their lives with their mother, who loves them devotedly. She is, however, either in denial or possibly even not fully aware of the extent of her emotions about the father and, more particularly and critically, the effect that these have upon the children. As I find, it is not too much to say that the mother loathes the father. She was unable to answer questions as to what value she ascribed to the children’s relationship with him. She was avoidant to a number of other similar questions designed to elicit any kind of positive in the father that she was able to perceive. She plainly perceives very little, if any.
I think I am correct to say that the highest she went was to suggest that he might fulfil a father’s role. For all his limitations, and most particularly his concerning lack of insight as the extent of X’s difficulties, he is a loving father who wants the best for his children. In the end, the critical consideration in this case is that identified by Ms C. The children are being placed at serious risk because of the conflict between their correct appreciation of the mother’s view about the father and their own completely contrary and lived experiences of him and their love for him as a result.
Whatever reservations one might have about some of the emphasis in Ms C’s report (I formed the view that she considered the mother, from a relatively early point in the interview, in a somewhat negative light), there is no escaping this conclusive aspect of her report, which is, of course, not the only criterion. It is only one, and I have had full regard to all the other relevant matters. In the end, however, it all boils down to this. The benefits of what will undoubtedly be a difficult change very clearly outweigh the disadvantages.
A change of residence is clearly in the children’s best interests. They are at risk, possibly even in danger, if it is not effected. Notwithstanding the difficulties of adjustment for all concerned, it is plain that the recommendations of Ms C are those that are in the children’s best interests. The orders sought by the father and independent children’s lawyer will be made.

I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.
Associate:
Dated: 13 August 2021

[2021] FCCA 1776

13 August 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

File number(s):	DGC 1585 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	13 August 2021
Catchwords:	FAMILY LAW – Parenting dispute about children aged 10 and 11 who have lived all their lives in primary care of mother – mother having extremely unfavourable opinion of the father – children being well aware of mother’s opinion which is contrary to their lived experience of the father, whom they love – children conflicted as a result – family report assessing children at risk if remaining in mother’s primary care and recommending change of primary residence – orders made as recommended in family report.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Goode v Goode [2006] FamCA 1346
Number of paragraphs:	186
Date of last submission/s:	18 June 2021
Date of hearing:	17 and 18 June 2021
Place:	Dandenong
Solicitors for the Applicant:	Springvale Monash Legal Services
Counsel for the Applicant:	Mr McLeod
The Respondent:	In person
Solicitor for the Independent Children’s Lawyer:	Robert Halliday & Associates
Counsel for the Independent Children’s Lawyer:	Mr Brewer

DGC 1585 of 2020
BETWEEN:	MR CHAUCER Applicant
AND:	MS CHAUCER Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	13 AUGUST 2021