Lorreck and Watts

FAMILY COURT OF AUSTRALIA

LORRECK & WATTS

[2018] FamCA 850

FAMILY LAW – CHILDREN – Interim Parenting – Remitted from Appeals Division – Where the children should live – Where the parties live in different states – Where the children have very strongly stated views – Whether those views should be given weight – Where the relationship between one parent and the children has broken down.

Goode & Goode (2006) FLC 93-286

Family Law Act 1975 (Cth)

APPLICANT:

Ms Lorreck

RESPONDENT:

Mr Watts

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid ACT

FILE NUMBER:

CAC

2009

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

6 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Hassall

SOLICITOR FOR THE RESPONDENT:

Joseph Tallarita

ADVOCATE FOR THE INDEPENDENT CHILDREN'S LAWYER

Ms McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Legal Aid ACT

Orders

The final hearing of the parenting matters in this suit is expedited.
The matter is listed for 5 days commencing 25 March 2019.
ORDERS MADE PENDING FURTHER ORDER
All parenting orders having force or effect as at the date of these orders are suspended pending further order.
The father (Mr Watts) is to have sole parental responsibility for the children X born … 2002 and Y born … 2007 (hereafter called “the children”).
Before concluding any change in the long term arrangements for the care of the children, the father is to send an email to the mother (Ms Lorreck) setting out the proposed change and inviting her views in relation to same. Should the mother seek to express a view on the topic she is to respond within three days of receipt of the email. The father is to take the response of the mother into account when making his decision on the topic.
(a) The children live with the father.
(b)The children spend time with the mother during the Australian Capital Territory (ACT) school holidays as follows:
(i)For the first half of the 2018/19 summer holiday period, commencing on the first full day of that holiday period and ending on the 21^st day of that school holiday period.
(c)The children spend time with the mother during school terms:
(i)Up to seven consecutive days each month in Canberra provided that the mother:
(A)Gives the father 14 days written notice of her intention to spend such time;
(B)Causes the children to attend the usual school and extra-curricular activities during such time.
(d)The father and the mother may communicate with the children when they are not in that parents care each Sunday, Tuesday and Thursday between 7:00 p.m. and 7:30 p.m. with the other parent to facilitate that time, including by the provision of audio visual facilities to enable that to take place during those periods, and shall otherwise encourage the children to spend that time talking with the other parent.
(e)When the children are spending time talking with the other parent in accordance with these orders, the parent with whom they are living is to provide the children with privacy to engage in a conversation with the other parent by not being physically present during that conversation and by taking all reasonable steps to ensure that other persons are not present during the communication with the other parent.
(f) For the purposes of the school holiday time:
(i)The father will book and pay for the return airfare with Qantas for children to travel from Canberra to B Town and from B Town to Canberra for the 2018/19 summer holidays.
(g)The father is required to ensure that the mother is provided with the following information, and to make arrangements for her to be provided with information regarding the welfare of the children as follows:
(i)In the event that either the children require medical treatment, the father is to advise the mother by email, at an address nominated by her for that purpose, as soon as is practicable of the nature of and requirement for medical treatment;
(ii)When advising the mother as to medical treatment in relation to the above order, the father is to advise the mother of the name of the practice and the name of the doctor and provide the mother with contact details for the doctor such that she is able to speak with him or her about the treatment;
(iii)On either child receiving medical treatment or consulting with a medical practitioner the father is to immediately authorise and continue to authorise that medical practitioner to speak with the mother in respect of the treatment of the child and is to provide that medical professional with a copy of these orders;
(iv)On enrolment of the children into a school the father is to immediately notify the mother of the details of the school including contact details and is to provide an authorisation to the school permitting the school to discuss matters concerning X and Y with the mother and is to provide that school with a copy of these orders.
(v)The father is to authorise the school to provide to the mother all school reports and notices regarding the children.
(h)The mother may contact the children at such other times as may be reasonable.
The court recommends that each of the parties respects the wishes of X (now 16) in relation to the time he states he wishes to live with or spend time with each of them.
The father is to encourage X to spend time with the mother as these orders provide.
The court recommends that the mother refrain from contacting the children by telephone or other electronic means outside of the times provided for in order 6(d).
The father is to facilitate the children being able to telephone the mother at any time they may request.
The Independent Children's Lawyer is to meet with the children and explain the orders to them. The Independent Children's Lawyer is to give such explanation for the reasons published by the court for these orders as the Independent Children's Lawyer considers the children should be informed of.
Neither party is to physically chastise the children or raise their voices in a reprimanding conversation with the boys.
The court recommends that the mother engage in individual therapy to assist her in repairing her relationship with the boys.
The father is permitted to remove the children X (a male) born … 2002 and Y (a male) born … 2007, from the Commonwealth of Australia between 8 October 2018 and 15 November 2018 inclusive for the purpose of engaging in holiday travel.
No later than seven (7) days before the departure of the children on the holiday trip permitted by order (14) hereof, the father is to provide to the mother, by email, a copy of the children’s itinerary for the trip where that itinerary shows the location the children will be staying on each night of the trip.
Order (6) (c) is suspended during the time set out in Order (14) hereof.
Order (6) (d) is suspended during the time set out in Order (14) hereof and the children are to speak with their Mother each Sunday, Tuesday and Thursday at a reasonable time noting the time difference between Europe and Australia. The Father is to facilitate such communication.
The court recommends the mother seek and obtain confidential counselling to assist her with strategies to improve her relationship with the children.
The Independent Children's Lawyer is to speak to the children about them engaging in confidential therapy to assist them with developing strategies to cope with the parental conflict and the circumstance in which they have to negotiate the process of being able to have a relationship with each of their parents.
Should the boys agree to participate in any such therapy the Independent Children's Lawyer is to recommend the name of a therapist to the father and the father is to make arrangement to engage the services of the therapist for the children. Neither parent is to contact the therapist, without the leave of the court, with the exception that the father is permitted to contact the therapist solely for the purpose of engaging the services and meeting any contractual obligations.
The Independent Children's Lawyer is to provide copies of the January 2018 and 31 May 2018 Family Reports to the therapist.
Neither party is to issue any subpoena to the therapist for the production of records without the leave of the court.
The parties are to note that should the children agree to engage with the therapist as provided for herein then the court intends that therapy to be confidential and that unless there is some extraordinary and compelling reason for the court to know about some aspect of the therapeutic work, and leave of the court has been first obtained, no evidence is to be sought from the therapist or provided to the court.

Directions for Trial

On or before the 1 February 2019 each party and the Independent Children's Lawyer is to file and serve an affidavit in chief by each witness to be relied upon. In the affidavit of each parent they are to address the following topic. Each topic is to appear in the affidavit as a heading and the facts relevant to that topic are to be recited thereunder.
a.What are your proposal with regard to:
i.Housing:
·where will the children live with you?
·who else will reside in the accommodation with you and the children?
·who else do you anticipate might also spend overnight time in the accommodation with you and the children as a visitor?
·What facilities will be provided in the house for the children? (e.g. will the children share a bedroom with any other person? What play equipment will they have? Are there any pets in the accommodation? What educational facilities will be available at the accommodation? What communication facilities will be available at the accommodation for the children to use to communicate with the other parent? Etc.;)
ii.Schooling:
·which school do you propose the children will attend?
·where is the school located?
·how will the children travel to and from the school?
·What role do you propose the other parent will have in the children’s schooling;
iii.Supervision of the children:
·   who will care for the children if you are unavailable at a time when the court orders provide for the children to be in your care?
·   Are you proposing the children will attend any before or after school care facility? If so give details.
·   If you are proposing any of the children’s time with a parent or other person should be supervised who do you propose will be the supervisor?
·   What is the cost of the supervision and who will pay for it?
iv.Health:
·which GP or medical facility do you propose the children will attend should they require non urgent medical treatment?
·does either child have any particular illnesses or conditions which require frequent medical supervision? If so, set out details of the condition and any medications prescribed to treat the condition.
·Is there any medication which needs to be administered to any of the children at a time when you propose the children will be in the care of the other parent? If so provide detail.
·Is there any ongoing medical treatment or therapy which the children will be required to attend upon whilst they are in the care of the other parent? If so provide details.
v.Extra-curricular activities:
·   What extra-curricular activities do you propose the children will participate in?
·   Do you propose the children participate in those activities or training for those activities whilst in the care of the other parent?
·   What is the cost of each extra-curricular activity you propose for the children?
·   Who do you propose will pay the costs of any extra-curricular activity you have outlined?
·    How do you propose the children will be transported to and from each activity?
·   What role do you propose the other parent will have in each of the nominated extra-curricular activities.
vi.Overseas travel:
·Do you propose the children should be permitted to travel overseas with you?
·If overseas travel is proposed when do you propose such travel would take place (e.g. in school holidays only) and what destinations do you propose the travel should include?
·Do you propose the children should be permitted to travel over-seas with the other parent?
·If overseas travel is proposed for the children with the other parent, when do you propose such travel would take place (e.g. in school holidays only) and what destinations do you propose the travel should exclude?
·How do you propose the children’s necessary passports and visa requirements should be obtained?
·Who do you propose would meet the costs of obtaining same?
·Who will hold the passports between travel events?

b.Specify any concerns you have regarding the parenting ability of the other parent. In relation to each concern described, set out specific evidence, which illustrates how that concern arises.
c.Specify any concerns you have about the impact upon the children, yourself or any other significant person arising from the current parenting orders/arrangements.
d.Set out any other heading necessary to address a matter relevant to a finding necessary to be made under section 60CC(3).
e.Set out any other headings necessary to address issues of fact between the parents or other parties.

Neither party is to file any affidavit in response to an affidavit filed by the other without first obtaining leave from the trial judge.
At a time convenient to the Independent Children's Lawyer and the parties in about January or February 2019 the Independent Children's Lawyer is requested to convene a mediation to attempt a settlement of the parenting orders to govern the children's time with each parent over the next two years.
Each party has liberty to apply on short notice should that be necessary prior to the commencement of the hearing on 25 March 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 29 of 2009

Mr Watts

Applicant

And

Ms Lorreck

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

The application before the Court is one calling for an interim determination. The application was listed before the court following the Full Court upholding the mother’s appeal against the interim orders made by Justice Gill on 12 January 2018. In order to apply a fresh mind to the case I have not read either the judgment of Gill J published on 16 January 2018 or the judgment of the Full Court published on 9 August 2018. I have read the orders made in each judgment.
The applicant is the father, Mr Watts. He lives in Canberra. The respondent is the mother, Ms Lorreck. She lives in B Town, Queensland. The children are X born in 2002 and Y born in 2007 (“the boys”).
Prior to the orders of 12 January 2018 the boys had been living with the mother in B Town. They spent time with the father during school holidays. During the Christmas school holidays in December 2017/January 2018 the boys spent time with the father and did not return to the mother after that time.
The orders made on 12 January 2018 were interim orders which required the children to live with the father. Orders were made for the boys to spend time with the mother. Other provisions were made.
The father, who was self-represented at the hearing, sought to rely upon the following documents:
·Initiating Application filed by the father on 30 June 2016.
·Family Report dated 31 May 2018 (Marked as exhibit ICL2 in the hearing)
·Father’s Application in a Case filed 18 December 2017.
·Father’s affidavit filed 18 December 2017.
·Affidavit of father filed 8 January 2018 paragraphs 1, 19, 21 to 27.
·Affidavit of father filed 10 January 2018
·Affidavit of Father filed 3 April 2018 re European travel for children this year.
·A bundle of documents which included E School Award for X.
·Semester one school report for X.
·F School enrolment form 2019.
·Email from X to Independent Children's Lawyer and the parties.
·Email/voice recording of the mother to X 16 August 2016.
I permitted the father to rely upon all the above listed documents.
The mother provided a list of documents she sought to rely upon. Those documents are as follows:
·Minute of order sought by the mother (Marked as exhibit M5)
·Affidavit of the mother sworn 5 January 2017.
·Affidavit of the mother sworn 9 August 2018 paragraph 96 to 98.
·Text message exchange between the mother and Y of 31 August 2018.
·Family Report of Ms D dated 4 January 2018.
·Documents to be tendered as follows:
·Semester one report 2018 for Y.
·Semester two report for Y 2017 G School.
·Notes from B Town Family Medical Centre 2 February 2018 re Mother, X and Y.
·Mother’s consent to provide psychological services dated 22 August 2018.
The mother was permitted to rely upon those documents.
The Independent Children's Lawyer tendered a Minute of Order she was submitting should be made by the court. The document was marked as exhibit ICL3. The minute sought that the order of the Full Court of 9 August 2018 continue. It proposed the children be permitted to travel overseas with the father from 8 October 2018 to 15 November 2018. It proposed that the currently in force orders be suspended to permit the overseas travel. It proposed contact times for the children with the mother while they are overseas with the father.
As stated earlier the report of Family Consultant Ms H dated 31 May 2018 was marked as exhibit ICL2. That report contained towards the end of same the following:
208. On balance, weighing up the propositions it appears that, [Mr Watts] is best placed to meet [X] and [Y’s] psychological, educational and physical needs, therefore it is recommended that they live with him and accordingly that he is granted sole parental responsibility.
As a consequence of the above recommendation the issue of sole parental responsibility was squarely before the court and I asked the parties to address that topic in their submissions.

The orders sought

The father sought the orders as follows. As the father drafted the orders he sought, I have set out only the orders which are significant:
1.The children, [X] and [Y] of their own wishes reside with the applicant father, [Mr Watts], their stepmother, [Ms Watts] and their siblings, [W] and [Z] at [J Street, Suburb K], ACT ...
2.The children can be enrolled in and attend a Canberra School during their residence in Canberra.
3.All previous orders pertaining to residence, paretnal (sic) responsibility, communications and domestic travel are deemed out of date and nor reflectant (sic) of the present situation and ages of the children.
4.All previous orders pertaining to residence, parental responsibility, communications and domestic travel are cancelled.
5.A consolidated set of orders covering residence, parental responsibility, communications and domestic travel is written and promulgated.
6.The respondent mother allow the children to remove their property in full or in part from the respondent mother’s residence in [B Town] if they chose (sic) to do so.
7.The applicant and respondent share parental responsibility.
8.The children, as they please, communicate freely with all relatives, including the respondent via their own communications devices.
9.[X] travels to [B Town] by his own decision during school holidays periods. The respondent is not to physically or mentally abuse [X] on any trips to [B Town].
10.[Y] travels to [B Town] during school holiday period. The respondent is not to physically or mentally abuse [Y] on any trips to [B Town].
11.The respondent is responsible for domestic air travel cost vi any airline service provider when children travel to [B Town].
12.If children seek not to travel to [B Town], the father is responsible for no more than two flights for [Ms Lorreck] to travel to Canberra via any service provider. [Ms Lorreck] is responsible for her own accommodation in Canberra.

The mother sought the court make an order which would see the children returned to her primary care and living with her in B Town, Queensland. The precise orders she sought are as follows:
1.All previous orders discharged.
2.Mother has sole parental responsibility.
3.[X] and [Y] live with the mother and to be returned to the mother forthwith.
4.[X] and [Y] spend time with the father during the school holidays as follows:
a.For half of the 2018/2019 Christmas school holidays, commencing on the first Monday half way through the holidays and ending on the day before the commencement of the first term in Queensland in 2019.
5.[X] and [Y] will spend time with the father during school terms:
a.Up to seven consecutive days each month in [B Town] provided that the father:
i.Gives the mother 14 days written notice of his intention to spend such time;
ii.Causes the children to attend the usual school and extra-curricular activities during such time.
6.As per paragraphs 6 to 10 of the order of Gill j made on 16 January 2018 save that:
a.References to “the father” are replaced with references to “the mother”, and vice versa;
b.Paragraphs 8(a), (c), and (d) are deleted;
c.References to “B Town” are replaced with references to “Canberra” and vice versa.

The Independent Children's Lawyer tendered a Minute of order which sought the following orders:
1.   That Order 4 of the Full court of the Family Court of Australia dated 9 august 2018 continue.
2.   That [X] and [Y] be permitted to travel overseas with their father from 8 October 2018 to 15 November inclusive.
3.   That Order 4 (c)(i)(A) and (B) is suspended during the time set out in Order 2.
4.   That Order 4(d) is suspended during the time set out in Order 2 and that [X] and [Y] will speak with their Mother each Sunday, Tuesday and Thursday at a reasonable time noting the time difference between Europe and Australia and that the Father will facilitate such communication.
5.   Any further Order that the court may require.
6.   Provision of itinerary. The father provide the mother with a copy of the children's’ itinerary for the overseas trip.

Submissions

The Independent Children's Lawyer’s Submissions

Having read the material relied upon by the parties and exhibit ICL2 (31 May 2018 report), I asked that the Independent Children's Lawyer address the following matters and then any other matter she wished to address.
·Should the children live with each parent (split residence)?
·Should the court make an order for sole parental responsibility in favour of the father if the children live with him pending further order?
·Should the court order the parents cause the children to have confidential therapy?
·Should the court order/recommend the mother engage in therapy for herself (not with the children)?
·If the children remain living with the father should the mother’s face to face time with the children be confined to the ACT?
·Should the court fix the times and days that the children have telephone/video communication with the mother if they remain in the care of the father?
I also asked the Independent Children's Lawyer to address other matters I sought submission upon including the weight to be given to the children's wishes. This is an important consideration in any case, however, in this case, given the view about X’s emotional maturity expressed by Ms D, the maker of the Family Report dated 4 January 2018, and the apparent different view formed by Ms H, the maker of the Family Report dated 31 May 2018, the court will need to address that matter. I note for the record I have not been asked to, nor have I, made an order about where a 16 year old child should live or spend time with a parent contrary to the expressed wishes of that child. In this case each of the parents is seeking the court make orders in one manner or another against the expressed wishes of X.
The submissions from the Independent Children's Lawyer were succinct, relevant and sensible. She submitted the best interests of the children required that pending further order they remain living with the father and attending the schools they commenced attending at the beginning of the year. She submitted against the children being separated. She said the evidence before the court must lead the court to conclude the children have a close relationship and would be stressed and disappointed to be separated. She emphasised her instruction from Y that he was strenuously opposed to separation from X.
In relation to the weight to be applied to the children's stated wishes and perceptions the Independent Children's Lawyer submitted significant weight should be given to their views. In relation to X she submitted that he is 16 years of age and he has matured extensively since January 2018. So much can be surmised from the difference between the opinions of the Family Consultant who have interviewed X, albeit nearly six months apart. She submitted the evidence establishes that X is doing well at his new school. He is happy. He is learning to drive. He has voiced a consistent wish to stay living in Canberra with his father. The Independent Children's Lawyer submitted real and substantial weight should be given to his wishes.
In relation to Y the Independent Children's Lawyer said he has expressed a consistent wish. He is 11 years of age. The Independent Children's Lawyer informed the court Y wants to stay in Canberra with his father. He has formed a relationship with his step-brother Z (5) and W, the 11 year old daughter of Ms Watts, the father’s partner. He reports he is happy and settled. The Independent Children's Lawyer submitted Y’s wishes should be given considerable weight.
In relation to the possibility of confidential therapy being provided for both boys the Independent Children's Lawyer submitted that the children would be reluctant to attend if they thought this was to be therapy for reinstating their relationship with the mother. She considered Y would participate if X agreed to.
Separation of the children so that Y lived with the mother and X lived with the father was submitted strongly against. Then Independent Children's Lawyer submitted such an event would be very detrimental to the wellbeing of each boy. (I note that the mother does not seek the children be separated.)
The subject of whether a sole parental responsibility order should be made as an interim measure was addressed by the Independent Children's Lawyer. She submitted that the relationship between the parents is very dysfunctional. There is very poor communication. An order for equal shared parental responsibility would be very difficult for these parents to manage practically for the benefit of the children. The Independent Children's Lawyer submitted that sole parental responsibility should repose in the father with a requirement for the father to invite the mother’s views on any major decision to be made in relation to the children and that the father be required to take any such view into account when deciding what arrangement/change to make.
The time the children should spend with the mother if they remain living with the father in Canberra was addressed by the Independent Children's Lawyer. She submitted that although the Family Reporter recommends that the children’s time with the mother be restricted to taking place in Canberra, such an outcome could mean the mother cannot financially enable that to occur with the frequency which would be required.
The Independent Children's Lawyer informed the court that there has been one occasion since the order made by Justice Gill on 16 January 2018 when the children were scheduled to fly to B Town to spend time with the mother on which X expressed an objection to boarding the aeroplane for that occasion. The Independent Children's Lawyer said she received a telephone call from X from the airport and she was able to persuade him to board the plane.
The Independent Children's Lawyer expressed a concern that if the children’s time with their mother only occurred in Canberra then it was probable the mother would not be able to fund travel and accommodation to a level which would enable her to spend some time during all the school holiday periods in the years with the boys.
The Independent Children's Lawyer informed the court that X has informed her he will not be going to B Town during school holiday periods “no matter what orders are made”.
The children did attend B Town during the April and the June/July school holidays.
The Independent Children's Lawyer submitted an order should be made in relation to telephone/video communication between the children and the mother. She said this has become a “very large bone of contention” for the boys and also the mother. The Independent Children's Lawyer said the mother claimed she could not communicate with the boys as their mobile phones (the way in which she communicates with them) are turned off when she rings. The current order permits contact by phone between the mother and the boys each Tuesday, Thursday, and Sunday at 7.30 p.m. The mother makes the call.
The Independent Children's Lawyer submitted the father should be required to ensure the boys are available to take those calls.
In relation to the minute of order tendered by the Independent Children's Lawyer and marked as ICL3, the Independent Children's Lawyer submitted it was important for the children to be able to enjoy the trip planned by the father. She said if the Court was to refuse to allow the children to have that trip they would probably blame their mother and that would deepen the rift which has emerged this year in that relationship.
The Independent Children's Lawyer pressed for the suspension of orders for the children to spend time with the mother during the time they were on the overseas trip. She pressed for the children to have phone contact with the mother during their overseas trip.
In relation to the time the children will miss for school the Independent Children's Lawyer submitted the lost time would be 4 weeks. She said X is in year 10. She said X ought not miss any school time during the next two years of his schooling and so this is the last opportunity for him to miss school time in order to participate in an educational event, namely a trip to European cities and countries. She recommended that the father contact each boy’s school to ascertain what work they could do whilst on the holiday and then ensure that work is completed. (I note the father informed the court he was proposing to undertake that action.)
The Independent Children's Lawyer submitted that the disadvantage which could accrue to the boys by having the trip cancelled was greater than missing four weeks of schooling.

The Father’s Submissions

The father supported the submissions of the Independent Children's Lawyer.
The father informed the Court he had already written to each boy’s school authorities seeking permission to take them out of school for the stated period of the trip and asking what work he should have them undertake.
The father asked the Court not to consider having the children live in different residences (splitting).
The father supported an order for sole parental responsibility being made in his favour and agreed to consult with the mother to take into account her views on any particular decision to be made.
The father said he was not opposed to the current arrangement where she called the boys on their individual mobile phones when she liked.

The Mother’s Submissions

The mother addressed the proposal of the Family Reporter Ms H where she suggested the mother’s time with the children should be spent in Canberra. She said that this year the mother has exercised time with the boys during both the April school holidays and the mid-year school holidays. She submitted why change this when it has been occurring?
The mother submitted as a primary position that the children should immediately be returned to her care in B Town where they can return to the schools they attended in 2017.
The mother conceded the relationship between the boys and their father is strong. She submitted it would continue to be strong if the children lived with her.
The mother conceded the relationship between the boys and herself was strained when they were living with her in B Town. She submitted, however, that the relationship has deteriorated since the children have been living with the father in Canberra.
The mother drew the Court’s attention to the exchange of text messages between the mother and Y this year. In that text exchange Y called the mother a “pedophile” (sic), clearly not knowing what the term meant. There is no allegation that the mother has sexually abused or inappropriately interacted with the children in any sexual manner. The boys have accused the mother of verbal abuse, physical abuse, and shouting at them.
The mother submitted the Court should give little weight to the wishes of the boys because they were taken to the meeting with the Family Consultant by the father. The mother disputes that the children genuinely wish to live with the father. The mother submitted the long term relationship of the boys with the mother will only progress positively if they live in B Town with the mother. She referred to paragraph 52 of Ms H’s report where she told the Family Reporter about the warmth between she and the boys when they attended the movies in B Town in the autumn school holiday period. The mother also referred the court to paragraph 173 of the January Family Report where it was opined by the Family Report that the father could provide for the physical and educational needs of the children, however, it was arguable he had undermined the children's relationship with the mother.
In the mother’s submission she pointed out that X was now reporting a dislike for his school in B Town (see report of Ms H), yet that was not a complaint he had in January this year as can be seen in the January 2018 Family Report.
In relation to the overseas holiday for the boys with their father the mother said that holiday was booked and paid for by the father in December 2017. She said she does not have the same financial capacity as the father to provide the children with those type of holidays. She submitted the action of the father booking the holiday in December 2017 could be an act of undermining her relationship with the boys. She said she would not consent to the trip because the boys would be missing school.
The mother said she would not support any separation of the children.
In relation to the children's school achievements, she said the report from Y’s current school shows a lesser outcome for him than the last report from his B Town school.
In the final submission made by the mother, the Court was told the mother accepts she has had a difficult relationship with the boys, however, she did arrange in February this year for the boys to undergo the preparation of a “mental health plan”. She has also given consent, this year, for Y to see the school counsellor at his current school.
The mother was given an opportunity to speak directly to me after her counsel had concluded his submissions on habitual residence behalf. She told the Court she regarded herself as having a good relationship with the boys prior to 12 January 2018. At times things were strained, she said, that circumstance escalated after X was provided with a mobile phone. That occurred in 2016.
The mother referred the court to annexure “M” to her affidavit. She submitted the children would be happy to return to B Town and live with her. She said they would be properly and adequately parented by her.
The mother raised her concern that the children were becoming addicted to playing on-line games on their mobile phones. She said they were addicted “like heroin addicts”. She does not have wifi so when with her they cannot play those games whilst at home.
The mother informed the Court she would be at a financial disadvantage if she had to exercise her time with the boys in Canberra. She submitted the father was not facilitating or fostering a meaningful relationship for the boys with her. She said that situation is becoming worse in recent times.
Although the mother sought an order for sole parental responsibility and further, in the face of a submission by the Independent Children's Lawyer that an order for sole parental responsibility should be made in favour of the father, no submission at all was made by the mother in relation to the subject. Clearly the proposal was on the table for consideration by the court and clearly the mother had an opportunity to address that subject.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
Neither party nor the Independent Children's Lawyer provided a case outline document to assist the court. The background facts are found in application documents, the affidavit evidence and the Family Reports. I set out below sufficient of the background facts to comprehend the circumstances in which the current application arises for determination.
The parents’ relationship commenced in about 1992. There were married in 1994 and finally separated in November 2009. A divorce was pronounced on 12 May 2011.
There were two children of the relationship namely X born in 2002 and Y born in 2007.
Parenting orders were made in about May 2011 and again in the Federal Magistrates Court, Canberra on 2 September 2011. The original orders saw the parties sharing care for the children in the Canberra area. The later order granted the mother the right to remove the children from Canberra to B Town. That order was appealed and the appeal by the father was unsuccessful. In September 2012 the mother made her move to B Town.
The father commenced proceedings in the Federal Circuit Court in Canberra on 30 June 2016. In that application he sought as a final order a change of residence for the children so that they would live with him in Canberra.
On 30 November 2017 the children travelled to Canberra to spend holiday time with their father. The father’s case is that on 12 December 2017 both children informed him they did not wish to return to B Town to live with their mother. The father set out the list of complaints each raised with him about the mother’s parenting.
On 18 December 2017 the father filed an Application in a Case which sought an urgent order changing the residence order pending further order of the court.
The application of the father’s was heard by Gill J on 12 January 2018 and by his order dated 16 January 2018 the prior parenting orders were discharged and the father was granted sole parental responsibility for the children who were to live with him and spend time with the mother as provided for in the order.
The mother successfully appealed that order, and on 9 August 2018 the Full Court made orders allowing the appeal and set aside orders 2 to 12 of 16 January 2018. The Full Court then made orders pending further order which saw the children live with the father and spend time with the mother. The father’s application in a case was remitted for a hearing before a judge other than Gill J.
The affidavit evidence relied upon by each of the parties joins issue in relation to a number of relevant and significant facts. The father relies primarily on matters reported to him by the boys in the nature of a complaint about aspects of the mother’s parenting of them in B Town.
The mother has made some appropriate and significant concessions in the submissions made on her behalf.
The most recent objective evidence which the Court can look to assist in the determination of this matter is found in the Family Report dated 31 May 2018. I propose to look to that document to assist me in this determination. There are some exhibits and other documents, which I will identify in these reasons, which also assist.

In the determination of an interim dispute in a parenting matter, the court must look to the evidence which is reliable and the evidence which suggests any harm which might befall a child in any proposed arrangement, in determining what orders can be made which will be in the best interests of the child pending the court being able to conduct a full hearing. In this case that hearing has been set down for five days to commence on 25 March 2019.
To the extent that there may be a difference of opinion expressed by the two different Family Consultants who have prepared a Family Report in this matter for the court (January 2018 and 31 May 2018) the court cannot, in the confine of this hearing, determine if either has failed to exercise a proper professional approach to the preparation of the report to appropriately ground and support the opinions contained therein.
The Independent Children's Lawyer submitted that X has, in her observation, matured considerably during this year. That information is helpful and may explain some of the differences of opinion contained in the two reports.
In submission, only a very small part of the two reports was referred to. I propose to rely upon the most recent reports to the extent that I have ascribed significant weight to the observations and opinions specifically referred to inn these reasons.

Each party’s submissions

The Independent Children's Lawyer was the first party to address the court. I asked the Independent Children's Lawyer to address the following matters in particular and then anything further she might wish to address.

List of Topics to be addressed in submission:

·Should the children be separated so that they each live with a different parent (Split the children)
·In the event the boys remain living with the father in the interim pending a final hearing, should there be an order for sole parental responsibility to the father or should the court make an order for equal shared parental responsibility?
·Should the court make an order requiring the parties to arrange for the children to have confidential therapy?
·Should there be provision for the mother to undertake personal confidential therapy?
·What time should the mother spend with the children if they remain living in Canberra?
·Should there be fixed times for telephone contact between the children and each parent?

Each party’s evidence

The father’s evidence

The father’s affidavit was drawn by him. In large parts it consists of submission. Where recent event fact is set out it is recited in the form of conclusion. Some of his affidavit is capable of being received into evidence as fact. The most helpful portion is that which sets out his observations of the children.
The father described the yelling he heard from the mother via the phone call made by the mother to the father’s phone and then when she spoke to the children on those calls which occurred in November 2017.
The father said he had purchased mobile phones for the children which they leave in Canberra after their visit citing a threat from the mother to confiscate the phones. Notwithstanding that position it seems X has had access to a mobile phone in Queensland.
The father annexed to his affidavit of 18 December copies of earlier reports prepared for the court. These reports are, so far as I am concerned, relevant at this time, to the extent they have been referred to by the Family Consultant Ms H. That is to demonstrate consistency of the children's stated wishes and perceptions.
In the affidavit of 8 January 2018 (paragraphs 1, 19, 21 to 27) there is reference to a problem experienced by X seeking part time employment in Canberra. This evidence is largely set out as commentary and will no doubt be the topic of cross-examination of the mother at a final hearing should that be necessary.
The father tendered documents which were marked as exhibit “F2”. The documents consisted of copies of pleading emails X has written to the Independent Children's Lawyer this year. It also includes X’s report from his new school. The report is evidencing a good start for X at his new school. He has received an award. The exhibit also annexes a copy of X’s school report from his prior school.

The Mother’s evidence

The mother relied on her affidavit sworn 5 January 2017. Although the affidavit shows a filing stamp date 5 January 2017 and that it was sworn on 5 January 2017, the annexures state the affidavit was sworn on 5 January 2018. The content of the affidavit make clear it was signed in January 2018 not 2017.
The affidavit appears to have been drawn by the mother herself with no solicitors name referred to on the document.
The mother set out that she moved from the ACT to B Town with the children on 28 September 2012.
The mother set out where she had lived and detail of incidents of conflict between the father and her parents and between herself and the father. The mother set out the activities she engages in with the children. These are described in a manner which suggests the children very much enjoyed living with her.
The mother set out details of the children’s school progress and general involvement in the community in the area in which she lives.
In relation to the children's stated wish to live in Canberra, the mother said the children have never told her they wish to live in Canberra “while living with me in B Town”. She cited a conversation with Y in June 2016 where he requested that she not send him to Canberra after a conversation with the father where he had been told, apparently, the name of the school the father proposed for him in Canberra. I note the father had filed an initiating application in June 2016. The content of the mother’s affidavit about the conversations and happenings between the children and herself at that time suggest that X was wanting to live in Canberra.
The mother reported that prior to the boys going to Canberra to spend time with the father on 30 November 2017 X had been “continually locking himself in his room.” The mother said there was other concerning behaviour to her including whispering in his brother’s ear while she was driving them to school. She said “[X] continued lying to me about not having his iPhone7.”
Under the heading “Recent Events” the mother set out some evidence. She set out evidence of X taking charge of packing Y’s bag on the evening before flying to Canberra. She said X was acting in a peculiar manner and locked himself in his room. The mother was concerned about the items X was taking with him for the trip and the fact she said he was lying to her about what he was taking. The mother discovered what X and Y had taken with them and wrote an email to the father on 2 December 2017. In the email the mother accused the father of having prescribed what the children were to take from her house. In the email the mother accused the father of telling the children they will be living in Canberra.
The mother denied she had raised her voice to X in a phone conversation of 2 December 2017. She said she was asking why X had taken so many items from the house.
The mother reports that on 30 November 2017, the day the boys arrived in Canberra she received a phone call from them in which Y said he wanted to live in Canberra and X was rude to her. Some weeks after that the mother again spoke to X where he was rude to her and accused her of being rude to him.
The mother said the father left the boys unattended as he went to work. The mother contacted the Independent Children's Lawyer and complained about that and the father’s failure to attend to Y’s podiatry problem.
ON 18 December 2017 the mother spoke to X who said some very hurtful things to her. The mother said that she had limited phone time with the children since they had been in Canberra. She said X was restricting her ability to talk to Y.
The mother annexed a copy of an email she received which suggested it was from X. She did not believe it was written by X. The email is dated Christmas Day 2017 at 10:29 am. It seems to be in response to an email the mother sent to the father on 24 December 2017 threatening contravention proceedings if the children were not returned to her by 26 December 2017. It also seems to be in response to a telephone conversation of 24 December 2017 between the mother and the children.
The email from X he says he is very upset about the mother’s threat made 24 December that the boys will never see their father again if they do not return to her. He told his mother “it is us who want to stay”. He said she should not blame the father for that situation. The email is very accusing of the mother and the things it is alleged she said to them about the father and the threats she has made to the boys. He tells his mother he is happy in Canberra. He has a part time job. He does not like living in B Town.
The mother annexed to her affidavit a document which purports to be an exchange of text messages between X and a friend of his called Hailey. In that exchange which was clearly between two friends, X expresses his anguish about the manner in which he and Y have been treated by the mother.
In paragraph 70 the mother explains her role in relation to the part time employment X had found in Canberra. She contacted the employer on 29 December 2017. She provided the employer with a copy of the court orders. The assistant manager asked the mother if he should terminate X’s employment. The mother wrote in her affidavit “I did not respond at that point”. The mother had sent an email to the employer. The mother had two conversations with the manager on 31 December 2017. She was asked if she was giving her consent to allow X to work in the store. She said she “outlined I had sole parental responsibility for X. The mother said “I had initially given my consent.”
The mother included in her affidavit the body of an email she received from X on 31 December 2017. It is a scathing letter of condemnation of his mother from a boy who appears to be distraught at the circumstance he found himself in and wanting it to stop. The text of the email is as follows:
“…
To …, me, family
You are not my mother, do not contact me, do not contact my dad, do not contact my work. I am still very sad that you would interfere in my life like this, why do you feel the need to destroy everything I do, you have done terrible things to me and [Y] you have hit me, swear (sic) at me all the time, you have left scratch marks all over me and bites on me. I am now getting away from this violent life that you put me in and I want no more of it ever again. I don’t want you in Canberra, I don’t want you to contact me or my work. You are not my mother.
X
On 1 January 2018 the mother wrote an email to the employer of X withdrawing her consent to X being permitted to work there.
The mother said that thereafter she received a distressing phone call from X who informed her he was never returning to B Town.
The mother was made aware that X’s job was terminated “due to not having appropriate legal parental consent.”
In a telephone conversation with Y he blamed her for “stopping [X] from working”. The mother told Y that was not true. (Given the facts which were recited by the mother about the circumstance that X ceased to have his part time job, it is difficult to see how the mother court has asserted that.) The mother set out that her conversations with Y became strained and Y appeared not to want to talk to her.
The mother read paragraphs 96 to 98 of the affidavit she had sworn on 9 August 2016. This consists of the mother denying she has treated either child in an abusive manner which apparently had been alleged in a “Child Concern Report” made at a time before 1 July 2015. She also alleged violence by the Father to her on an occasion prior to the separation. She said that had occurred in November 2007.

Other documents relied upon by the mother

The mother relied upon a report of Ms D dated 4 January 2018. This was the Family Report which was available to Gill J when he heard the father’s application in a case in January 2018. That report has now been overtaken by the recent report of Ms H of 31 May 2018. I do not suggest that the report of Ms D should be disregarded. I would imagine it will play an important role on the final hearing. I have had regard to the report and I have noted places where the conclusions/opinions of the author have differed to those of Ms H. I consider that the boys’ circumstances have changed significantly since the time of the interviews for the earlier report and I propose to rely primarily on the most up to date material.
The mother relied upon the Semester I report for Y for this year and the report from his former school for his last term there. The mother in submission sought to draw a conclusion that he was not progressing as well in his new school. I have read those two reports. I conclude that there is nothing adverse to conclude about Y’s performance at his new school.
The mother also tendered notes from B Town medical centre dated 2 February 2018. In have read those notes. They disclose the situation the mother had on 2 February 2018. At that time the boys were with her but were to return to Canberra after her time. The mother describes behaviour in the boys which readily fit the description of “uncontrollable”. It does demonstrate, however, that the mother sought the assistance of a psychologist for the family at that time.
The mother tendered a form of consent given by her to provide psychological service dated 22 August 2018. I have read that document. It is attached to an email the mother wrote to the Independent Children's Lawyer. She was responding to a document which X allegedly wrote accusing the mother of screaming at him in a phone call for 30 minutes. The mother denied that. She described the disrespectful manner in which the boys addressed her and was amazed to see X describing his school in B Town as “terrible”. She attributed to the father direct manipulation of the boys while they are in her care.

The Issues

The competing proposals for the care of the children can clearly be seen in the orders each parent seeks.
The issues are directly connected to whether the children should be immediately returned to B Town to reside with the mother or stay in Canberra with the father at least until a final hearing can be conducted.
Aligned to that main issue is the nature of the relationship the children have with each parent. The mother reports behaviour by X which is rude and confronting to her. He has told her tom effectively “stay out of his life”. He has told her he does not regard her as his mother any more. This disrespectful behaviour is now being adopted by Y who is much younger and apparently more appreciating of the mother. The mother’s case appears to be that the children's reaction to her is motivated by the father undermining her role as their mother.
Although not specifically stated, the mother appears to be mounting a case that unless the children live with her she will lose her relationship with them for ever.
There is an issue about whether the boys are at risk of physical and psychological abuse at the hands of the mother whilst in her care.
There is a specific issue about whether the children should be permitted to travel with their father and the balance of the members of his extended family (now members of the children’s household in Canberra) for about four weeks of school time in October of this year.

Credit

It is not possible to form a concluded view in relation to any fact issues which the parties have canvassed in their evidence. In the absence of any particular evidence which I refer to hereafter I make no adverse finding of credibility against either parent.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975(Cth) (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
In considering the matters set out in s.60CC(2) the consideration in s.60CC(2)(b) is to be given greater weight than the consideration in sub-section (2)(a).
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
In relation to the process to be adopted by the court in considering interim parenting orders the Full Court has said in Goode & Goode (2006) FLC 93-286 the following:
How should interim proceedings be conducted?
[81] In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

Section 60CC Considerations

Primary considerations

In addressing the considerations set out in sub-section 60CC(2), I take into consideration the terms of sub-section 60CC(2A), which requires me to give greater weight to considerations set out in paragraph (2)(b).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
This case demonstrates how a relationship between children and a parent can break down. I assess on the evidence referred to in these reasons, that the relationship between X and his mother is now extremely poor and at the point of being irreparable unless she changes her position and acknowledges he has the right to make up his own mind on where he should live. In his discussion with the Family Consultant Ms H, he has set the basis upon which he is prepared to engage with his mother and that has squarely required all the action to come from her. The evidence of the mother and the position she has taken in opposing the children living with their father indicate she is not at this time willing to give up the fight with the father or try to take a different pathway to enable her to have a good parental relationship with her sons.
I am satisfied the children have a close, warm and trusting relationship with the father and are comfortable living in his new family environment. In that environment it appears they have been able to adapt to new schools and make new friends. The children report no negative aspect of their living arrangement in the father’s house.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this matter the children have raised serious allegations against the mother in the manner in which she has disciplined and controlled their activities. The children’s allegations, if true, would establish to my satisfaction a degree of physical and psychological abuse which well surpasses the reasonable bounds of parental discipline.

Additional considerations

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

At paragraph 121 of her report the Family Consultant sets out detail of her interaction with and observation of X. Thereafter the following material relevant to this consideration appears.
X reports he has established friendships in his Canberra school. He reports negatively about his relationship with the mother (1/10) “I really do not enjoy being with her at all.” “I am afraid of what might happen” “She usually hits me around the arms and tries to pull my hair”. “Sometimes she’ll hold me down and hit me.” He used to be able to lock her out of his room and thereby protect himself. He cannot do that anymore as the mother removed the lock. He described her as “attacking him”. During the autumn holiday visit “it got really bad”. He locked himself in the bathroom to get away from her yelling at him and trying to hit him.
X recited a litany of complaint. When asked if there were any positives about the autumn holiday visit X said he enjoyed seeing his friends.
X rated time with his father a 10/10. He said “He’s fair and he lets me learn how to be independent.” He cited further positive aspects of his relationship with the father and also Ms Watts.
The Family Consultant reports X’s wish as “Peace; we can live our lives without any more court processes with our Mum.”
X informed the Family Consultant that he believes he is doing better in school in Canberra than he was in B Town. He reported the teachers are nice and there are “nicer students”.
X reported negatively about his telephone time with the mother.
When asked to consider counselling to repair his relationship with his mother X told the Family Consultant he was not interested. He said his relationship was “damaged beyond repair”. It might repair if he could stay in Canberra and the mother “stopped yelling at us”.
Y was seen by the Family Consultant. Her report about the interview commences at paragraph 139 of the report.
Y during the interview referred to the mother as “the biological Mum/Mother”. Some of his responses were inconsistent, the Family Consultant reported.
Y said he had “a lot of friends” at school.
Y rated his relationship with his mother as 1/10 saying it was because “I don’t like what happened at the house in [B Town]”. This was said to be about alleged mistreatment by the mother. He said there was nothing really positive about spending time with his mother in B Town. He said that when living with the mother she hit both boys. He said she shouted at them. She had scratched him. He said the mother told lies and left him frustrated.
Y rates spending time with the father 10/10. “He’s never hit me or my family ever”. Y spoke positively about Ms Watts. He described enjoying a good relationship with X and his step sister and half-brother. He said of X “He’s my brother, he’s been protecting me from her (the mother). He wished “For my biological mum to leave us alone.” He would like his mother to let him live with the father and to be “nice to us”. He considered he should spend 10 per cent of his time with the mother “because of all the horrible things that she has done tom me and my brother.”
Y thought he should spend 30 minutes a day communicating with the mother by phone.
The Family Consultant reported the views expressed by the children are not dissimilar to that they expressed as part of the Family Report dated 5 January 2018 and the limited issues report dated 5 August 2016.
The observation by the Family Consultant of the children with the mother described in the report a very combative time with X accusing her of alleged mistreatment and the mother denying it. The interaction was so intense that it caused the mother to become distressed and the Family Consultant removed her from the room and spoke to her alone. When asked about their reaction to the observation session each boy was very negative about the way the mother acted. The Family Consultant attempted a further observation time of the boys with their mother. That also was very combative with the boys reacting negatively to almost all her interaction. The Family Consultant reported that the boys told the mother repeatedly they wanted to live in Canberra.
The Family Consultant concluded that the children and the mother have a fractured relationship.
The Father was observed with the children. The Family Consultant concluded “This observation raises no concerns about the (sic) [X] and [Y’s] relationship with [Mr Watts], [Ms Watts], [W] and [Z].”
In relation to the weight which could/should be given to the wishes/views of the children about where they live and spend time with each parent, Ms H assessed X as “slightly immature”. That view of his maturity also coincided with the view formed by Ms D. There is no conclusion to show the assessed maturity level of Y and thus it must be concluded that he presented as having a maturity consistent with that expected of a child of his age and background.
Nothing is suggested by Ms H in her report to cause the court to doubt that the expressed views and wishes from X were not genuinely held at this time no matter how they arose. The same is true of Y.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
This topic has been addressed in the paragraphs above. Those paragraphs set out the observations and conclusions of the Family Consultant. I am satisfied that the children manifest for the observation of the Family Consultant an excellent, warm and reciprocal relationship with the father. I am satisfied the children manifest for the observation of the Family Consultant a poor, disrespectful, and negative relationship with the mother which evidences no warmth.
I am satisfied the boys have a close and supportive sibling relationship and that Y looks to his brother for protection and care when in the mother’s household or care. The observation of the boys by the Family Consultant is also suggestive of a protective relationship which X has for Y.
In her report, Ms H refers to the opinion of the previous reporter Ms D where she reported the children displayed a “reasonably close” relationship with both their parents. Ms H considered why there was a different conclusion reached by her. She listed some possible reasons. Ms H referred to the earlier reports of the children’s views and noted the consistency with which the children complained about the mother’s treatment of them and stated their wish to live with the father in Canberra. She concluded “This suggests the children’s views are strong and they have held such views for an extended period of time.”
The Family Consultant reports at paragraph 193:
The crux of this case appears to be whether the children’s fractured relationships with [Ms Lorreck] have been caused by, as [Mr Watts] alleges, [Ms Lorreck] abusing the children, or as [Ms Lorreck] alleges, as a result of [Mr Watts] interfering in their relationship. Information gathered in this assessment suggests that [Ms Lorreck’s] parenting of the children might have been sub-optimal, on occasions, and that they may have been subjected to psychological harm in her care. Collateral information indicates that [Mr Watts] may have interfered in the children’s relationship with [Ms Lorreck], consequently this may have initiated problems and/or exacerbated existing problems in the children’s relationship dynamic with her.”
The Family Consultant explored some possible plans for the children. She looked at a suggestion, promoted by Ms D in her report, that X could live with the father and Y live with the mother. Ms H cautioned against such approach saying “If such an order is made the children are likely to feel upset at being separated from one another and it may cause tension in their relationship dynamic. Moreover such an order could add to the tension the children experience in their relationship with Ms Lorreck because it is not in synch with their wishes.”
The Family Consultant concluded with the passage referred to above at paragraph 208 of her report namely:
208. On balance, weighing up the propositions it appears that, Mr Watts is best placed to meet X and Y’s psychological, educational and physical needs, therefore it is recommended that they live with him and accordingly that he is granted sole parental responsibility.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The evidence suggests that the parents have such a conflicted and suspicious relationship that it is not reasonably possible now for them to be expected to be able to conduct a reasonable and child focused conversation about the future care of the children. So much is so that the Independent Children's Lawyer submits an order for sole parental responsibility be made in favour of the father and the mother seeks such an order for herself.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The evidence before the court has not canvassed this aspect of the parental relationship.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

If the children live with the mother that will be a change in the nature of the way they have been cared for since at least 2009. They will have significant separation from the mother because of the distance between Canberra and B Town. The mother has not suggested, so far, that she would move back to the Canberra area so she could have a greater amount of time with the children should that be an available outcome at the conclusion of the case.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In this case this is a real issue to be addressed. The mother lives in B Town and she says she cannot afford to commute frequently to Canberra to spend time with the children. The evidence from the mother has been that she cannot afford to offer the children the same lifestyle as appears to be within the province of the father.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Ms H, the Family Consultant who has prepared the most recent Family Report, concluded in a well-considered and, in my view, well balanced report that the father displays all the necessary capacities to attend to the children's psychological, educational, and physical needs. She has also concluded in paragraph 205 “This assessment indicates that Ms Lorreck currently has problems adequately meeting the children’s needs, if the children’s challenging behaviour intensified there is no guarantee that she would have the capacity to effectively support them.” The Family Consultant also opined that information suggests “[Ms Lorreck] lacks skills at being attuned to the children’s needs.”
The Family Consultant also stated at paragraph 205 that if the children's reports are true “it would appear that the children are at risk of psychological harm and possibly physical abuse in her care.”
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The Family Consultant Ms H assessed X as slightly immature. I have referred to this above. No similar description is found in relation to Y, however, who is now 11 years of age.
It appears to be conceded by the mother that the father has a level of affluence in his family which she does not enjoy. Consequently, the mother says the father’s ability to provide materially for the children is greater than hers. She suggests (not directly) that the children are attracted by that materialism. A further inference raised by the mother is that the father uses his superior financial position as a weapon against the mother.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This consideration is not an issue in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There are allegations and counter allegations made by the parents in this case. One of the concerns raised by the mother is that the father has undermined the children’s relationship with her. The father makes allegations about the mother’s parenting style and clearly listens to and supports the children’s position in respect of their mother. These matters have been canvassed extensively by Ms H in her report in a balanced and considered manner. Ultimately she reaches some guarded conclusions based considerably upon her observations of the boys with each parent and her interview with each boy.
(j)any family violence involving the child or a member of the child’s family
In this case the principal focus of the family violence consideration is the alleged physical abuse perpetrated upon the boys by the mother. The Family Consultant raises concern about psychological abuse of the children if their reports of their interactions with their mother are accurate.
The mother has also complained that she was physically assaulted by the father kicking her and pushing her on an occasion in November 2007.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
There is no evidence of any current family violence order. The statements by the children of concern about “lies” being told by the mother, together with denials by the boys that they did not observe family violence perpetrated by the father on the mother, may suggest allegations were made by the mother in the earlier parts of this long running litigation.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The matter still needs to be resolved by the making of final orders. That will necessarily involve a further hearing.
(m)any other fact or circumstance that the court thinks is relevant
What weight then should be given to the children's views and wishes? If the Court concludes that considerable weight should be accorded to the views of X then what are the consequences of same?
I conclude that the wishes of X should be given substantial weight. Although assessed as slightly immature in some thought processes, what does that mean? Is a slightly immature 15 year old equivalent to a 14 year old whose maturity is that which falls within the expected parameters for a child of his age? If so, ought the Court give significant weight to a 14 year old with those characteristics? My conclusion is that it should.
These children, and in particular X, have been expressing a strong wish to live in Canberra with the father. The Independent Children's Lawyer makes clear the children have emphasised to her their exasperation for the court not taking any real notice of what they want and say. Their conclusion is clearly based upon the understanding that the court would not have made orders for them to live with the mother in Queensland unless that was the case.
Lawyers and judges understand that the wishes of the children are but one of the considerations explored by the court in reaching a determination as to the best interests of the children. In the past there may have been good and overwhelming reasons why the court was compelled to make the orders placing the children in the care of the mother against the children’s stated wishes. If that was the case then, it now seems that may have changed and certainly at this time when the court is required to make an interim order pending the trial in March next year, I conclude there are compelling reasons why orders should be continued to permit the children to live with the father.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the best interests of the children will be best served in the interim by making orders pending further order which provide for them to live with the father and have ongoing contact with the mother subject to certain restrictions.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

The presumption does not apply where there has been family violence. In this case, if the children's reports are correct about the mother’s discipline of them, then I need to err on the side of caution and accept that is probably correct. Consequently I will find there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case the Independent Children's Lawyer has pressed for an order for sole parental responsibility to the father. The mother has pressed for an order for sole parental responsibility to herself.
The evidence which is available at this time, satisfies me there is a high level of suspicion between the parents and distrust. As such, especially in the context of an interim order to operate until 25 March 2019 when the case will have its final hearing, it is in the children’s best interests that whatever parental disputes they can be shielded from must be in their best interests. I propose to order that the father have an interim order for sole parental responsibility. I also propose to order he invite the mother’s input to any decision he is required to make which impacts upon the long term welfare of the children.

Section 65DAA

SECTION 65DAA(1)-(4)

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. As stated above I propose to make an order for sole parental responsibility.

SECTION 65DAA(5)

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. The section also requires the court to consider other configurations of time for the children to live with and spend with each parent or relevant person.
The distance between the parties geographically and the significant deterioration in the boys’ relationship with the mother does not permit the Court to consider an equal time order. I will set out below my conclusion as to the order which should be made for the time the children spend with the mother.

Conclusion

I have reached the conclusion that it is in the best interests of these boys to remain living with their father in Canberra pending further order.
It is clear to me that these children are battle weary and, as far as X is concerned, incredulous as to what he has to say or do to make a judge of this court listen to what he desires/needs out of this sorry mess it has been his misfortune to have been landed in.
It seems to me that whatever blame might rest on the father for having encouraged the children to be dissatisfied about living with the mother, the children have experienced living with the mother and that experience, and relationship they have with her, has not been sufficiently robust to defeat any undermining the father has engaged in. The children have not been swayed from their desire to live primarily with him since 2009 when the first Family Report stated that was the case.
It is a reality of life that children are sometimes reported to be more comfortable living within the parenting style of one parent as a preference to the alternate parent. There appear to be multiple reasons why that may be so. Some of those reasons have been explored in the January 2018 and the May 2018 Family Reports prepared for this court. I am sure, if given the chance, the Family Consultants who prepared those reports would agree there may be other underlying reasons which prompt the boys’ preference which is now being stated by them at the highest level they are able to state. It seems to me that these boys have reached a point where they are prepared to do “whatever it takes” to ensure they are able to live with their father. That must be a real concern to a court charged with making orders which, inter alia, seek to remove children from harm’s way.
I conclude it is time these parents listened to what these boys have to say in relation to where they choose to live. To do otherwise at this time is likely to lead to the boys moving to more extreme behaviour such as refusing to spend time with the mother or to communicate with her in any manner. In the absence of evidence which can be given substantial weight, showing the boys will be at risk of psychological damage if they live with their father, then that should happen now. There is no suggestion the children have experienced any physical harm in their father’s care or that his method of discipline is seen as excessive or unfair by the boys, quite the contrary.
Although the Family Consultant Ms H clearly considered the mother’s assertion that the boys’ relationship with her has been seriously undermined by the father’s interaction both physically and verbally with the boys, she has considered, on balance, that is not probable. Ms H has not been cautious in her ultimate recommendation as to the placement of the children with the father.

The overseas trip for the boys this year

The Independent Children's Lawyer has pressed for an order that the children be permitted to travel overseas with the father and the father’s family between 8 October 2018 and 15 November 2018. The mother said she would not consent to the trip because the boys would be missing school.
The Independent Children's Lawyer tendered a Minute of Order she was submitting should be made by the Court. The document was marked as exhibit ICL3. The minute sought that the order of the Full Court of 9 August 2018 continue. It proposed the children be permitted to travel overseas with the father from 8 October 2018 to 15 November 2018. It proposed that the currently in force orders be suspended to permit the overseas travel. It proposed contact times for the children with the mother while they are overseas with the father.
The Independent Children's Lawyer pressed for the suspension of orders for the children to spend time with the mother during the time they were on the overseas trip. She pressed for the children to have phone contact with the mother during their overseas trip.
The father clearly wishes to take the children on the trip and has spoken to the children’s schools seeking permission to take them out of school for that occasion and has sought advice as to what school work he should have them complete during the trip. The children are clearly desirous of undertaking the trip.
The trip has been paid for by the father. Clearly, if the Court does not permit the trip the boys will have another reason to blame their mother.
This is an exercise of weighing advantage and disadvantage to the children of participating or not participating in the trip. There is no expert evidence about the balance of advantage and disadvantage from a scholastic worth point of view.
The advantages to the boys which I can identify are as follows:
·The knowledge which can be absorbed from experiencing other cultures and languages.
·Historical education as the boys are exposed to the museums and buildings and structures in the places visited.
·Enjoying a holiday environment with their father and siblings now forming part of the household they reside in.
The disadvantages which I can Identify are:
·Missing school time and then having to catch up.
·Making spending telephone time with the mother more difficult in that differences in world time have to be accommodated.
The disadvantage of not being able to attend is a very significant one. It is predictable that the boys will be very disappointed if they cannot participate in the trip. The probability is that if the boys could not accompany the father on the trip the whole family unit would be denied. That would probably make the environment in the father’s household more hostile to the mother than it now may be. Such a circumstance would not be conducive to a positive relationship between the boys and the mother.
The boys would inevitably be very cross with the mother.
On balance I conclude the best interests of the boys require that the order submitted by the Independent Children's Lawyer permitting the children to participate on the overseas trip with the father be made.

The Orders to be made

Each of the parties and the Independent Children's Lawyer’s proposed minutes of order are set out in the earlier part of these reasons.
I propose, as stated above, that the children live with the father until the conclusion of the final parenting hearing.
I propose that the children spend time with the mother as recommended by the Independent Children's Lawyer and supported by the father. I do consider, however, that X is mature enough to have a real say in the amount of time and the circumstances in which he spends time with the mother. I conclude that his relationship with his mother is now very fractured and if he is forced to attend on time with her whether in B Town or elsewhere, he will not accept her authority and will be very suspicious of her motives and actions during that time. Further I hold a concern that he will be very protective of Y during any such periods and that will probably make the mother’s ability to interact with Y very difficult. I propose to record a recommendation in the body of the orders that each party respect the wishes of X in relation to the time he spends with each parent. The father should encourage X to spend time with the mother within reason. X should not be distressed in such attempts to encourage his relationship with the mother.
I propose that the children have telephone time with the mother at fixed times each week. Given the family dynamic at this time and the nature of the relationship between the boys and the mother I do not wish to see a circumstance where the boys become anxious any time the phone rings thinking this could be a stressful interaction with the mother. I consider there is a greater prospect of success in achieving conversation of a pleasant nature if the boys are able to prepare themselves knowing when to expect the mother’s call in advance. On the other hand, should the boys wish to speak to their mother they should be free to do so at any time.
I propose to order the Independent Children's Lawyer to explain the orders and reasons to the children in language she considers they are able to comprehend.
Given the specific descriptions by X of the nature and extent of physical punishment he has received from the mother I consider the prospects of any such chastising is likely to prevent X being able to have an ongoing relationship with the mother and in any event neither party should be using corporal punishment of any nature on the children. I propose to restrain each parent from any such action being aware that there is no suggestion the father has engaged in such activity.
I will recommend that the mother engage in confidential therapy.
As stated above I propose to permit the father to remove the children from Australia so that they may accompany him on an overseas holiday as has been planned. Orders to ensure the mother has information about where the children will be and she can have contact with them during the trip orders will be made to facilitate same.
I will recommend the children be offered the facility of confidential therapy.
I will make directions for trial.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 14 September 2018.

Associate:

Date: 14 September 2018

[2018] FamCA 850

14 September 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies

Costs

Appeal

Natural Justice