Maurice & Maurice - [2022] FedCFamC1F 447

Federal Circuit and Family Court of Australia
(DIVISION 1)
Maurice & Maurice [2022] FedCFamC1F 447

File number(s): ADC 4724 of 2013

Judgment of: MEAD J

Date of judgment: 24 June 2022

Catchwords: FAMILY LAW – CHILDREN – Proceedings for parenting and property settlement originally commenced in 2013 – Final parenting orders and property settlement orders made by consent in December 2015 – Various Contravention Applications filed by both parties within six months of final orders – Children exposed to high conflict between the parents post-separation – Current parenting proceedings commenced by the father on 3 April 2018 – Children primarily residing with the mother at that time – Children moved to live with the father on 1 May 2019 – Children aged 14 and 12 years at trial – Minimal supervised interaction between the children and the mother after 1 May 2019 – No meaningful relationship between the children and the mother at the time of trial – Mother’s capacity to meet the children’s emotional needs very limited – Children’s views balanced and illustrated by the mother’s evidence – Children’s wishes given significant weight – Time spending and communication between the children and the mother ordered only at the children’s request and in accordance with their wishes – Father’s belated application to relocate to Queensland with the children refused

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DA, 65DAA, 65DAC

Cases cited:
Mazsorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

Division: Division 1 First Instance

Number of paragraphs: 283

Date of hearing: 8-12 November 2021 and 21 January 2022

Place: Adelaide

Counsel for the Applicant: Ms Pangallo

Solicitor for the Applicant: Norman Waterhouse Lawyers

Counsel for the Respondent: Ms Lee

Solicitor for the Respondent: Georgina Parker Lawyers

The Independent Children's Lawyer: Ms Olsson

Solicitor for the Independent Children's Lawyer: Silkwoods
ORDERS

ADC 4724 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MAURICE

Applicant

AND:
MS MAURICE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MEAD J

DATE OF ORDER:

24 June 2022

UPON NOTING the terms of paragraph 1 of the order of 11 January 2019 and paragraph 1 of the order of 1 December 2020 which orders are reflected in paragraph 10(a) of this order.
THE COURT ORDERS THAT:
1.That all previous parenting orders made herein be discharged.
2.That the father have sole parental responsibility for X born in 2007 and Y born in 2009.
3.That the said children live with the father.
4.That the said children be at liberty to spend time with their mother and communicate with her as they may reasonably request in consultation with each of their parents.
5.That the father facilitate any reasonable requests made of him by X and Y or either of them to spend time with and communicate with their mother.
6.That the mother be permitted to forward appropriate written communication and gifts to X and/or Y on special occasions such as their birthdays, Easter and Christmas or at such other times as may be reasonable.
7.That the father ensure that X and/or Y receive all and any communications and/or gifts forwarded to them by the mother from time to time and use his best endeavours to request the children to respond appropriately to her.
8.That the father provide to the mother by electronic means and within fourteen (14) days of receipt of same copies of formal school reports received from time to time with respect to X and Y during each academic year pending the conclusion of their high school education.
9.That the father advise the mother forthwith upon X or Y suffering any serious medical condition or being involved in any accident either of which requires hospitalisation or specialist medical treatment.
10.That the father be restrained and an injunction is hereby granted restraining him from:
(a)changing the school currently attended by X and Y for the remainder of their high school education without giving the mother twenty-one (21) days written notice of his intention to do so; and
(b)changing the residential address of X and/or Y from the Adelaide metropolitan area until the completion of the high school education of each of them without the prior written consent of the mother or an order of this Court.

11.That the parties be restrained and injunctions are hereby granted restraining each of them from criticising, abusing or denigrating the other of them to or in the presence of X and/or Y and from permitting any other person to do so.
12.That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maurice & Maurice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction

Mr Maurice (“the father”) and Ms Maurice (“the mother”) are unable to agree as to appropriate parenting arrangements for their two children, X born in 2007 and at the time of trial in November 2021 aged 14 years and Y born in 2009 and at the time of trial aged 12 years.
By November 2021 the children had been in the father’s sole care since 1 May 2019. Subsequent to that date X met with the mother in the presence of Ms R on two occasions, following a consent order for reunification counselling with Ms R made by Judge Heffernan on 26 July 2019. She also met with her on two occasions in the presence of a worker at the Children’s Contact Service B in August and September 2020, pursuant to an order for time spending between the mother and the children at the Centre made by Judge Heffernan on 14 April 2020.
Y had attended with X on those four meetings with their mother, and in addition had spent one hour on 27 June 2020 with her mother supervised by a friend of her mother’s pursuant to an order of Judge Heffernan of 17 April 2020.
As at November 2021 the parties had been engaged in litigation concerning parenting arrangements for the children “on and off” since 17 December 2013, a period of almost eight years.
Background
The mother and father married in 2001 and separated on 2 September 2013.
On 17 December 2013 the father filed an Initiating Application with respect to parenting issues and property settlement. At that time X was aged 6 years and Y was aged 4 years.
That tranche of the proceedings regarding parenting issues was concluded by way of a final consent order made on 9 December 2015. The order provided for:
·the parties to have equal shared parental responsibility for the children;
·the children to live with the mother;
·the children to spend time with their father during school term time from after school on the first of the father’s rostered day off until the commencement of school on his fourth rostered day off in circumstances where he worked as a medical professional on a four day on and four day off rotating roster;
·for additional time spending during school holiday periods if the father was on annual leave or not working and extending the time if he was working such that it commenced at 12noon on his first rostered day off working and concluded at 5.00 pm on his last rostered day off;
·special occasion time, Christmas school holiday time, handovers, telephone communication between the children and their parents, various injunctive orders and orders with respect to the provision of health and educational information and the like.
The order was extremely complicated, in part because of the children’s time with their father being structured around a rotating roster. It was however also illustrative of the level of conflict between the parties in that the order and the ten preceding notations thereto comprised seven and a half pages. The order itself comprised seventeen substantive orders, many of which contained multiple subparagraphs. The tenor of the orders was suggestive of a determination on the part of both parties to eliminate any chance of flexibility in the children’s parenting arrangements.
Within five months of the finalisation of the proceedings (final orders for settlement of property were made by consent on 18 December 2015) the father filed a Contravention Application on 19 May 2016, followed by two Contravention Applications filed by the mother on each of 27 October and 10 November 2016.
The father alleged twelve breaches of the parenting order of 9 December 2015 by the mother and one breach of the order for settlement of property made 18 December 2015. On the same day he filed the Contravention Application he also filed an Application in a Case relating to matters of property settlement.
The mother’s Contravention Application filed 27 October 2016 alleged the father had breached the parenting order of 9 December 2015 on two occasions. Her Contravention Application filed on 10 November 2016 related to property settlement issues.
On 15 November 2016 the Court found against the mother with respect to Counts 1, 2 and 3 of the father’s Contravention Application relating to parenting order breaches and found that she did not have reasonable excuse with respect to the breach alleged in Count 1. The Court then varied three subparagraphs of the parenting order of 9 December 2015 and ordered the mother pay the father’s costs in the sum of $1,275. That Contravention Application was otherwise dismissed.
On 23 May 2017 an order was made specifying handover time for the purpose of the children’s time with the father in the July 2017 school holidays. At the same hearing the mother’s two Contravention Applications and the father’s Application in a Case filed 19 May 2016 were dismissed by consent.
It was a matter of concern to the Court that notwithstanding the level of detail contained in the orders for settlement of property and parenting issues made by consent in December 2015, a significant level of litigation had already been generated by both parties in the twelve months following.
On 3 April 2018 the father filed a fresh Initiating Application with respect to parenting issues. That application commenced the current tranche of proceedings.
As well as his own affidavit in support of the Application and the Notice of Risk, he also filed an affidavit of his solicitor annexing a report of a Ms C.
In the Notice of Risk filed by the father with his Initiating Application he alleged:
The mother continuously denigrates and ridicules the father and the father’s partner to the children.
The mother fails to support the children’s relationship with the father which has caused and continues to cause the children to suffer emotional and psychological abuse.
The mother has physically abused the child [X] in the presence of the child [Y] which has caused both of the children significant distress and anxiety.
The mother’s conduct is having a detrimental effect on the emotional and psychological welfare of the children.
In the father’s Initiating Application he sought:
·a discharge of the orders of 9 December 2015;
·that the parties have equal shared parental responsibility for X and Y;
·that the children live with him and spend time with their mother each weekend during school term and for half of the school holidays; and
·an extensive raft of orders with respect to the enrolment of the children in extracurricular activities, restrictions on changing the residence of the children, and fairly standard specific issues orders relating to the provision of educational and health information.
At the first return date of the father’s application on 7 May 2018, prior to the filing of the mother’s responding documents, the Court ordered that an Independent Children's Lawyer be appointed as a matter of urgency.
In the mother’s Response filed 17 May 2018 she sought that the final orders made on 9 December 2015 remain in full force and effect, effectively seeking that the father’s application be dismissed.
In the Notice of Risk filed with her Response she did not allege child abuse but under the heading “Allegations relating to family violence” she stated as follows:
Family violence towards the Mother/Applicant [Ms Maurice] by Father/Respondent/Ex Husband [Mr Maurice].
Since Sept 2013 I have had numerous “000” Police Calls to attend at my residence [D Street, Suburb E]. I have also made numerous personal reports to the [F Police Station].
The Children ([X] and [Y]) have been witness to various incidents of family Violence.
On 28 May 2018 the Court ordered that the Independent Children's Lawyer obtain, file and serve a family assessment report. The Court further ordered that the affidavit of the father’s solicitor filed 3 April 2018 together with its annexures be uplifted from the court file and that the father be restrained from providing the report of Ms C that had been annexed to the father’s solicitor’s affidavit to the expert preparing the family assessment report.
The first family assessment report was prepared by Ms H and dated 25 October 2018.
Under the heading “EVALUATION” on page 19 of that report Ms H referred to “the highly likely event that the significantly mistrustful and acrimonious relationship that currently existed between the parties will continue until the children reached adulthood.”[1]
[1] Family Assessment Report of Ms H dated 25 October 2018 – paragraph 115.
In paragraph 117 of that report Ms H commented on concerns that the mother had not “moved on” from the context of her separation from the father and that:
Whilst the mother appeared to have some insight into the difficulties [the] children face in relation to living between separated parents, on the other hand it seemed that she may be viewing some of their behaviours through the lens of her own emotional state towards the father and [Ms G]…
In paragraph 118 she expressed concerns about the impact on the children of their exposure to their mother’s feelings about their father and his partner and in paragraph 119 she referred to the children’s wishes, conveyed to her, to spend more time with their father. In the same paragraph she referred to positive elements to the children’s relationship with their mother.
In paragraph 120 of her report she recommended an increase in the children’s time with their father by one overnight period and for the children and both parents, but particularly the mother, to engage in family therapy. In that same paragraph Ms H made the following comment:
…[Ms Maurice] was especially reminded that addressing her relationship with the children was a priority, as if this did not occur in a timely manner as they get older [X] and [Y] will be more likely to ‘vote with their feet’ in relation to where they stay and the Court becomes less able in compelling teenagers into care arrangements.
The comments to which I have referred in Ms H’s report, particularly in paragraph 120, assumed particular significance in the context of this matter as it progressed through to trial.
On 11 January 2019, in circumstances where the parties were unable to agree on where X should commence her secondary schooling, the Court was required to hear argument and determine that issue. It was ordered that she should commence at J School as and from the commencement of Term 1 in 2019 and continue at that school for the duration of her secondary schooling, unless otherwise agreed in writing. The mother had sought an order that she attend at K School, the father that she attend at J School, the school then attended by his partner’s children and preferred by X.
At the same hearing the matter was listed for trial on 18 November 2019. Upon my subsequent appointment to the then Family Court of Australia the file was transferred to the docket of Judge Heffernan in the then Federal Circuit Court, and the trial date of 18 November 2019 was vacated.
On 8 May 2019 the father filed an Application in a Case, wherein he sought a suspension of the orders of 9 December 2015 regulating the children’s day to day living arrangements, together with an order that the children live with him and spend time with their mother in accordance with their wishes. He further sought an urgent updated interim family assessment directed to the children’s wishes.
In his affidavit in support of the Application in a Case he deposed to the children having left the mother’s home at their own instigation on 1 May 2019 and not wishing to return to her care. Annexure “C” to that affidavit was a report of Ms C. On 28 May 2018 the Court had ordered an affidavit of the father’s solicitor filed for the sole purpose of annexing that report be uplifted from the file. That uplift had the effect of removing the report of Ms C from the file at that time.
In the Notice of Risk filed with the Application in a Case he alleged:
The respondent mother and maternal grandfather have physically assaulted the children [X] and [Y] and have subjected them to verbal abuse and threats.
The children have made various disclosures to their therapeutic psychologist [Ms C] and to the family assessor [Ms H].
…
The children are at risk of being verbally and physically abused by the respondent mother.
…
The children have disclosed to their therapeutic counsellor, family assessor and the applicant father that they have been subjected to physical violence by the respondent mother and the maternal grandfather.
…
The respondent mother continually subjects the children to emotional abuse by denigrating and ridiculing the applicant father, the applicant's wife and her children. The respondent mother refuses to acknowledge the disclosures made by the children to their therapeutic psychologist and to the family assessor. The respondent mother is incapable of changing her behaviour. The children are fearful of returning to the care of the respondent mother due to the respondent's behaviour.
On 9 May 2019 the Court ordered that X and Y attend again upon Ms H for the sole purpose of an interview to ascertain and report on their views in respect of their current relationship with and time spending with their mother.[2]
[2] Order of Judge Heffernan made on 9 May 2019 – paragraph 2.
The second family report prepared by Ms H was dated 13 May 2019.
In Ms H’s second report under the heading “Discussion/recommendation” she said in paragraph 14:
Similar themes of relationship and interaction appear to have continued since the previous Report, and indeed reached crisis point in the absence of these themes being addressed, as suggested in that Report; essentially, [X] has voted with her feet and [Y] has followed.
In paragraphs 15 to 20 of the document Ms H reported, inter alia:
·that a main issue for X was exposure to her mother’s point of view about her father;
·X was expressing a desire to repair her relationship with her mother but if she did not observe changed behaviour from her mother then her willingness to spend time with her would reduce;
·while there were some normal themes of mother/adolescent daughter conflict present, they were exaggerated due to the dispute over care arrangements and the mother’s apparent denigration of the father and step-family;
·this lead the consultant to reflect on comments in her first report suggesting some areas of development with regard to the mother’s parenting stance;
·there were more apparent themes of alignment present in Y’s interview, with her primary motivator appearing to be in “making a stance” for the purposes of proceedings;
·this led the report writer to question the reliability of Y’s disclosure of abuse by her mother and/or question whether the mother has a “less than ideal tendency to use physicality” during conflicts with her children;
·those issues all suggested the father needed to be involved in any therapy the children undertook so that issues of alignment and “loyalty binds” could be clearly and openly discussed;
·she recommended that the children engage with a skilled family therapist as a matter of urgency;
·the purpose of that therapy should be to primarily initiate repair between the children and the mother, with time spending resuming concurrently but initially at a reduced level;
·that it was important that the therapy be reportable to the Court; and
·that any further orders may need to be clear in their directions as to time spending arrangements and consequences if orders are not complied with to perhaps provide some reassurance to X and Y about resuming spending time with their mother.

On 1 July 2019 the matter was listed for trial at 10.00 am on 20 July 2020, allowing three to four days.
On 26 July 2019 Judge Heffernan suspended the orders of 9 December 2015 regarding the children’s day to day care arrangements and ordered that they live with the father. In addition, he ordered that the mother be restrained from attending at X and Y’s schools if they were in attendance, as well as communicating with them via text message, telephone or FaceTime unless responding to a communication from them.
He further ordered the children and the mother participate in reunification counselling with Ms R. The Independent Children's Lawyer was to provide Ms R with various affidavits filed by the parties as well as the two family assessment reports of Ms H, and obtain a report on the progress of the therapy.
He restrained the father from taking X and/or Y to a counsellor, psychologist or other mental health professional (excluding school counsellors) without the consent of the mother and the Independent Children's Lawyer or the leave of the Court.
The order restraining the father from taking the children to any mental health professional without the consent of the mother and the Independent Children's Lawyer, or the leave of the Court, was made in circumstances where the father had facilitated the children’s attendance upon a Ms C for a period of approximately ten months between 11 April 2017 and 16 January 2018 without informing the mother of his intention to do so. The mother only became aware of that therapeutic intervention upon receiving a letter from Ms C dated 14 September 2017, inviting her to arrange a time to attend upon Ms C “regarding the children’s needs”.
The documents the Independent Children's Lawyer was to provide to Ms R included the father’s affidavit filed in support of his Application in a Case, annexing the report of Ms C. The order requiring the uplifting of an earlier affidavit annexing that report was made before Judge Heffernan assumed the conduct of the matter. Ultimately, the report of Ms C did not assume significance in these proceedings.
It was common ground that the reunification counselling process ceased in December 2019.
On 29 January 2020 the mother filed an Application in a Case seeking interim orders for:
·time spending with the children;
·her to be able to attend school functions to which parents were usually invited and attend X’s sports practices and matches;
·various injunctive orders against the father;
·the children to attend psychological appointments with either Ms L or Ms M for the purpose of receiving therapy and/or counselling at the father’s cost; and
·the Independent Children's Lawyer to obtain a report from each of the children’s respective school counsellors.
On 14 April 2020 Judge Heffernan ordered the parties to enrol into a children’s contact service, with the children and the mother to spend time at that service subject to further orders of the Court and a report to be obtained after six visits. An additional order was made for Y to spend time with her mother subject to her wishes on alternate Saturdays between 2.00 pm and 3.00 pm supervised by Ms N.
Further orders were made on 17 April 2020 including confirmation that X had been included in the order for time with her mother at the children’s contact service and varying the time and place of Y’s time with her mother, still subject to her wishes.
On 10 August 2020 Judge Heffernan listed the matter for trial on 17 May 2021 with five days allowed and ordered an updated family assessment report be prepared by Ms H. On 7 September 2020 Judge Heffernan recalled the matter and after consideration transferred it to the then Family Court of Australia.
On 10 November 2020 the matter came back before me and was listed for interim issues, including as to the place where Y should commence school in the 2021 school year.
On 1 December 2020 an order was made for Y to commence attending at J School for the 2021 academic year and until further order and outstanding interim applications were dismissed.
On 21 May 2021 the Court ordered the Independent Children's Lawyer to facilitate the preparation of an updated family report with respect to the children’s wishes and perceptions, and on 9 September 2021 the matter was listed for trial on 8 November 2021 with five days allowed.
As at the time of trial the children had not returned to the care of the mother. They had spent time with her in the presence of Ms R on two occasions in September and December 2019, and on two occasions at the children’s contact service at Suburb O in 2020. Y had spent time with her mother supervised by Ms N for approximately one hour on 27 June 2020.
Competing proposals
The father’s Further Amended Initiating Application was before the Court at trial. In that document, filed some six weeks prior to trial on 24 September 2021, the father sought the following orders:
1.        The orders made on 9 December 2015 be discharged.
2.That the father be at liberty to relocate to […] the State of Queensland with the children [X] born […] 2007 and [Y] born […] 2009.
3.The father have the sole parental responsibility in respect to the children [X] born […] 2007 and [Y] born […] 2009 subject to a requirement that he will:
3.1advise the mother in writing (electronically or otherwise) and to provide his views about any school which he proposes the children will attend and thereafter consult with the mother about that issue and if no agreement can be reached between the parties then the father shall make the final decision and advise the mother in writing of that decision;
3.2advise the mother in writing (electronically or otherwise) in respect to any non-emergency medical treatment of either of the children and provide to the mother the name and contact details of all health professionals involved in the care of the children.
4.        The children live with the father.
5.The children spend time with the mother at such times and on such conditions as may be agreed between the parties and subject at all times to the wishes of the children.
6.The mother do forthwith deliver up to the father the children's passports and that the father be solely responsible for renewing either of the children's passports without the consent of the mother being required to be obtained.
7.Each of the mother and father be restrained and injunction be granted restraining each of them from:
7.1denigrating or ridiculing the other parent or the other parent's partner and family members to the children within their presence or permitting or acquiescing to any other person doing so;
7.2physically disciplining the said children or permitting or acquiescing to any other person doing so;
7.3initiating any discussions in respect to the Court proceedings with the children, within their presence or permitting or acquiescing to any other person doing so.
8.        Each of the mother and father shall:
8.1keep the other parent advised at all times of their residential address, employment address and contact details including home telephone number and mobile telephone number and email address;
8.2authorise the children's schools to release to each of the parties copies of all school newsletters, school reports, school photographs and the like at the requesting parties sole cost.
9.Such further or other order as this Honourable Court deems just and equitable in the circumstances.
10.That the mother do pay the father's costs of and incidental to the within proceedings.
The father’s trial affidavit was filed on the same day. In both documents the father’s proposal to relocate with the children to Queensland was raised by him for the first time.
That led to the Court making a further order on 15 October 2021 for a brief updating report of the children’s views and perceptions with respect to the father’s proposal to relocate with them to Queensland.
On 12 October 2021 the mother filed a Further Amended Response seeking the following orders:
1.That the Further Amended Initiating Application of the father filed on the 24th of September 2021 be dismissed.
2.        The Orders made on the 9th of December 2015 be discharged.
3.The mother have sole parental responsibly (sic) for the children [X] born […] 2007 and [Y] born […] 2009.
4.        The children live with the mother.
5.The children spend time and communicate with the father upon such terms and conditions and at such times as Ordered by this Honourable Court.
6.        [order not sought]
7.The children attend [J School] or such other school as the mother may determine.
8.The father be at liberty to receive copies of information usually provided to parents by the children's schools including school reports, school newsletters and school photographs at the father’s cost.
9.The father be restrained and an injunction granted restraining the father as follows:
a.from denigrating the mother or members of her family and/or friends to the children or in the presence of the children or allowing any other person to do so;
b.from attending at the children's schools and extracurricular activities that the children are involved in without the written consent of the mother;
c.from taking the children or either of them to a counsellor, psychologist, allied health professional or specialist medical practitioner;
d.from communicating with either of the children by mobile phone, WhatsApp or through the use of any other social media save and except as Ordered by this Honourable Court or arranging for any other person to communicate with the children on his behalf;
e.from removing the children or either of them from the state of South Australia without the written consent of the mother;
f.from removing the children or either of them from the Commonwealth of Australia.
10.The mother provide the father with information with respect to the children's health including the name and contact details of the children's general medical practitioner, dentist, orthodontist, specialist medical practitioners, counsellor and/or psychologist and allied health professionals.
11.The father is at liberty to obtain information and reports from the children's general medical practitioner, dentist, orthodontist, specialist medical practitioners, counsellor and/or psychologist and allied health professionals at his cost.
12.The mother is at liberty to travel interstate with the children during school holiday periods. The mother advise the father not less than 7 days prior to the date that the mother intends to travel interstate with the children and provide the father with advice of the destination and mode of travel.
13.The mother is at liberty to travel with the children outside of the Commonwealth of Australia during school holidays for a maximum of 21 days over a two year period providing that the mother advise the father not less than 28 days prior to the date of departure of the date that the mother intends to travel and provide the father with an itinerary, flight and accommodation details and contact details for the duration of travel outside of the Commonwealth of Australia.
14.The father sign an application to renew each of the children's Australian passport within 14 days of the same being presented to the father and return the signed copy of the application to the mother within that time period.
15.      The father pay the mother’s costs of an (sic) incidental to this Application.
16.      Such further or other Orders as this Honourable Court deems fit.
The Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the legislative framework within which the Court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children's orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are set out in Section 60B(2) and provide that, except when it is or would be contrary to the child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[3] To determine the best interests of a child the Court must consider the factors set out in s 60CC(2) and (3) of the Act.
[3] s 60CA of the Act.
Section 61DA of the Act provides 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's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child's best interests for the child's parents to have equal shared parental responsibility.[4]
[4] ss 65DA(1), (2) and (4) of the Act.
In the event that an order is made for equal shared parental responsibility the Court must consider whether it is in the child's best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[5]
[5] s 65DAA(1) of the Act.
If the Court determines that such an order is not in the child's best interests, it must consider whether it would be in the child's best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[6]
[6] s 65DAA(2) of the Act.
The Act defines what is meant by substantial and significant time,[7] and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.[8]
[7] s 65DAA(3) of the Act.
[8] s 65DAA(5) of the Act.
All of those issues must be considered against the backdrop of the requirement that the parenting order the Court makes must be in X’s and Y’s best interests, as determined in accordance with the provisions of Section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
Primary Considerations:
s 60CC(2)(a) – The benefit to the child of having a meaningful relationship with both of the child’s parents.
At the time of trial unfortunately neither X nor Y enjoyed a meaningful relationship with their mother.
By contrast, they enjoyed a close and meaningful relationship with their father.
Based on the cases as presented to the Court by each of the parties, together with my observations of their demeanour, particularly in the witness box, I find that at the time of trial neither the father nor the mother exhibited any genuine wish for X or Y to spend any significant time with the other of them.
The concept of what constitutes a “meaningful relationship” has been discussed in many cases before this Court including in McCall & Clark (2009) FLC 93-405 ("McCall & Clark") at [118] and [119] where the Full Court of the Family Court said, after a discussion as to a definition of the word “meaningful”:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ('the present relationship approach');
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ('the presumption approach'); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents ('the prospective approach').
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is 'the prospective approach' although, depending upon factual circumstances, the present relationship approach may also be relevant…
In [121] of the same judgment their Honours referred to and accepted as appropriate "the interpretation of 'meaningful relationship' set out by Brown J in Mazsorski",[9] and went on to say in [122]:
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
[9] Mazsorski & Albright (2007) 37 FamLR 518 (“Mazsorski”).
In Mazsorski, which had been determined some to years prior to McCall & Clark, Brown J had expressed the following at [26] when considering the concept of a meaningful relationship, namely:
What these definitions convey is that 'meaningful', when used in the context of 'meaningful relationship', is synonymous with 'significant' which, in turn, is generally used as a synonym for 'important' or 'of consequence'. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one…
In this case it was unfortunate for both X and Y that at the time of trial the evidence, particularly that of the expert Ms H, was that their relationship with their mother was severely damaged.
Litigation had been ongoing by then for a significant proportion of each of the children’s lives.
Both children had suffered the consequences of their parents’ dysfunctional relationship, which had not improved in the eight years following the commencement of proceedings in 2013. This was a matter of significant comment by Ms H in her various reports to which I will refer later in these reasons.

Whether or not X or Y will or can derive positive benefit from the Court attempting to craft orders to foster their relationship with their mother is a matter to consider later in these reasons, following consideration of the other relevant factors.
s 60CC(2)(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 written submissions filed on 12 January 2022 it was submitted by counsel for the mother that the father “has exposed the children to ongoing psychological and emotional abuse by seeking to permanently severe (sic) the children’s relationship with the mother.”[10]
[10] Final submissions of the respondent mother filed 12 January 2022 – p 13.
It was further submitted on pages 14 and 15 of that same document that:
·the father had continued to undermine the children’s relationship with their mother since they had lived in his care;
·the father is grooming the children to despise, hate and fear their mother and in doing so the father is perpetrating coercive and controlling family violence against the children; and
·the father is teaching the children that their mother is abusive and neglectful and that they should not have a relationship with her.
By contrast, it was the position of the father that the reason the relationship between X and Y and their mother had broken down to such an extent that by 1 May 2019 they “voted with their feet” and left the mother’s home to live with him, was the psychological pressure to which they were subjected to by the mother in her household.
It was submitted by the father’s counsel on pages 3 and 4 of her written submissions that X and Y had made disclosures to Ms H about their mother’s conduct including:
·the mother minimising their time with their father;
·the mother expressing negative views about the father and his then partner Ms G;
·X being subjected to physical abuse by her maternal grandfather and her mother during the course of a dispute about her use of social media;
·X being held on her bed by her mother to compel her to change into sports clothing, resulting in a scuffle between X and her mother in circumstances where X objected to attending sports training;
·X and Y both being reluctant to ask to ring their father whilst in their mother’s care as a result of her disapproval;
·the mother being inflexible in relation to X “having my own opinion”;
·her comments about the father and his partner Ms G distressing Y, and the mother ignoring Y’s expressed concerns about that issue;
·Y’s observation of her mother and X regularly entering into verbal conflict and her mother being physically aggressive towards X at times, which incidents had been reported by Y to school staff and to the father; and
·her lack of acknowledgment of the father and the children’s step-family and her lack of acknowledgment of the impact on X of the comments made by her.
At trial it was clear from the cases as presented by both parties that they each held the view that X and Y were at risk of harm in the household of the other of them as a result of being subjected to or exposed to abuse, neglect or family violence.
It was undisputed that since the parties’ separation in September 2013 they had barely communicated with each other either verbally or in written communication, save and except on occasions of conflict.
There was little evidence before the Court to support a finding that either of the parents had made a concerted effort to protect X and Y from their own views and attitudes towards the other of them, which itself exposes the children to psychological harm.
Both parents conceded in cross-examination that they had spoken in critical and negative ways about the other of them both to and in the presence of the children. Although such conduct risked the psychological wellbeing of X and Y, they reported to their school counsellors and to Ms H and Ms R a greater level of distress from their mother’s conduct in that regard, in circumstances where her attitude to their father did not reflect their own experiences with him or relationship with him. The mother conceded that she and X in particular experienced periods of conflict, which she described as “miscommunication” as opposed to “arguments”.
I find from the evidence of Ms H and Ms R in particular that X certainly perceived the conflict as arguments, to the extent that ultimately she determined she could no longer live with her mother.
I find on the evidence of Y’s school counsellor as well as that of Ms R and Ms H that although she found aspects of her mother’s behaviour distressing, particularly criticisms of her father, she did not experience the same level of conflict with her as did X, but was distressed by observing that conflict.
I am satisfied that there were occasions when the mother and X became involved in physical conflict and that the mother’s father physically disciplined X on at least one occasion. Unacceptable as that behaviour is, I am satisfied that X did not suffer any serious physical consequences and that the impact of that behaviour on her was far less traumatic than the distress arising from the emotional conflict between she and her mother.
Taking into account the nature of the conflict between X and her mother in particular, and to a lesser but significant degree Y and her mother, I am satisfied that the mother poses no physical risk to either child.
I find that X and Y need to be protected from psychological harm as a result of being exposed to the constant conflict between their parents.
The conflict between the father and the mother is not evidenced by verbal or physical confrontations but by the dogged determination on the part of each of them to reject any level of responsibility for the circumstances in which the children have now found themselves for many years. Between late 2013 and 1 May 2019 X and Y were required to navigate between two households in the full knowledge that each of their parents despised the other of them.
I find that the end result of the conflict between X and Y’s parents was a determination on the part of X, supported by and joined in with by Y, to leave the home of their mother to reside on a fulltime basis with their father, and ultimately reject a relationship with their mother entirely.
I find that the father had greater insight into the circumstances in which the children found themselves and to his credit, he did facilitate the children attending upon Ms C for a period of ten months for therapeutic assistance.
During that same period and notwithstanding her initial lack of knowledge of the children’s involvement with Ms C, the mother did nothing to arrange further appointments for the children with Ms L pursuant to the existing order or obtain appropriate therapeutic assistance for herself. When invited by Ms C to meet with her regarding the children she chose instead to speak with Ms L. This did not assist either herself or the children.
Additional Considerations:
s 60CC(3)(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.
There was a significant body of evidence before the Court to assist with ascertaining the views of X and Y, including and in particular evidence of Ms H in her four reports and Ms R in her report. In addition, there was evidence from the school counsellor at P School, contained in records dated 10 February 2016 to 2 December 2020.
Ms H was an impressive witness and was not shaken in her views in cross-examination. In addition she had knowledge of the family dynamics over a period of three years prior to trial.
Ms H met with X and Y on each of 21 August 2018, 13 May 2019, 4 August 2021 and 27 October 2021. The appointments spanned a period of three years and two months.
At the time the children first met with Ms H they were living with each of their parents on a week-about basis pursuant to the consent orders of 9 December 2015.
At the time of their second meeting with her they had both determined to leave the home of their mother and were in the father’s sole care.
At the time of the third and fourth meetings they remained in the father’s care. The only time they had spent with their mother since 1 May 2019 was on two occasions with Ms R, two occasions at Children’s Contact Service B and, in the case of Y, on one occasion in mid‑2020 in the presence of one of the mother’s friends for one hour.
X was aged 11 years at her first meeting with Ms H and was described in paragraph 77 of Ms H’s first report as providing:
…information in a very matter of fact manner, and provided detailed and spontaneous narratives that were largely externally consistent with information provided by her sister. Her matter of fact presentation tended to corroborate the father’s suggestion that [X] had become resigned to the current dispute.
She described X appearing to be well aware of the dispute between her parents in relation to holidays and described it feeling difficult for her as it “tended to minimise her time with the father”.[11]
[11] Family Assessment Report of Ms H dated 25 October 2018 – paragraph 79.
In paragraph 80 of the same report Ms H commented that it seemed that both parents exposed X to their feelings about the dispute, with X seeming to share her father’s view that her mother was intentionally minimising the children’s time with their father but also intimating that her mother’s comments “tended to focus more so on her negative feelings towards the father, rather than on issues of dispute.”
X was reported as being exposed to what she described as “rude” comments made by her mother about her father and his partner Ms G, and describing those comments as causing her distress as they did not “equate with her experience of either her father or Ms G.”[12]
[12] Family Assessment Report of Ms H dated 25 October 2018 – paragraph 80.
In paragraph 81 Ms H reported X providing a “spontaneous and detailed narrative” about being physically abused by her maternal grandfather and to having told her father and best friend about the incident but not her mother because she was concerned that her mother would not believe her.
It was of note that she described to Ms H, as reported in paragraph 81 of the first report, that her father’s response when she told him about the physical interactions with her mother and maternal grandfather tending to be one of “disgust”.
As well as describing to Ms H a physical altercation with her maternal grandfather at the playground, she also told her of a further instance of a physical scuffle with her mother and maternal grandfather, in respect of which Y intervened, when there was a dispute about her use of social media.[13]
[13] Family Assessment Report of Ms H dated 25 October 2018 – paragraph 82.
As reported in paragraphs 83 to 85 of Ms H’s first report, X stated that:
·she enjoyed spending time with her mother; but
·conceded they had dispute at times, mostly when X objected to how her mother spoke about her father;
·she did not have the same disputes with her father;
·she felt that her mother was inflexible in relation to her expressing her own opinion with regard to attending at calisthenics;
·she was compelled by the mother to change into her sportswear on one occasion and held on the bed by her mother when she resisted;
·she had become physical unintentionally towards her mother during disputes, with Ms H describing that disclosure as appearing to make X become upset due to not wanting to upset her mother;
·her mother hated her father and anything to do with him; and
·the mother tended not to allow she or Y to ring their father when they asked to do so.
Ms H reported in paragraphs 86 and 87 of her first report that X expressed a dislike for Ms L and a feeling that Ms L did not believe her disclosures about her mother. She also expressed a desire to increase time with her father by spending one to two extra days per eight days with him on top of his rostered days off.
In her discussions with Y, as reported in paragraphs 88 to 98 of the first report, Y expressed a largely negative view about her mother which caused Ms H to wonder whether she was seeking to align herself with her father.
She reported Y’s narrative as lacking the balance suggested by X’s narrative, and to her apparently being reluctant to acknowledge any positive aspects of care by the mother and maternal grandparents. Her complaints however were about finding it “boring” spending time with them due to going to the same coffee shop all the time.
She reported Y expressing:
·worry about her mother finding out about her disclosures;
·a view that her mother was minimising her and X’s time with their father during holidays;
·concern about her mother’s negative attitude towards her father and the comments her mother made about he and his partner;
·having told her mother about her concerns but being ignored;
·her father not expressing a similar negative attitude to her regarding her mother;
·concern that her mother would not allow she and X to call their father when they requested to do so;
·a desire to spend increased time with her father on the basis of six out of eight nights with him;
·distress if her wishes were not supported by her parents or the Court;
·concern about her mother’s rigidity and “meanness” in relation to her expectations of the children around the house;
·observation of physical conflict involving X, the mother and the maternal grandfather; and
·the mother and X regularly having verbal conflict and to having seen her mother being physically aggressive towards X during those instances, about which she had told school staff as well as her father.
Ms H queried the basis of Y emphasising aspects of the mother’s care of the children and her “meanness” as set out in paragraph 94 of the report and wondered if those comments were being made “for the sake of the assessment process.”[14]
[14] Family Assessment Report of Ms H dated 25 October 2018.
In paragraphs 99 to 103 Ms H reported on observations of interaction between the children and each of their parents as well as Ms G.
The interaction with their father and Ms G was noted to be more animated in contrast to less animation and lively interaction between the children and their mother, which Ms H reported as being somewhat in contrast to the “relaxed and affectionate interaction” she noted between the mother and the children in the waiting room.
Ms H also obtained some information from P School, the school attended by both children at that time. She reported in paragraph 110 of her first report that “[Y] tended to display more emotional behaviour in response to disputes of conflict between her parents than in relation to practical matters relating to school”, and in paragraph 111 that the school had observed the parties engaging in “ugly confrontations” with each other on the school ground and in front of the children.
Exhibit “M 2” comprised documents produced by P School pursuant to subpoena arising from interaction between the children and the school counsellor from time to time. The records commenced on 10 February 2016 and concluded on 2 December 2020. They overwhelmingly referred to interactions between Y and the school counsellor and could be best summarised as reflecting significant turmoil on the part of Y arising from the dispute between her parents, conflict in her relationship with her mother and, at worst, examples of influence from her father resulting in alignment with him, or at best, a failure on the part of the father to protect Y from the conflict between her parents.
The author/authors of those notes were not required for cross-examination.
In paragraph 118 of the first report under the heading “EVALUATION”, Ms H commented that:
…on balance it seemed that the children do experience conflict with their mother that included a physical element. It may be also that added to the nature of relationship with their mother was the impact of their exposure to her feelings about the father and [Ms G] and their upset when time with him was minimised during holidays…
Ms H opined that she was reluctant to not support the children’s wish to spend more time with their father, but noted there were positive elements to the children’s relationship with their mother. She further recommended that the children and both parents, particularly the mother, engage with family therapy. In paragraph 120 of her report she stated as follows:
…[Ms Maurice] was especially reminded that addressing her relationship with the children was a priority, as if this did not occur in a timely manner as they get older [X] and [Y] will be more likely to ‘vote with their feet’ in relation to where they stay and the Court becomes less able in compelling teenagers into care arrangements.
By the time Ms H spoke with X and Y again on 13 May 2019 and provided a second less extensive report, the children had “voted with their feet”, left their mother’s home and expressed a determination to live fulltime with their father.
It was clear from the matters raised by X in her discussions with Ms H that she considered the relationship between she and her mother to have fractured further. X reported to Ms H, as set out in paragraphs 1 to 8 of her second report, that:
·her mother had conveyed her anger towards her following the previous report;
·she was of the view her mother did not acknowledge her past denigration of X’s father and step-family;
·this seemed to bother X as it conveyed to her that her mother was “duplicitous” and did not acknowledge the impact of her comments on X;
·she was sad that her mother thought she was like her father, that her mother thought her father lied and so in turn, she lied;
·she knew her mother did not like her father and that her mother found her to be “the most like Dad” out of the two children;
·she felt her mother felt similarly negative towards her and it seemed that was how she understood why conflict existed between she and her mother;
·her mother had told she and Y during a dispute about what snack she chose after school that they “go feral when you are at Dads”;
·after that comment the mother had tried to embrace her which X did not want to do in circumstances where she felt her mother “likes to pretend things don’t happen”;
·the incident had prompted X to tell Y of her plans not to return to the mother’s home after school the following day and that it was up to Y whether she wanted to join her;
·the following morning she had further conflict with her mother over the length of her school skirt and then openly informed her mother of her intention not to return to her care that day as she was “sick of you not listening to me and trying to call me and [Y] bad names…saying bad stuff about Dad. I’m fed up, I’m leaving”;
·she had a desire to repair her relationship with her mother and agreed with Ms H that she and her mother needed assistance to air some issues that troubled them;
·she would engage with a professional with her mother to enable her to “get trust back”;
·she was prepared to engage with a therapist other than Ms C as she knew that Ms C was not supported by her mother, so long as her mother also engaged;
·spending brief time with her mother in conjunction with getting help to repair the relationship would be reasonable; and
·she wanted to be able to observe her mother’s changed behaviour before resuming overnight time.
Ms H reported X conveying a sense of wariness about spending time with her mother due to her primary worry that her mother would withhold her from her father, that she would use physicality in resolving issues and that she would continue to denigrate her father or compare X unfavourably to him.

In paragraphs 9 to 13 Ms H described Y as reporting:
·having overheard the mother’s comment to X about she and X “coming back feral” from their father’s house;
·X then speaking with her about her intention to go to the father’s;
·being worried about whether she ought to leave her mother, as she had experienced her mother being “really nice to me for some reason” in the morning after X had told Y of her plan to leave;
·apparently not overhearing X telling their mother that morning of her intention not to return to her home but overhearing verbal conflict between X and the mother about X’s school skirt;
·her worry about her mother not allowing her to see her father “or go anywhere” once she became aware X was not intending to return to her mother’s house having “tipped the balance” for Y in making her own decision to leave her mother’s house;
·her mother having hit her on the back during a verbal conflict arising from a dispute about Y playing with Lego by herself, resulting in a sore back which she had not reported to her father because she did not want to worry him, and not at school as she had told them of similar experiences in the past and had not been believed; and
·she and X having spoken and agreeing they wished to live primarily with their father.
In paragraph 13 of her report Ms H noted that Y agreed with her suggestion that she was taking “a stance” by refusing to spend time with her mother. She opined that although Y had reported her mother having hit her, she was perhaps less afraid of being “hurt” by her mother but really more worried that if she returned to her mother’s care her mother would withhold her from her father. She also reflected on Y’s possible worry that to take a stance different to that taken by X may “compromise” the father’s case.[15]
[15] Family Assessment Report of Ms H dated 13 May 2019.
In the third report, prepared by Ms H following discussions with the children on 4 August 2021, Ms H referred in paragraphs 1 to 8 to issues raised by X. She described X as presenting in a calm and composed manner and conveying a sense of maturity and self‑assurance.
X reported to Ms H that she was not emotionally troubled by her medical condition, did not feel the need to engage in counselling about the issue and was not bothered by her physical appearance. She discussed serious training commitments relating to sports, as well as her acceptance into a competitive training squad and her hopes to play at a national and Olympic level.
X discussed friendship issues and advised she had established friendships with persons of similar values and morals. She spoke of her enjoyment of being in a leadership position and her pride in her House Captaincy.
X told Ms H she had a close relationship with her paternal grandmother and that she, her father and Y had developed tighter bonds as a result of the experience of her father’s relationship with Ms G coming to an end.
In paragraph 4 Ms D reported as follows:
[X] conveyed a sense of resignation in relation to her perception that she had provided her mother with opportunity to repair their relationship, but that both with [Ms R] and at the Children's Contact Service, these opportunities had ‘not gone well’. [X] conveyed her perception that, underlying her initial feelings of anger towards her mother, was a sadness due to her belief that her mother's behaviour towards [X] implied that she did not love [X]. [X] was able to reflect on her own behaviour during those sessions (‘I was probably a bit harsh’), but that this was due to her level of upset with her mother at those times. [X] concluded that her mother, rather than convey a sense of responsibility and apology, rather implied that the fault lay with [X] and [Y] (‘that it's all in our heads, that we needed to change, that something is wrong with us’), and otherwise tended to deny or deflect the children 's questions and comments. [X] furthered that these sessions ‘made me feel there was something wrong with me’, and prompted her to not want to engage with her mother so as to avoid experiencing these feelings. [X] also noted these sessions suggested to [X] that her mother, despite ‘chances’ being given, ‘has not changed’.[16]
[16] Family Assessment Report of Ms H dated 6 August 2021.
In paragraph 5 she reported X continuing to convey a balanced point of view and being able to imagine having positive feelings in her mother’s presence in the event her mother behaved in a manner X wished for. X however expressed a view that her mother would not be able to change.
X expressed a view as reported in paragraph 6 that cards the mother was sending to both girls on a regular basis did not take into account their personalities and were not chosen with an appreciation of their personalities, leading to her questioning whether her mother actually knew her. X conveyed to Ms H that she was prepared to continue to read correspondence from her mother, albeit less frequently, and that she:
…was open to conversation about the potential for indirect time via cards etc ensuring an ongoing, albeit superficial, connection so that if [X] wished to engage with her mother in future more directly there would be at least some sort of precedent of communication…
She expressed a wish to choose to spend time with her mother if she was directed to attend such time.
Ms H reported X as being protective over Y but supporting Y conveying her own wishes in relation to time spending with her mother.
In paragraphs 9 to 15 of her third report Ms H reported on her interaction with Y. Y reported feeling positive about attending at J School, and confirmed the worry shared with Ms H in 2019 that spending time with her mother would “convey the sense she wanted to live with her mother.”
Y reported to Ms H that she felt “a little bit” guilty for having spent time with her mother in the presence of Ms N in mid-2020, but denied that was a “significant aspect” of her position in not wanting to spend any direct time with her mother. Y clearly expressed not wanting to spend time with her mother but conceded “it was not all bad (her mother’s care), but bad memories ruined the rest.”
She expressed a view that her father would support her if she wanted to see her mother and that she did not consider the cards she received from her mother to be anything other than conveying an impersonal attitude.
Ms H referred to positive feedback she received from J School as to the attendance and progress of both X and Y at the school, as set out in paragraphs 16 and 17 of the report.
Under the heading “EVALUATION” commencing at paragraph 18 of the report Ms H again opined that X was able “to clearly and in a balanced manner articulate her reasoning and position regarding not wanting direct time with her mother.” She expressed no concern that the father had alienated her from the mother but spoke of the negativity of the mother towards the father having influenced X’s views, as well as the mother/daughter difficulties over time.
Although noting that the cards from the mother had not prompted X to want to engage with her, she noted that X had in the past been open to repair the relationship with the mother.
She described X as “a very determined and principled young, with clear expectations about relationships”. She referred to X’s excellent academic and leadership qualities at school, the mature way in which she was managing her medical condition and that “[X’s] current presentation and experience of care does not suggest deficits that would be ameliorated by compelling her to spend time with her mother.”[17]
[17] Family Assessment Report of Ms H dated 6 August 2021 – paragraph 20.
Ms H recommended however that the written communication, perhaps at a reduced level, remain in place to effectively keep the connection between X and her mother such that at a later time it may be more easily re-established.
In contrast, throughout the three reports of Ms H and the notes from P School, there was a clear concern that Y was led more by emotional responses, and that she had potentially been influenced in her views to some degree by a perception that she needed to take “a stance” by aligning with her sister and her father.
However, Ms H was clear to point out in paragraphs 23 to 26 of her third report that she did not consider those influences to be the sole reason for Y’s expressed view not to spend time with her mother. She opined rather that Y’s own experiences of the interaction between her mother and X, her own experiences of her mother’s care, her worry whilst in her mother’s care that she would be kept from her father and her concern about her mother’s capacity to ameliorate those worries contributed to Y’s concerns about feeling emotionally safe to resume a relationship with her mother.
Again, Ms H was not of the view that compelling a relationship between Y and her mother would provide “an aspect of care and relationship that will compensate for deficits otherwise in [Y’s] experience”.
In paragraph 25 Ms H expressed the view that directing Y and her mother to re-engage in reunification therapy was not recommended. This was in circumstances where information she gleaned from both of the children, from Ms R’s report and that of the children’s contact service did not suggest that the mother’s capacity to reflect on her approaches to parenting had improved to the level required to give either X or Y sufficient reassurance to be prepared to attempt to restore their relationship with their mother.
Ms R prepared what she referred to as a brief psychological report concerning her work with the mother and X and Y dated 28 January 2020, which was initially filed by the father’s solicitor annexed to his affidavit filed on 3 February 2020.
At trial Ms R’s report was a document relied on by the Independent Children's Lawyer, tendered by her as Exhibit “ICL 4”. Ms R was required for cross-examination by counsel for the mother. That cross-examination went only to the question of what documents Ms R had received and considered prior to commencing the reunification process. She was not cross-examined by the father’s counsel, who relied on her report.
Ms R confirmed in her oral evidence-in-chief that she had prepared the report as at 28 January 2020, by which time her work with the family had concluded. She confirmed that what she had stated in paragraph 2 on page 2 of the report was a true and accurate account of the basis upon which her work with the family ceased.
In cross‑examination by counsel for the mother she was asked what documents she had received, if any, before undertaking the therapy. She replied that she could see she got letters from lawyers but she did not have the family assessment report in her file so she did not think she had received it. She said she could not see any affidavits from the father or Ms C’s report on her file, did not recall reading those documents and did not believe she had done so.
She was asked to look at correspondence annexed to the affidavit of the father’s solicitor of 3 February 2020 and whether she had received:
·a letter from the father’s solicitor dated 13 January 2020;
·a letter from the father’s solicitors to the mother’s solicitors Georgina Parker Lawyers dated 13 February 2020;
·correspondence from the father’s solicitors to her dated 16 January 2020;
·a copy of the letter from the father’s solicitors to Georgina Parker Lawyers’ office dated 16 February 2020; and
·email correspondence between Ms R and the father’s solicitor dated 15 January 2020 and 13 January 2020.
She replied that she believed that she had looked at all of that correspondence.
When asked whether she had received any correspondence from the Independent Children's Lawyer she replied that she did not believe so nor did she think she had received a copy of the order of 26 July 2019 of Judge Heffernan regarding her involvement.
When it was put to her that she did not know that the Independent Children's Lawyer was to provide her with various documents she replied that she could not see that in her file “so no”. That concluded the cross-examination.
At the time of the making of the order by Judge Heffernan on 26 July 2019 the mother was represented by counsel. It was noted in the preamble to the order that the mother consented to the terms of paragraph 4 wherein the reunification counselling with Ms R was ordered. All of the provisions of the order of 26 July 2019 were made with the consent of the father but the mother consented only to the terms of paragraph 4.
Paragraph 5 provided for the Independent Children's Lawyer to provide to the reunification therapist with:
…a copy of the family assessment reports of [Ms H], the father’s Application in a Case filed 8 May 2019, the father’s Affidavits filed 8 May 2019 and 4 July 2019, the mother’s Response filed 17 July 2019 and accompanying Affidavit, together with the orders made from 9 May 2019 onwards.
Paragraph 8 provided for a report to be obtained by the parties at their joint and equal expense.
The mother was represented between 26 July 2019 when the order was made and the date of the report namely 28 January 2020. She had attended for counselling with the children and Ms R as early as 23 August 2019.
No evidence was adduced by the mother of any enquiry made by her or her solicitor of Ms R prior to the first appointment with her on 23 August 2019 regarding whether documents had been received from the Independent Children's Lawyer as ordered.
Ms R was not challenged by the mother’s counsel at trial as to how her therapy was conducted with the mother and the children. Nevertheless, her counsel submitted in closing that Ms R “had no paperwork before she started therapy”.
The Exhibit marked “ICL 5” was tendered to the Court on 11 November 2021. It comprised the following documents:
·Correspondence from Silkwoods dated 20 August 2019 to Ms R c/- Q Hospital, Email: …
Dear [Ms R],
RE: [MAURICE, MAURCE] AND ICL – (P) ADC 4724 of 2013
ICL FOR [X] (DOB […]/07) AND [Y] (DOB […]/09)
I understand that [Mr Maurice] and [Ms Maurice] have made appointments to meet with you for the purpose of reunification counselling and that the cost of such therapy if to be shared equally between them both.
I advise that I am authorised pursuant to an order made by Judge Heffernan of the Federal Circuit Court made on 26 July 2019 to provide you with a copy of the following documents, namely:-
(a)       The family Assessment report of [Ms H] dated 25 October 2018
(b)      The Limited Issues Family Report of [Ms H] dated 13 May 2019
(c)       The Application in a Case of the father filed 8 May 2019
(d)      The father’s affidavits filed 8 May 2019 and 4 July 2019
(e)       The mother’s Response filed 17 July 2019
(f)       The mother’s accompanying affidavit filed on 17 July 2019 and
(g)The orders made by the Federal Circuit Court on 9 May 2019, 1 July 2019 and 26 July 2019.
Yours faithfully,
[ICL]
·email from Silkwoods Chambers to … dated 21 August 2019 at 9:17:50 PM, Subject “[Maurice, Maurice] and ICL- Email 1”, Attachments:
·1a Maurice Letter to Ms R;
·1 Maurice FAR – Ms H;
·2 Maurice Limited Issues FR – Ms H; and
·3 Maurice – Application in a Case,
Text:
Dear [Ms R], please refer to the enclosed letter of referral and the first of the documents I am authorised by order of the Federal Circuit Court to release to you for the purpose of reunification counselling of [X] and [Y] [Maurice] with their mother [Ms Maurice].
Kind regards,
[ICL]
·email from Silkwoods Chambers to … dated 21 August 2019 at 9:23:06 PM, Subject “[Maurice, Maurice] and ICL- Email 2”, Attachment:
·4 Maurice – Affidavit Mr Maurice,
Text:
Dear [Ms R], please find enclosed the first of two affidavits of [Mr Maurice], I am authorised to release to you as part of your reunification therapy with [X] and [Y] [Maurice].
Kind regards,
[ICL]
·email from Silkwoods Chambers to … DATED 21 August 2019 at 9:27:00 PM, Subject “[Maurice, Maurice] and ICL- Email 3”, Attachments:
·5 Maurice Affidavit Mr Maurice 4719;
·6 Maurice Response of Ms Maurice,
Text:
Dear [Ms R], please find enclosed the second affidavit of the father and also the mother’s response document.
Kind regards,
[ICL]
·email from Silkwoods Chambers to … dated 21 August 2019 at 9:31:11 PM, Subject “[Maurice, Maurice] and ICL- Email 4”, Attachment:
·7 Maurice – Affidavit Ms Maurice,
Text:
Dear [Ms R], please find enclosed the affidavit of the mother filed on 17 July 2019.
Kind regards,
[ICL]
·email from Silkwoods Chambers to … dated 21 August 2019 at 9:33:52 PM, Subject “[Maurice, Maurice] and ICL- Email 5 (final email)”, Attachment:
·8 Maurice Orders of FCC,
Text:
Dear [Ms R], please find enclosed the relevant court orders for your consideration. I advise that this is the final email of court documents to be sent to you.
Kind regards,
[ICL]
In the mother’s trial affidavit in paragraphs 148 to 156 the mother set out her evidence with respect to the attendance of the children and herself on Ms R on 27 September 2019 and 16 December 2019.
No evidence was adduced as to Ms R having undertaken the role of reunification counsellor without the material referred to in the order of Judge Heffernan of 26 July 2019 and the documents comprising Exhibit “ICL 5”.
In paragraph 148 of the mother’s trial affidavit she referred to correspondence having been received by her solicitor from the ICL confirming that Ms R received a copy of the father’s Application in a Case and affidavit filed on 8 May 2019 annexing the report of Ms C dated 8 February 2018.
No issue was raised by the mother or her solicitor with the Independent Children's Lawyer between December 2019 and the commencement of trial as to a failure by the Independent Children's Lawyer to provide documentation to Ms R.
On 11 November 2021 the Independent Children's Lawyer tendered the documents comprising Exhibit “ICL 5” without objection.
I find that the required documents were provided to Ms R prior to her commencing the reunification therapy.
I am satisfied, taking into account the contents of Ms R’s report that she had sufficient information before her prior to commencing the reunification process such that she clearly understood the issues, that she canvassed the issues with the children and the mother, and that the mother terminated the reunification process.
I find that the tenor of the report as regards the issues and concerns raised by both X and Y mirrored the issues they raised with Ms H in her first three reports. I accept her unchallenged evidence.
The sessions with the children and the mother with Ms R took place in September and December of 2019. As at the date of her report, namely 28 January 2020, she was of the view that Y was more open to further attempts at contact with her mother than was X. I find that such an opinion was well-founded, taking into account the questions raised by Ms H in her first two reports as to the basis upon which Y had expressed her views. She was not challenged as to this opinion by the mother’s counsel.
By the time of Ms H’s third report, not only had the children had two sessions of reunification counselling with their mother with Ms R, but they had also attended at the children’s contact service at Suburb O on four occasions. Two of those occasions had involved them spending time with their mother, but on the third and fourth occasions they had both refused to see her. As a result of their refusal on the third and fourth occasions, the organisation suspended service to the family on the basis that they reserved the right to do so where a child is adamant they will not participate.
The last time the children had an opportunity to express their views about the matter was during an interview with Ms H on 3 November 2021, just prior to the commencement of trial. The further report came about in circumstances where shortly prior to trial the father filed an Amended Initiating Application wherein he sought to relocate with the children to the State of Queensland. Both children told Ms H that they wanted to go to Queensland to live with their father, having visited during the July 2021 school holiday period.[18]
[18] Family Assessment Report of Ms H dated 3 November 2021.

She expressed the view that even though in the lead up to the children leaving her home on 1 May 2019 there had been poor behaviour, screaming and yelling, it was not the situation that the girls had had enough of life in her household because to her mind they had had a loving, caring and good life.
She agreed that in 2018 both girls had been telling Ms H that they wanted to spend more time with their father but she did not consider they needed that extra time. When asked if she thought the children returning to her care as proposed by her would just work easily, she said they had a solid foundation and the children had an attachment to her. When asked who she was expecting to make the children go into her care she replied “why not give it a go?”.
When it was further put to her by the ICL that she had not thought the issue through and that when she sought orders that the children go back to live with her against their wishes she had not considered the issue through their eyes, she replied that she did not think she had a choice. It was her view that they needed to come home and that where they were with the father was not a good environment. She said she was terrified for them. When it was put to her that she did not accept that the girls were happier with the father as they were saying she replied that she did not, and that it was not true.
It was her evidence in cross-examination that the children were at risk with the father because he was violent, there was excessive drinking and she was terrified for them as it could not possibly be a stable environment. I do not accept that evidence.
I find that the orders as proposed by the mother would not only traumatise both X and Y but neither child would be likely to comply with the terms of such an order. They had left their mother’s home of their own volition on 1 May 2019. I find that an order of the Court that they return to live with their mother would in a practical sense be unenforceable.
I am satisfied the orders proposed by the father, to the extent of the children living with him and spending time with their mother in accordance with their wishes is the order that would be in their best interests. I am not however convinced that the ability to move to Queensland would similarly be in their best interests.
Both children exhibited a keenness to move to live in Queensland with their father as described by them in their final interview with Ms H on 27 October 2021. I find such a move would compound the emotional estrangement between the children and their mother by adding the element of significant physical separation into the equation.
It was the position of the Independent Children's Lawyer at the conclusion of the evidence that it would not be in the best interests of the children to relocate to Queensland as proposed by the father.
She submitted that although the children currently had no effective relationship with their mother, such a move would sever any real chance of an informal relationship developing between them, perhaps by way of a casual outings. She submitted that the children should have the opportunity to contact their mother as they wish in a non-litigious setting and I accept that submission.
Although throughout Ms H’s reports X expressed increasing opposition to pursuing a relationship with her mother, it was Ms H’s view, expressed in her first three reports, that as regards Y there may have been an element of her taking her determined stand against a relationship with her mother partly to support the position of her father and her sister.
A move to Queensland, notwithstanding the various possibilities put by the father as to how time spending could occur between the children and their mother, would inevitably mean that, against a backdrop of such fractured relationships as existed at the time of trial, time spending would be unlikely to occur.
I note in particular the mother’s evidence that she has a very close and supportive group of family and friends. Her closest family member is her father.
X had complained about her maternal grandfather’s conduct towards her in terms of physically chastising her when supporting her mother in a dispute with her. I find it is extremely unlikely the children would indicate any desire to travel to South Australia to spend time with their mother, and that inevitable time spending with their grandfather during such a visit would not encourage such travel.
Likewise, taking into account the mother’s seeming lack of any desire or ability to understand the position of the children with respect to her direct and sustained criticism of their father, as well as her more inflexible parenting style, it is unlikely that she would see it as reasonable that she should have to travel to Queensland to see the children, with the associated cost and emotional distress should she attempt to do so and the children refuse to spend time with her.
Ms H was of the view that the children’s best interests would be met by remaining in South Australia, not just because of the limitations on opportunities for direct time spending between the children and their mother but also because the children are well-settled in school, happy and progressing well and X in particular was progressing well in her sporting endeavours and in her capacity as House Captain.
Although X was of the view that she could pursue those ambitions on moving to Queensland, neither X nor Y presented what Ms H considered to be convincing arguments in favour of a move to Queensland, which it should be noted came at a very late stage of the proceedings.
I find that a move to Queensland would:
·remove the children from the physical proximity of their mother;
·cause them to have to attend new schools;
·cause them to have to form and settle into new friendship groups; and
·in the case of X:
·interrupt advantages gained by success in achieving leadership positions; and
·interrupt to some extent the achieving of high level sport success.
I have no doubt that over a period of time both children could settle in and progress equally well in Queensland as in South Australia. Nevertheless, I am unable to find on the evidence that such a move would create positive benefits for either X or Y and accordingly do not consider that would be in their best interests.
s 60CC(3)(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.
I do not consider this factor to be relevant in circumstances where I have found that it is not in the best interests of the children to move to Queensland to reside in that state with their father.
s 60CC(3)(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.
I find that both parents can provide adequately for the children’s physical needs and their intellectual needs.
Both X and Y are progressing well at school, with Ms H reporting in paragraph 16 of her report dated 6 August 2021 that J School had provided feedback to her to the effect that both girls were receiving “excellent academic results as well as pleasing results in their Learning Attributes”. They were described as wonderful students and both having strong positive relationships with peer groups and teachers.
Their Semester 1 Report for 2021 indicated Y performing academically at an average standard with above average grades in Art and Visual Art and X having above average academic results across most areas.
I am satisfied that both parents value their children’s educational achievements and extracurricular activities, but I find the father has a more flexible attitude to the children pursuing extracurricular and sporting activities in which they show a particular interest or aptitude.
I find that both parties have struggled to provide for the emotional needs of X and Y. They have both embroiled the children in their long-running post-separation relationship dispute.
Having made that finding, I find however that the father has had a greater capacity to both identify and provide support for the children’s emotional needs, in circumstances where both children have gravitated towards him for emotional support.
Notwithstanding his cavalier approach to having the children attend upon Ms C for therapeutic assistance during 2017 and the early part of 2018, in doing so he had identified the need the children had for therapeutic support as opposed to the mother, who on her own evidence had not made any more appointments for the children after the latter part of 2016 and had determined, notwithstanding acknowledging X’s escalating distressed behaviours, that she would manage those issues on her own and did not need assistance either for the children or for herself in doing so.
In addition, it was the mother who terminated the services of Ms R with respect to the reunification counselling she was conducting, in circumstances where from the mother’s point of view it was not moving at a pace she considered satisfactory and she was not prepared to stay the course, as recommended by Ms R, or obtain the assistance for herself with respect to her parenting skills that both Ms H and Ms R considered would be of great benefit and assistance.
I am satisfied that the children’s emotional needs are best met by residing with their father.
Having made that finding however it will be extremely important for the father to resist maintaining the “us against her” dynamic that I find was evident in his household both prior to the children coming to live with him fulltime on 1 May 2019 and continuing to the time of trial.
There is no doubt the children have required the loving emotional security he has provided to both children. Nevertheless, I have already referred to the possibility, suggested by Ms H in her reports, that Y’s relationship with her mother was not fractured to the extent of X’s and that Y may find it difficult to express a positive view about time spending or communication with her mother if her home environment was such that she felt she would be going against the approval and/or wishes of her father and/or X.
In paragraph 14 of Ms H’s report of 6 August 2021 she referred to Y confirming that she had felt “a little bit” guilty because she felt X and her father were a bit disappointed in her for attending for the outing with her mother and Ms N in July 2020. She did however express to Ms H, as reported in the same paragraph, that she felt that if she wanted to spend direct time with her mother both her father and X would support her.
It is important that no pressure is placed on either child by the father in the event that they express a wish to communicate with or spend time with their mother.
s 60CC(3)(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.
and
s 60CC(3)(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.
I do not consider that the considerations referred to in s 60CC3(g) and (h) of the Act would advance this matter further.
s 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
At the time of separation the children remained primarily in the care of the mother with the agreement of the father. It was clear however that he loved the children dearly and was determined to remain a significant part of their lives.
There is little doubt that both the father and the mother love X and Y, but the mother struggled throughout cross-examination to acknowledge anything in her behaviour that could have led X and Y to feel that:
·she was attempting to minimise their time with their father;
·she was constantly critical of their father despite their expressed dislike of that criticism; or
·her style of parenting was rigid, inflexible and unresponsive to their needs and concerns.
Notwithstanding the somewhat overbearing and dogmatic presentation of the father in cross‑examination at times, I find that he was sympathetic to the children’s needs and supportive of them, but not to the extent of attempting to alienate them from the mother. I find his presentation and approach to issues was to a great extent reflective of his level of frustration arising from the mother’s criticism of him and her attempts to frustrate the children’s time with him over a long period.
I accept the evidence of the father that in the face of the children’s complaints about:
·their mother’s inflexibility;
·her reluctance to facilitate their time and communication with him that they both sought and expressed to her;
·her physical conduct towards them during disputes including holding X down on the bed to make her dress in her sporting clothes, physically trying to adjust the length of her school skirt and physically trying to remove a piece of paper from X’s hands; and
·allowing her father to physically discipline X and not recognising X’s distress,
he did his best to assist them, including facilitating them having therapeutic counselling with Ms C for a period of some ten months.
The mother’s evidence with respect to her attitude to the children was suggestive of a lack of emotional attunement with them such that she was unable to provide for them in a manner that facilitated them feeling protected and emotionally safe in her care.
I find that they found this emotional safety in the home of their father and appreciated the help that he was trying to provide to them.
I find further that the father had no respect or affection for the mother but likewise was not opposed to the children having a relationship with her and nor did he attempt to dissuade or influence them against doing so.
I find however that it was the father who raised the issue of potentially moving to Queensland with the children, possibly as late as the July school holidays in 2021 just prior to trial. I find he was cognisant but unconcerned about the fact that such a move would inevitably make the repairing of the relationship between the children and their mother even more difficult. I base that finding on the matters raised by both X and Y in their discussions with Ms H as reported on in her fourth report dated 3 November 2021.
It may well be that both children, and in particular Y, perceived that spending time with their mother would divide their loyalties. I find however that the breakdown in the mother’s relationship with the children was primarily attributable to her incapacity to understand that a significant responsibility of parenthood is to ensure that children are not embroiled in one parent’s narrative of a toxic level of dislike and condemnation of their other parent.
I find the mother failed in her evidence to convey any real level of cognition in relation to the concerns about her parenting style as expressed by X and Y to Ms H, Ms R and to the worker at Children’s Contact Service B and, in particular in the case of Y, to the school counsellor at P School.
When asked what confidence she would have in the children seeing their father if they were back in her care she said that she thought it would take she and the children six months to reconnect. When further asked if that meant there should be no time spent between the children and their father for that period she said she had heard from a therapist friend that it was a good idea.
When the mother was asked by the Court, following upon that question, whether she understood that if the Court ordered what she was seeking it would be ignoring the children’s expressed wishes to various experts over a period of three and a half years, she agreed that was the case. She said that it should be so for the children’s safety, stability and nurturing of their relationship with her and that a period of no time spending between the children and their father should extend for at least the first six months after they returned to her care.
I remained concerned at the conclusion of the parties’ evidence as to the mother’s comprehension of the children’s emotional wellbeing and stability and her attitude to the responsibilities of parenthood. I find the father understood those issues more clearly and was better equipped overall to parent X and Y.
s 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
and
s 60CC(3)(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.
Taking into account the findings that I have made in my consideration of s 60CC(2)(b) of the Act and where there are no family violence orders in place I do not consider further discussion of these factors will advance this matter further.
s 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Proceedings had as at the date of trial been on foot in this matter for some eight years.
I find that the children are now both of an age and a level of maturity to reasonably expect that the Court will listen carefully to their independent views and perceptions expressed to the relevant experts and accord them the respect to which they should be entitled.
Nothing in the evidence of either of the parties leads me to a finding that the children are or will be prevented from pursuing a relationship with their mother if they choose to do so.
I find that they should not be exposed to further efforts to reconcile their differences with their mother until they express a wish to do so, and I find that the father will support any such expression.
I find that the orders I intend to make are orders that are in the best interests of X and Y. I hope that both parents can accept that the time to end a toxic post-separation relationship has come. I find that a failure to do so may result in neither X nor Y having the opportunity to forge strong and supportive relationships with both of their parents, such that the benefits of a meaningful relationship with both of their parents become available to them in the future.
I am hopeful, particularly taking into account X and Y’s ages, that both parents will accept the orders and refrain from any further proceedings.
Conclusion
I intend to order that X and Y live with their father.
I do not intend to order that the parties share parental responsibility for the children. I find on the evidence that it would not be in the best interests of X and Y for their parents to share that responsibility, taking into account the toxic post-separation relationship between the parents, their almost total lack of communication, the complete lack of regard and respect between them and each for the other of them, and the fact that they have been involved in litigation at various times over a period of eight years to the time of trial.[22]
[22] s 61DA(4) of the Act.
One of the major issues that arose during the course of the litigation was the question of which school each of X and Y should attend. That was a major long-term issue in relation to both children and the parties required the Court to determine that issue.

I am not satisfied that either of the parents, but in particular the mother, exhibited any ability to be able to consult with the other of them in relation to a decision to be made about a major long-term issue in relation to either X or Y or make a genuine effort to come to a joint decision about that issue.[23]
[23] ss 65DAC(1), (2) and (3) of the Act.
In circumstances where I am not satisfied that an order for equal shared parental responsibility is in the best interests of either X or Y it is not necessary to consider the provisions of s 65DAA of the Act.
There will of course also be an order for the children to be able to spend time with their mother and communicate with her as they may reasonably request in consultation with both of their parents.
I intend to order that the mother be permitted to continue to forward appropriate written communication to the children on special occasions and that the father ensure that the children receive the communication and use his best endeavours to request the children to respond appropriately to their mother.
I also intend to make orders ensuring that the mother receive advice from time to time as to the children’s progress at school and any serious medical conditions or accidents from which they may suffer or in respect of which they may be involved.
I find in the circumstances of this case that there will be no positive benefit to be derived by either X or Y by the Court attempting to craft orders to foster their relationship with their mother.[24]
[24] McCall & Clark at [122].
For those reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding two hundred and eighty-three (283) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 24 June 2022

File number(s):	ADC 4724 of 2013
Judgment of:	MEAD J
Date of judgment:	24 June 2022
Catchwords:	FAMILY LAW – CHILDREN – Proceedings for parenting and property settlement originally commenced in 2013 – Final parenting orders and property settlement orders made by consent in December 2015 – Various Contravention Applications filed by both parties within six months of final orders – Children exposed to high conflict between the parents post-separation – Current parenting proceedings commenced by the father on 3 April 2018 – Children primarily residing with the mother at that time – Children moved to live with the father on 1 May 2019 – Children aged 14 and 12 years at trial – Minimal supervised interaction between the children and the mother after 1 May 2019 – No meaningful relationship between the children and the mother at the time of trial – Mother’s capacity to meet the children’s emotional needs very limited – Children’s views balanced and illustrated by the mother’s evidence – Children’s wishes given significant weight – Time spending and communication between the children and the mother ordered only at the children’s request and in accordance with their wishes – Father’s belated application to relocate to Queensland with the children refused
Legislation:	Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DA, 65DAA, 65DAC
Cases cited:	Mazsorski & Albright (2007) 37 FamLR 518 McCall & Clark (2009) FLC 93-405
Division:	Division 1 First Instance
Number of paragraphs:	283
Date of hearing:	8-12 November 2021 and 21 January 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Pangallo
Solicitor for the Applicant:	Norman Waterhouse Lawyers
Counsel for the Respondent:	Ms Lee
Solicitor for the Respondent:	Georgina Parker Lawyers
The Independent Children's Lawyer:	Ms Olsson
Solicitor for the Independent Children's Lawyer:	Silkwoods

ADC 4724 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MAURICE Applicant
AND:	MS MAURICE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	MEAD J
DATE OF ORDER:	24 June 2022