WATTS & LORRECK - [2019] FamCA 615

FAMILY COURT OF AUSTRALIA

WATTS & LORRECK

[2019] FamCA 615

FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the children – Relocation – Meaningful relationship – Where the father seeks orders that the children remain living with him in Canberra – Where the mother seeks that the children return to live with her in B Town – Where the Independent Children’s Lawyer seeks orders that the children live with the father and spend time with the mother – Where there has been a protracted history of litigation between the parties – Where the children are of an age and maturity that the view’s they have expressed are given significant weight –Where the mother alleges that the father has adversely impacted upon the mother’s relationship with the children – Where the Court finds it is in the best interests of the children to live with the father – Orders made in accordance with those sought by the Independent Children’s Lawyer for the children to live with the father in Canberra and spend time with the mother.

Family Law Act 1975 (Cth), s 43, 60B, 60CA, 60CC, 65DA, 65DAC, 65DAA.
Evidence Act 1995 (Cth), s 140.

Cotton & Cotton (1983) FLC 91-330
Dundas & Blake [2013] FamCAFC 133
Finton & Kimble [2017] FCWA 106
Jurchenko & Foster [2014] FamCAFC 127
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Sigley v Evor (2011) 44 Fam LR 439
Stott & Holgar and Anor [2017] FamCAFC 152
VR & RR (2002) 29 FamLR 39

APPLICANT:

Mr Watts

RESPONDENT:

Ms Lorreck

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid ACT

FILE NUMBER:

CAC

2009

DATE DELIVERED:

4 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

25-28 March 2019

REPRESENTATION

THE APPLICANT APPEARING IN PERSON:

Mr Watts

COUNSEL FOR THE RESPONDENT:

Mr Moffett

SOLICITOR FOR THE RESPONDENT:

Dillon-Smith Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor of Legal Aid ACT

Orders

That all previous parenting orders be discharged.
That Mr Watts (“the father”), have sole parental responsibility for X born … 2002 and Y born … 2007 (“X and Y”).
To avoid doubt, sole responsibility for the purpose of Order (2) includes: responsibility for making decisions as to whether the children engage in overseas travel; and the circumstances in which that travel is undertaken.
That X and Y live with their father.
Notwithstanding Order (2), the father shall advise Ms Lorreck (“the mother”), of all contact details for any treating health professionals and school and college contact details for X and Y.
These Orders shall serve as an authority to any health professional or educational facility that X or Y may attend to provide information to either parent on that parent's request.
That X spend time with and communicate with his mother in accordance with his wishes.
That until Y attains the age of 16 years, he spend time with his mother as agreed between the parties and at the location agreed between the parties and, in the absence of agreement being reached, Y shall spend time with his mother as follows:
(a)During school term time for a maximum of two occasions for up to seven consecutive days in Canberra, provided that the mother provides the father with 14 days written notice of her intention to spend this time in Canberra;
(b)If the mother is spending time with Y in accordance with Order 8(a), she is to ensure that he attends all his school and extra-curricular activities occurring during this time;
(c)The mother shall be liable for all costs associated with spending time in accordance with Order 8(a);
(d)For one half of the ACT gazetted school holidays, being the first half in even numbered years and the second half in odd numbered years;
(e)For the purpose of Order 8(d), the father shall be responsible for the costs of the flights for the Term 2 and Term 4 school holidays and the mother shall be responsible for the cost of the flights for the Term 1 and Term 3 school holidays; and
(f)The mother be at liberty to communicate with Y, each Tuesday and Sunday between 7:00pm and 7:30pm, when he is not in her care. The father is to ensure that Y is available to speak to his mother in private.
That once Y attains the age of 16 years, he shall spend time with and communicate with his mother in accordance with his wishes.
The father shall facilitate both X and Y communicating with their mother at all reasonable times when they are in his care, including ensuring that mobile phones are charged and Skype or FaceTime is available.
Both parents are to speak respectfully of each other in the presence or hearing of X or Y and neither parent will allow any other third party to speak disrespectfully of the other parent in the presence or hearing of X or Y.
That neither parent expose X or Y to family violence including verbal arguments.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 23 of 2009

Mr Watts

Applicant

And

Ms Lorreck

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an Initiating Application in a Case filed on 26 July 2016 and a Contravention Application filed on 21 March 2019 by Mr Watts (“the father”). At the hearing, the father indicated that he did not press for the orders he sought in his Contravention Application. The father seeks final parenting orders relating to the parties’ children X, born in 2002 and who is currently aged 17 years, and Y, born in 2007 and who is currently aged 12 years (collectively “the children”).
The children currently reside in Canberra with the father and Ms Watts (“the step mother”). Ms Lorreck (“the mother”) currently resides in B Town.
In essence, the father seeks Orders that the children live with him in Canberra, the parents share parental responsibility and the children spend time in B Town and communicate with the mother according to their wishes.
The mother seeks Orders that she continue to have sole parental responsibility for the children in accordance with Orders made on 2 September 2011 and that they live with her in B Town in accordance with Orders made by the Full Court on 7 June 2012. The mother proposes that the children spend supervised time with the father during school holidays and each month for seven (7) days upon notice to the mother. In the alternative, the mother seeks Orders that she has sole parental responsibility and that the children live with her in Canberra.

Background to dispute

In 1970, the father was born. He is currently aged 48 years.
In 1972, the mother was born. She is currently aged 46 years.
In 1991, the mother and father met and commenced a relationship when the parties were living in CC Town. At that time the father was a member of the public service and continues to work in that capacity.
In 1992, the parties began living together.
In 1994, the parties married.
In 2002, X was born.
In 2007, Y was born.
The parties separated on 27 November 2008 and were divorced in 2011. At the time of the parties’ separation they were living in the suburb of Suburb T in Canberra. Prior to living in Canberra the parties had lived in Queensland and New South Wales.
There has been extensive litigation between the parties in the period since their separation.
That litigation history up until July 2016 is accurately summarised in the notations made by Judge Neville on 22 July 2016 as follows:
The principal judgement in the significant litigation history between these two parties is that of Judge Brewster [2011] FMCAfam 928. At the time of that four-day trial, the children were then aged 9 (X) and 4 (Y). ... On appeal, the Full Court permitted the Mother to relocate to Far North Queensland; The Full Court provided, among other things for the children to spend time with their father during school holidays; In addition, there have been a series of contests regarding, among other things, the children’s time with the Father during school holidays, particularly in relation to overseas travel. Indeed, there has been litigation in 2011, 2012, 2013 and 2015 in this Court. Consistently, the Mother has appealed each decision, being successful on only the first occasion in relation to the costs of travel between Canberra and B Town. Suffice to say that the parenting relationship is severely strained. The litigation history seems also to confirm that the relocation allowed by the Full Court has ultimately led to the exacerbation of all existing and on-going parenting difficulties
[Citations omitted]
The litigation history in respect to the period subsequent to July 2016 is summarised below in order of relevant date sequence.
As noted, pursuant to the relevant Court Orders on 7 June 2012, in September 2012 the mother and children moved to B Town. The children were then aged 12 years and 5 years.
In 2015, the father and step mother married. There is one child of this relationship, Z (“Z”) born in 2013 and who is currently aged six years. The step mother also has a daughter from a previous relationship, W (“W”) born in 2007 and who is currently aged 12 years.
In June 2016, the children spent time with their father in Canberra and did not return to B Town after the holidays ended. On 26 July 2016, the mother filed a Recovery Application.
In December 2017, the children again remained with the father in Canberra after spending time with the father for school holidays.
On 26 December 2017, changeover was to occur. The mother contends that the children were due to fly back to her in B Town on that day.
On 18 December 2017, during the time that the children were staying with the father, the father filed an Application in a Case seeking interim Orders for the children to live in Canberra and be enrolled in a school in Canberra. The mother contends that Application was not served upon her until 22 December 2017. The mother asserts that in the absence of Orders being made to vary the Court Orders, that were applicable to the spend time arrangements in December 2017, the father acted irresponsibly and, specifically, in breach of the applicable Orders in not facilitating the children’s time including failing to purchase return plane tickets from Canberra to B Town.
On 5 January 2018, the mother filled an Application in a Case for the recovery of the children from the father. Both applications were heard on 12 January 2018 and Gill J made Orders permitting the father to enrol the children in school in Canberra. His Honour also made an order for the father to have sole parental responsibility. The mother successfully appealed that latter aspect of the order of Gill J.
The Full Court determined that the trial judge erred in making an Order for sole parental responsibility when it had not been fully agitated at the hearing. The Full Court made Orders that provided for the children to remain in Canberra and remitted the matter back to the Family Court to be heard by a judge other than Gill J who was the initial trial judge.
An application for interim Orders was heard by La Poer Trench J in September 2018. His Honour made interim Orders that the children remain living in Canberra with their father.
The father and the Independent Children’s Lawyer contend that the communication between the parties and between the mother and the children has been problematic. For reasons set out below I accept that to be the case.
The father and Independent Children’s Lawyer also contend that the children have consistently expressed the view that they wish to remain in Canberra and do not want to be separated. For reasons which I set out below, I also accept that to be the case.
As previously noted, the father continues to work in the public service and, as at the date of swearing her Affidavit on 21 February 2019, the mother stated that she is self-employed as a professional educator and operates a business. The mother stated that she is temporarily in receipt of a Newstart Allowance prior to applying for Austudy which she intends to utilise to complete a Masters Degree.

Applications

Orders sought by the father

The father sought Orders be made in accordance with his Initiating Application filed 30 June 2016, as follows:
1. The children, X and Y reside permanently with the applicant father, Mr Watts at J Street, Suburb K, Canberra, ACT.
2. The respondent mother, Ms Lorreck allow the children to remove their property from the respondent mothers residence in B Town should they choose to do so.
3. The parents, Mr Watts and Ms Lorreck share parental responsibility for the children.
4. The children freely communicate with the mother via their own electronic communications devices or by written letter as they choose.
5. The children, by their own decision, travel to B Town to visit the respondent mother during school holiday periods.

Orders sought by the mother

The Orders sought by the mother are set out in her case outline document, (marked ‘Exhibit 1’ in these proceedings), as follows:
1. That all previous orders be discharged.
2. That Y, born … 2017 X , born … 2002 live with the Mother in B Town and that she has sole parental responsibility for the children.
2. [sic] If the Mother were to reside in Canberra - that the Children X, born … 2002 and Y, born … 2007 live with the Mother and that she have sole parental responsibility with respect to those children.
3. Both parents will respect X’s wishes.
4. That the Father have contact with the children supervised at all times;
a. During Queensland public school holiday's:
i. The entire Easter holidays in odd numbered years;
ii. The entire winter holidays' each year;
iii. The entire Spring Holiday's each year;
iv. The first half of the summer holiday's in odd numbered years from 2019;
v. The second half of the summer holiday’s in even numbered years from 2020
b. During school terms:
i. Up to seven consecutive days each month in B Town, provided that the Father:
1. Gives the mother 14 days written notice of his intention to spend such time;
2. Causes the child to attend their usual school and extra-curricular activities.
5. For the purposes of Order 4 (a) above:
a. It is deemed that the Queensland public school holidays:
i. Commence on the day following the last day of school term;
ii. End on the day preceding then day the children are due to return to school; and
iii. Reach the midpoint at 12 noon on the day between such days.
6. In the event if the child is living or spending time with the mother at the following times, the father may spend time with the children as follows:
a. For Father' s Day from 9:00am to 6.00pm;
b. For the child' s birthday;
i. If falling in a school day - from after school until 6:00pm; or
ii. If falling on a weekend or holiday - from 9:00 am to 2:00 pm.
c. For the father's birthday;
i. If falling on a school day - from after school until 6:00pm;
ii. If falling on a weekend or holiday - from 9:00 am to 6:00pm
7. In the event the children are living or spending time with the father at the following times, the mother may spend time with the children as follows;
a. For Mother ' s Day from 9:00 am to 6:00 pm;
b. For each child's birthday:
i. If falling on a school day - from after school until 6.00 pm; or
ii. If falling on a weekend or holiday - from 9.00 am to 2.00 pm.
c. For the mother's birthday:
i. if falling on a school day - from after school until 6.00pm
ii. if falling on a weekend or holiday - from 9.00 am to 6.00 pm
In the event the Mother were to reside in Canberra then
8. The Children X, born … 2002 and Y, born … 2007 live with the Mother and that she have so parental responsibility with respect to those children.
9. The father have contact with the children at all times supervised:
a. Each alternate weekend from after school/college on Friday until the commencement of school on Monday.
b. For one half of all school holidays being the first half of holidays falling or commencing in even numbered years and for the second half of the holidays falling or commencing in odd numbered years
10. The mother and the father may communicate with the children when they are not in the parents care between the hours of 7:00 pm and 8:00 pm. with the other parent to facilitate that time, including by the provision of audio visual facilities to enable that to take place during those periods, and shall otherwise encourage the children to spend that time talking with the other parent.
10. When the children are spending time talking with the other parent in accordance with these orders, the parent with whom they are living is to provide the children with privacy to engage in a conversation with the other parent by not being physically present during that convocation and by taking all reasonable steps to ensure that other persons are not present during the communication with the other parent.
11. For each two-year period - beginning 2019 the Mother will book and pay for the return airfare with Qantas for the child (Y) to travel from B Town to Canberra and from Canberra to B Town for the winter holidays in odd numbered years.
a. The father will book and pay for all other return airfares with Qantas and pay the unaccompanied minor fee for the child to travel from B Town to Canberra and Canberra to B Town.
b. For each holiday period each arena will notify the other parent by sums or email that the child has boarded the plane for the child to travel from B Town to Canberra or from Canberra to B Town as the case may be.
c. The mother may at her expense accompany the child on any of the air flights and if the mother does so she will notify the father of this and changeover will occur at the Canberra Airport.
12. The parties are to engage in therapeutic Family counselling with the children with a person agreed between the parties and if no agreement by a person nominated by the ICL.
13. Neither parent will say unkind things about the other parent or family members in the presence of or hearing of the children, nor cause or allow anybody else to do so.
14. The father will refrain from attending upon the home of the mother in B Town or any other place the Mother may reside

Orders sought by the Independent Children’s Lawyers

The Orders sought by the Independent Children’s Lawyer are set out in the Independent Children’s Lawyers’ minute of order, (marked ‘Exhibit 2’ in these proceedings), as follows:
1. That all previous parenting orders be discharged.
2. That the Father, Mr Watts have sole parental responsibility for X … 2002 and Y born … 2007 ( X and Y)
3. That X and Y live with their Father.
4. Notwithstanding Order [2] the Father shall advise the Mother of all contact details for any treating health professionals and school and college contact details for X and Y.
5. These Orders shall serve as an authority to any health professional or educational facility that Y or X may attend to provide information to either parent on that parent's request.
6. That X spend time with and communicate with his Mother in accordance with his wishes.
7. That until Y attains the age of 16y he spend time with his Mother;
7.1. During school term time for a maximum of two occasions for up to seven consecutive days in Canberra provided that the Mother provides the Father with 14 days written notice of her intention to spend this time in Canberra.
7.2. If the Mother is spending time with Y as per Order 7.1 she is to ensure that he attends all his school and extra-curricular activities occurring at this time.
7.3. The Mother shall be liable for all costs associated with spending time in accordance with Order 7.1
7.4. For one half of the ACT gazetted school holidays being the first half in even numbered year and the second half in odd numbered years.
7.5. For the purpose of Order 7.4 the Father shall be responsible for the costs of the flights for the Term 2 and Term 4 school holidays and the Mother shall be responsible for the cost of the flights for the Term 1 and Term 3 school holidays.
7.6. The Mother to communicate with Y when he is not in her care each Tuesday and Sunday between 7:00pm and 7:30pm. The Father is to ensure that Y is available to speak to his Mother in private.
8. One Y attains the age of 16y he shall spend time with and communicate with his Mother in accordance with his wishes.
9. The Father shall facilitate both X and Y communicating with their Mother at all reasonable times when they are in his care, including ensuring that mobile phones are charged and Skype or face time is available.
10. Both parents to speak respectfully of each other in the presence or hearing of X or Y and neither parent will allow any other third party to speak disrespectfully of the other parent in the presence or hearing of X or Y.
11. Neither parent will expose X or Y to family violence including verbal arguments.

Evidence

The father relied upon the following documentary evidence:
a)Affidavit of Mr Watts filed 6 March 2019;
b)Affidavit of Mr Watts filed 24 January 2019;
c)Affidavit of Ms Watts filed 25 January 2019; and
d)Affidavit of Mr I Watts filed 24 January 2019.
The mother relied upon her Affidavit filed 22 February 2019.
The Independent Children’s Lawyer relied upon the following documentary evidence:
a)Family Report of Ms D dated 4 January 2018
b)Family Report of Ms H dated 31 May 2018; an
c)Limited Issues Report of Family Consultant L dated 05 August 2016.
The following exhibits were relied upon:
a)Respondent mother’s case outline (‘Exhibit 1’);
b)Independent Children’s Lawyer’s case outline and attached minute of order (‘Exhibit 2’);
c)Family Report of Ms H dated 31 May 2018 (‘Exhibit 3’);
d)Family Report of Ms D dated 4 January 2018 (‘Exhibit 4’);
e)School report for Y Semester 2, 2018 (‘Exhibit 5’);
f)First Email concerning Y attending counselling dated 6 March 2018 (‘Exhibit 6’);
g)Second email from Ms Lorreck regarding counselling dated 26 March 2018 (‘Exhibit 7’);
h)Counselling notes (‘Exhibit 8’);
i)Progress report for X for Semester 1, 2019 (‘Exhibit 9’);
j)Email tender bundle (‘Exhibit 10’);
k)Letter from Mr M, from Legal Aid, to parties dated 3 January 2018 (‘Exhibit 11’);
l)G School academic report for Y 2017 (‘Exhibit 12’);
m)Email from Ms Lorreck to Canberra Case Coordinator dated 27 March 2019 (’Exhibit 13’);
n)Mental health plan for Y dated 2 February 2018 (‘Exhibit 14’); and
o)Mental health plan for X dated 2 February 2018 (‘Exhibit 15’).

The law – concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) of the Act sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act), and to protect them from family violence (s 43(1)(ca) of the Act).

The presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake [2013] FamCAFC 133 at [61], the Full Court held that section 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) 29 FamLR 39 at [45], the Full Court said:
…in our view it is clear from the legislative scheme that any intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
The mother contends that the history of this case provides evidence that the parties are not able to make decisions together and that shared parental responsibility would further the conflict between the parents and adversely affect the children.
At paragraph 129 of her Affidavit the mother stated:
There is no sign of the father being willing to co-operate with me regarding arrangements for our children. Outstanding resentment arising from our relationship history usually comes to the surface and we argue.
The father is of a similar view stating, at paragraph 33 of his Affidavit dated 24 January 2019, that the mother:
…attempts to dominate and control me, by constantly refusing to negotiate or cooperate with me in anyway with regards to the children. This has seen her endlessly apply to the courts, or act in a manner that forces me to go to the courts for a resolution. She also constantly threatens me with further court actions. Ms Lorreck refuses to engage in any form of negotiated outcome
As result of the mother’s view of the impact of the ongoing parental conflict, the mother contends, as stated in ‘Exhibit 1’at page 5, that:
If the Mother is allowed to live with the children in B Town then the mother would have sole parental responsibility for both children. Alternatively the mother seeks an order that in the event that she lives in B Town with Y that she have sole PR for Y.
For reasons which I set out below, I am concerned about the parties capacity to effectively communicate in terms of the requirements of ss 65DAC(2) and (3) of the Act. In those circumstances, I find that it would not be in the best interests of the children for the parties to have equal shared parental responsibility.
As the Orders that I make will provide for the children to continue living in Canberra, I will make Orders for the father to have sole parental responsibility. In making that Order I note, however, that, at paragraph 14 of his Affidavit dated 24 January 2019, the father states that he has not placed any limits on the mother communicating with the children’s school about their progress and that he does not intend to place any such restriction on her ability to communicate with the school in the future. In circumstances where the children are well settled in their school, it is unlikely that an issue will arise as to any change in their school.
Further, it was not disputed that, fortunately, the children are in good health and neither have any long-term illnesses which require ongoing treatment or therapy. If they become ill in Canberra, they both attend a general practitioner in Canberra who has a long association with the family. The father was not challenged on his evidence that he supervises and assists Y to take medication in the event that it may be prescribed by his general practitioner. Equally, the father is content for the mother to take the children to her general practitioner in the event of them becoming ill in her care when in B Town and administering such medication as is prescribed to treat any illness that may arise. In those circumstances, it is not expected that a decision will be required in respect to a long-term health issues impacting upon the children.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply and the task before the Court is to make parenting Orders that the Court considers to be in the best interests of the children.

Primary considerations

Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must have regard to the best interests of the children as the paramount consideration. This is also confirmed in section 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: section 60CC(2)(b) of the Act.

Meaningful relationship

As stated above, section 60CC(2)(a) of the Act requires me to consider the importance of the children having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”
In McCall & Clark (2009) 41 Fam LR 483 at [122], the Full Court said:
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.
In Finton & Kimble [2017] FCWA 106 at [37], Walters J said:
…the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
[Citations omitted]
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster [2014] FamCAFC 127 at [123], where the Court noted that:
... [Having] a "meaningful relationship" with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child's best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at [78,252], Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
The mother alleges that the father has actively undermined and worked to damage her relationship with the children. In those circumstance, the mother contends that it is in the best interests of the children to have a meaningful, relationship with the father, but only in the event the father does not continue to actively undermine the children's relationship with the mother.
The mother acknowledges that X who is 17 does not want to live with her. She contends this is a result of the father undermining X’s relationship with the mother. In those circumstances, she seeks an order for Y to be removed from the fathers care, so that the father, as alleged, will not be successful in further damaging the mother’s relationship with Y.
In that context, as stated in ‘Exhibit 1’ at page 5:
The mother says that if Y is allowed to live with the Father, the Father will actively irretrievably damage her relationship with Y, and she will no longer have a relationship with him.
I accept and respectfully agree with the submission of the Independent Children’s Lawyer, that it would assist both X and Y to have the benefit of a relationship with both of their parents if both parents could manage the ongoing conflict between them.
Regrettably, the history of litigation in this matter demonstrates that they do not have that capacity.

Issue of risk

The second primary consideration set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent. The Court has confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm: Stott & Holgar and Anor [2017] FamCAFC 152 at [38].
Family Consultant, Ms H, in her Family Report dated 31 May 2018, reports that X stated in his interview with her on 30 April 2018 that his mother:
…isn’t friendly, she always yells and swears at us all day and night and sort of often will hit us. I’m afraid of what will happen next time [time she hits me] – I think I will be left a mark, I will be thinking about it all night [after she hits me]. She usually hits me around the arms and tries to pull my hair, she scratched me – sometimes shall hold me down and hit me.
This matter has a history of each of the parties reporting matters of concern in respect to the other party’s parenting to state and territory child protection services.
This includes the father reporting the mother to child protection services in 2013, 2015 and 2016 due to the father’s allegations that the mother had assaulted the children. The father has also reported the mother to child protection services in 2017 for what he alleges is a similar reason. The mother similarly reported the father to child protection services in 2016 and 2017 in circumstances where she alleged that the father had wrongfully retained the children in his care in breach of Orders made on 7 June 2012. The mother made a further report to child protection services in April 2018, in circumstances where she contends the children were not facilitated to have telephone communication with her at a time when the father travelled overseas and the children were being cared for by their step mother.
Both parties acknowledge that child protection services are no longer involved with the family.
While each of the parties contended that the children were potentially at risk of physical harm as a result of excessive discipline being administered, I am not satisfied that is the case. The children are now 13 and 17 years old and I respectfully agree with and adopt the submissions of the Independent Children’s Lawyer that the children are not at risk of physical harm in the care of either of the parties.
Each of the parties contend that the other has verbally abused the children. The children have reported to the Family Consultants that have been engaged in these proceedings that they have been the subject of shouting and verbal abuse by their mother. In her interview with Ms H on 30 April 2018, the mother alleged that the children have, on occasions, yelled at her so loudly that neighbours have intervened.
In the context of tensions arising from the ongoing disputation between the parties, I accept that it is likely that there has been unseemly communication between the mother and the children, however, the evidence is not such that I am in a position to determine, with a sufficient degree of precision, the circumstances in which that occurred; the intensity to which the children and in particular X and his mother engaged in shouting at each other; nor am I in a position to determine the words that were actually used. While no doubt, such exchanges were distressing, the prospect of such further exchanges, while unfortunate, does not present an unacceptable risk of harm to the children such that it impacts upon the Orders that I make in these proceedings.
The more significant issue to address in these proceedings is the emotional and psychological risk to the children of continuing to be caught in the middle of the parties saga of seemingly endless disputation and litigation.
At paragraph 195 of her report, Ms H states:
Both the children present as being aware of their parents’ dispute and expressed a desire for the litigation process to conclude. The continual litigation between Mr Watts and Ms Lorreck is likely to have had a destabilising effect upon the children and potentially creates obstacles for them meeting their developmental milestones. The reports of the children displaying anti-social behaviour and X struggling academically could be symptomatic of the trauma they have experienced due to being exposed to parental conflict.
At paragraph 192 of her report, Ms H further noted that:
During the children’s observation with Ms Lorreck, X’s behaviour towards Ms Lorreck bordered on aggressive. If X and Y, have been abused by Ms Lorreck, as they and Mr Watts allege, then their challenging behaviour is perhaps unsurprising. Equally though, the children’s challenging behaviour could be a manifestation of the trauma they have experienced due to being exposed to the conflict between their parents.
During the course of the proceedings, I noted, what I described as some zealotry in the manner in which both the father and the mother presented. Both were self-opinionated and uncompromising. I can well understand that the children would find dealing with these characteristics to be challenging The time has come for both parents to take stock of the manner in which they have behaved and to let their children get on with their lives liberated from the parental conflict that has dominated most of their childhood.
As noted by the Independent Children’s Lawyer, there have been allegations that the children have been exposed to verbal arguments when in the care of their mother and X has alleged that his mother has hit him. The mother denies that allegation.
The mother contends that the Orders proposed by her will protect the children from psychological harm caused by the father actively undermining and damaging the children's relationship with their mother.

The mother contends that there is no longer a risk of family violence as the parties are no longer living together. She contends, however, that the father is encouraging X to act aggressively towards her and that, as a result, his influence on the children is not in their best interests.
Having regard to the totality of evidence that has been presented in this matter, I respectfully agree with the submission of the Independent Children’s Lawyer, that exposure to the parents ongoing conflict poses a risk to the children’s emotional and psychological health.

Additional considerations

Section 60CC(3) of the Act sets out additional considerations in determining what is in a child’s best interests. Those considerations include:
Sub-section (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.
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
Sub-section (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; and
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
During the course of their litigation, the parties have filed a significant number of Affidavits. They have both been unrepresented for a significant portion of the proceedings, although, as noted, the mother was ably represented in the proceedings before me. In circumstances where the parties have been unrepresented, I have given some latitude in terms of both parties referring to evidence contained in a large number of Affidavits that have been filed in respect to earlier proceedings. Where specific reference has been made, I have had regard to that evidence, however, much of it consists of the parties making tit for tat adverse imputations against the other. This has been most relevant for providing background as to how the parties’ relationship has deteriorated to the current sad state, including how it has impacted upon them personally and, most relevantly, for these proceedings, how it has adversely impacted upon the children’s emotional and psychological well-being. To the extent to which I have not referred to that evidence, it can be assumed that I have not regarded that evidence as being relevant to the issues that I am required to determine in these proceedings or, more accurately, sufficiently relevant to influence the decision that I have made.
My consideration of the facts and circumstances which I consider to be most relevant to the task that the legislation requires me to perform, that is, to determine Orders that are in the best interests of the children are set out in the immediately following paragraphs.

Sub-section (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.

In his interview with Ms H on 30 April 2018, for the purpose of her preparing her report dated 31 May 2018, X stated that he really did not “enjoy being with [his mother] at all.”
Comparatively, X stated that he enjoyed spending time with his father and that he enjoyed “helping around the house and garden. I can trust him – no subject is really off limits – he’ll give his opinions.”
X also advised Ms H, in his interview on 30 April 2018, that he had a good relationship with Y, his stepsister and half-brother.
In respect to the issue as to where he would like to live, X advised Ms H that he would like to “live with dad in Canberra because it’s much better here and there are more opportunities. I’m doing better at school in Canberra there are nicer teachers and nicer students.” X also stated that he enjoyed being in the company of his step mother. Comparatively, X advised Ms H that he did not want to go to B Town he stated that “I really don’t like living in that miserable house being yelled at.”
In his interview with Ms H on 30 April 2018, Y also stated that he could not find anything positive about spending time with the mother. He stated that this was because the mother hit him and his brother and that she shouted at both of them.
Comparatively, Y stated that he enjoyed spending time with his father because “he has never hit me or my family ever.” He stated that, when living in Canberra, he enjoyed “spending time with family and friends. Going to places.” Y also stated that he enjoyed being in the company of his step mother because “she pays attention to everyone, to all the kids.”
Y nonetheless stated to Ms H that he would like to spend approximately ten (10) per cent of his time with his mother and, when asked regarding how much telephone or online time he should spend with his mother he stated that it should be “at least” 30 minutes a day communicating with her.
In the mothers case outline document she contends that the Court should give little weight to the children’s views because they have been so heavily influenced by the father. She contends that the views they have expressed are not in accordance with conversations she has had with them. Examples of those conversations between the children and the mother and with third persons are set out in paragraphs 145-152 of the mothers Affidavit, as follows:
145. I have tried to have an open conversation with each of the boy's but they don't state either way that they want to live in Canberra. They were happy in their routines in B Town and often made references to the future living in B Town. They were always wanting to go on outings and to dinner and to play with their friends
146. Whilst in my full-time care during 2016, X would make comments regarding his learner's licence. He and his best friend U were planning to get their licences and wanted to drive a long distance together one day.
147. X was recently interested in a manual car that my friend was selling. X stated that he could drive his friends around in B Town once he had his Provisional Licence. Mr friend V took him for a manual car lesson
148. During the school holidays and I also took X for a driving lesson in my manual car. X has talked to me about applyfog for a manual licence. He could have driven my car.
149. Y would often discuss which teachers he would like to have at G School when he goes into High School. When Y returned from Canberra (after missing 5 weeks of school from July to August 2016) he often spoke about hoping to have Mr N n Year 5. Y had Ms O in Year 4, the same Teacher X had in years 5 and 6.
150. Y performed very well and received an impressive Report.
151. Y would never talk about going to school in Canberra. He only mentioned to me in fear on the 19 June 2016 that he did not want to go to Canberra as his Father was going to send him to R School in Canberra. I referred to this statement in paragraph 32 in my affidavit of 9 August 2016.
152. Y would say he feels sad upon returning from seeing the father, saying that he misses him, but is then happy to go to school the next day. Sometimes he states he does not want to go to school, but always seems happy when I collect him from school.
In so far as the mother does acknowledge that the children have expressed a desire to remain in Canberra, she contends that their view has not been rationally “thought out.” In that respect, she states, at paragraphs 157 and 158 of her Affidavit:
157. I say my children are not at the stage of maturity that decisions regarding where they should live are based on well thought-out rationale. X has stated that the reason he would want to live with his Father was because he had Wi-Fi. This is hardly a mature reason.
158. Y was often influenced by his older brother and he is still being influenced by X in many ways. From the age of ten years old (and in my parental opinion) would have lacked the maturity to be able to cope with the kind of contact with that the father was proposing. From my observations Y still struggles with being able to cope under his father's regime.
I am satisfied that both children wished to remain in Canberra with their father at the end of the December 2017/January 2018 school holidays and that they maintain that desire.
In that respect, the Independent Children’s Lawyer notes that there has been an Independent Children’s Lawyer appointed in this matter since February 2018 and since that time both children have consistently expressed the view that they wish to remain in Canberra.
The father contends that, given the children’s ages and their level of maturity that “significant weight must be given to their opinions.” I accept that contention.
The mother did not specifically acknowledge the accuracy of statements that the children have made to the Family Consultant, Ms H, and the Independent Children’s Lawyer that they do not want to live with the mother. In any event, the mother contends that the Court should give little weight to their views because their views have been so heavily influenced by the father.
The manifestation of the children’s poor relationship with their mother is recorded in the observations of Ms H at paragraphs 161 to 165 of her report dated 31 May 2018. In those paragraphs, Ms H reports that, initially, X argued with his mother but that, after a period of time, Y also joined in the argument. Ms H reported that as result of the interactions between herself and the children including the fact that X repeatedly told her to “stop lying,” the mother appeared to feel overwhelmed and began crying. Ms H reported that the mother stated “I can’t do this.”
That reaction on the part of the mother resulted in Ms H suspending the joint session between the mother and the children. The second attempted interaction between the mother and the children also progressed poorly. The interaction is discussed in paragraphs 171 to178 of Ms H’s report dated 31 May 2018. As a result of her observations of both of the sessions that the children had with their mother, Ms H summarised her conclusion as follows:
The observations conducted suggest that the children and Ms Lorreck have fractured relationships. It appears are that there is particularly negative communication between X and Ms Lorreck and that Y mirrors X’s negative attitude towards Ms Lorreck.
The accuracy of Ms H’s observations was not diminished in the course of cross examination that was conducted during the course of these proceedings and I accept the validity of her conclusion based on the observations that she recorded in the relevant paragraphs of her report to which I have referred.
Comparatively, in respect to the children’s interaction with their father, which is recorded at paragraphs 179 to 185 of her report, Ms H expressed the opinion that the interactions raised “no concerns about X and Y’s relationship with the father, their step mother, W or Z.” This is despite the fact that she recorded, during the course of that interaction, that, on one occasion, the father referred to Y as a “dummy” when Y, in discussions with the father about international issues, described America as a Communist country. Ms H also recorded Mr Watts discussing with X the manner in which he had set out his referencing for an assignment and, in a “good-natured and blunt manner” described the referencing as being “crap.” I accept that the father’s engagement with the children including those rather blunt comments were made in a way that was good-natured and, as recorded in Ms H’s observation, no offence was taken by the children.
I accept that there is evidence that the views of the children towards living with their mother in B Town have, to a degree been influenced by their father. This is reflected, for instance, in the father, to an extent, pandering to the children’s desires by facilitating the use of electronic technology including purchasing iPads for both of them and, most relevantly, in the father encouraging the children to write directly to the Court to express their desired outcome in these proceedings. I also have concerns that, in his interview with Ms H on 30 April 2018, Y referred to his mother as his “biological mother” despite clearly wishing to maintain contact with her by spending 10% of his time with her and talking to her for at least 30 minutes per day.
Nevertheless, despite the fact that I am satisfied that the children’s views have been influenced by the conduct of their father, those views are strongly held and given the age of both children, I am satisfied that significant weight should be given to their wishes.

Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

In her Family Report dated 4 January 2018, Family Consultant, Ms D, having observed the interaction between the children and their parents, expressed the view that both children appear to have a “reasonably close” relationship with each parent.
In her report dated 31 May 2018, Ms H reports, in her interview with the mother on 30 April 2018, the mother advised her that the mothers relationship with X “is fractured,” saying:
…he doesn’t call me Mum; it needs to be repaired. I wonder if it’s ever going to be repaired. I am being undermined at every opportunity [by Mr Watts and the Step-Mother]; we need therapeutic counselling.
In her interview with Ms H on 30 April 2018, the mother stated that her relationship with Y is much better than her relationship with X and, that Y would “interact with [her] at a closer level.” However, the mother stated that during the autumn school holidays, which occurred shortly prior to the 30 April 2018 interview, that Y was not forthcoming in displaying his affection towards the mother.
The mother attributes the decline in the children’s relationship with her, as having occurred since July 2016 when the father maintained the children in his care and, specifically, to the father’s negative interference with the children’s relationship with the mother.
The mother contends that, despite what is reported by the children, they continue to have a loving relationship with her and she continues to be able to discuss their schooling and daily activities with them in phone calls. The mother further attests to the children having a wonderful time with her over the last Christmas period. She asserts that, during the period, X apologised for his past behaviour. The mother attests that the children tell her they love her and that if the father had not actively undermined her relationship with the children they would have continued to have a stable loving and healthy relationship with her.
The mother otherwise accepts that the children love their father and like spending time with him. Having considered all the evidence in this matter, I am satisfied that the children have a close and loving relationship with their father. They have enjoyed overseas trips with him and they have shared interests with him.
I further accept that the children have a close relationship with their step mother and also with their half-brother Z and step sister, W. W and Y are very close in age, being born only one week apart. The father was not challenged on his evidence that they have a very close relationship. That fact was confirmed by W in her interview with Ms H.
The mother objects to the fact that the children call their step mother “mum.” However, in circumstances where they currently live with their half-brother and step sister, I do not consider that reference to their step mother should be construed as reflecting that the children have been alienated against their mother but rather that it is more likely to reflect a desire to fit in with the household in which they currently live and in which all children call Ms Watts, ‘mum’.
The father was not challenged on his evidence that the paternal grandparents visit the father and his children, including the children approximately twice per year. Unfortunately, the paternal grandfather is terminally ill with cancer.
It was not disputed that the children also have a close relationship with their step grandparents who reside in a property in close proximity to the father’s home.
I am also satisfied that the children have a close relationship with each other and this is highly material to the mother’s proposal, expressed in the alternative that would see the children live at separate locations located a considerable distance apart.
The relationship between X and his mother is strained. I agree with the submission of the Independent Children’s Lawyer that this has been exacerbated by the fact that the mother will not accept that X wishes to remain in Canberra.
I accept that the relationship between Y and his mother is not as fraught as that of his older brother. I further accept that, to a degree, Y’s opinion of his mother has been adversely influenced by his bother X. Nevertheless, I agree with the Independent Children’s Lawyer, that if the mother does not heed Y's wishes to remain in Canberra with his brother, then it is likely the relationship between Y and his mother will further deteriorate.
It should also be noted that the mother was not challenged on her evidence that the children have a close relationship with their maternal grandparents who live in a suburb of B Town as well as other members of the maternal family who live in the B Town area. In that context, the mother was not challenged on her evidence that the children would frequently visit their maternal grandparents. The maternal grandparents also assisted in caring for the children, for instance, if the mother was unable to pick them up from school on time for any particular reason or if the children were unwell or it was necessary to take them to a special event in circumstances where the mother was unable to do so. The mother was also not challenged on her evidence that the children frequently spoke to their maternal grandparents about their European heritage including the struggle of growing up in Europe during the Second World War.

In summary, the evidence to which I have referred, satisfies me of the validity of Ms H’s opinion which was expressed as follows:
At interview and during the observation, X and Y presented as having a close emotional attachment to Mr Watts, alongside this, they impressed as enjoying a positive relationship with their Step-Mother, step-sister and half-brother. Contrastingly, both children exhibited signs of having fractured relationships with Ms Lorreck.
I also note the Limited Issues Report of Ms L in 2016 where she reports that, in her interview with the children, for the purpose of preparing that report, they both expressed a desire to live with the father in Canberra. Having regard to that observation of Ms L, I am satisfied that the children have been of that view for several years.
At paragraph 190 of her report, Ms H speculated as to whether the children’s views have been influenced by the father and specifically, whether he has interfered in the children’s relationship with their mother. On the other hand, at paragraph 191 of her report she speculates as to whether the children’s views have been influenced by what they contend has been frequent incidents of yelling, shouting and even physical abuse on the part of the mother.
I am of the opinion that the truth lies somewhere in the middle. I am satisfied, that, for reasons which I have set out, the father has influenced the children’s views in favour of himself and has, to an extent, undermined the mother’s relationship with the children. Equally I am satisfied that there has been some volatility in the interactions between the children and the mother when they have been in her care in B Town.

Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.

The mother contends that, for most of the children’s lives, she has cared for them as their primary carer. In that context, she states that she has a history of providing for their needs, making decisions relating to major long term issues impacting them and spending time and communicating with the children. The mother states that she would continually talk to both children while driving home. She would go to the library where both children would do their homework and where they would watch YouTube videos and once a week she would take the children to a café or restaurant for a treat such as a cold drink or ice cream.
The mother was not challenged on her evidence that she would take the children out for family dinners approximately once a week as well as taking the children to a number of extra-curricular and entertainment venues such as go-karting and the cinema.
I accept that both parents are genuine in their desire to spend time with the children. Indeed the history of this litigation confirms that to be the case.
Regrettably, the manifestation of this desire has itself been a source of stress for the children. For instance, I accept and agree with the submission of the Independent Children’s Lawyer that, the mothers’ actions in travelling form B Town to Canberra just shortly before the children were to travel overseas caused tension for the children and resulted in the children’s time with the mother not progressing as successfully as might otherwise have been the case.
I accept that maintaining communication between the children and the mother is the cause of a considerable amount of conflict between the mother and the father and also between the mother and the children. As an example, the mother expressed concern that she was unable to communicate with the children, in accordance with the Orders of 16 January 2018, while they were travelling overseas. This was, however, largely due to the time difference between Europe and Australia rather than any lack of cooperation on the father’s part.
The mother has also expressed concern that she is unable to contact the children at pre-arranged times. However, I respectfully agree with the submission of the Independent Children’s Lawyer that the time has come for the mother to recognise the age of both children and the fact that they have their own phones and that it can reasonably be assumed that teenage boys may not want to communicate constantly or at times when they are preoccupied with other things.

Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

The father acknowledges that, when the parties lived together, the mother “did the mechanics of keeping a family existing well; she cooked good food and kept the house clean.” He acknowledges that she continues to have that capacity. In her interview with Ms H on 30 April 2018, the mother was unable to comment upon the extent to which the father has taken steps to maintain the children.
There is a considerable income difference between the parties and both parents have contributed to maintaining the children when they are in their respective care.
As noted, the children currently live with their father in Canberra and he currently provides for all their material needs.
It was not disputed that the father’s home is an eight bedroom house in a suburb of Canberra where the children have their own rooms.
Similarly, it was not disputed that, when the children live in B Town with their mother, they live in a home that has four bedrooms that they each have their own bedroom with their own personal belongings and effects in those bedrooms. The mother has also retained their scooters and bicycles as well as a trampoline and various equipment that they use swimming including goggles, snorkels and flippers.

Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.

The mother argues that father's proposal involves significant separation of the children from the mother as they will be in Canberra and the mother will be in B Town.
The mother contends that, in circumstances where she has been the primary carer of the children, they should live with her in B Town. If that occurs, the mother states that she will be able to maintain the relationship between the children and their father during significant holiday periods and telephone communication as has happened in the past.
The mother further contends that the father's proposal would severely damage the children’s relationship with their mother as the father would continue to actively undermine their relationship with her.
The evidence satisfies me that the children are well settled in Canberra. They have a close relationship with their father, their step mother and stepsiblings, as well as other members of the paternal family. Some behavioural issues that manifest themselves, particularly in respect to X’s conduct when he was at school in B Town, appear to have now resolved in his current school in Canberra. Similarly, when the children were living in B Town they were involved in an incident involving the theft of an electronic watch from a sports store. The mother described that incident in her interview with Ms D which was recorded as follows:
Ms Lorreck spoke of a recent incident at a store; 'both boys went into a change room. The staff located an empty fitbit box. Y had been seen carrying the item. X had asked questions about the product beforehand. Y had dropped the fit bit off in the shop. It was worth $360. The staff said they saw him on CCTV; the look on their face of realisation [of being detected]. I could not believe what had happened. I requested police be involved; due to other commitments the police could not attend. Both X and Y have been banned from the store. The manager was very good on the day, I took both boys to the police station. When I explained what had happened, the Senior Sergeant Staff came out and spoke with the boys. The boys had threatened me on the drive to the police station. X sits behind me; when angered he kicks my back when I'm driving. I'm concerned about his behaviour. To my knowledge, there has never been another incident of theft.'
There is no suggestion that, in the period that they have been living in Canberra, the children have engaged in any similar conduct.
In respect to X’s current circumstances, the father contends, as follows:
X has a very happy family life in Canberra, which has seen him establish a very safe and solid and fruitful life in Canberra. He is an active member of [an organisation]; he has a part time job at [a business in] Suburb F in Canberra in which he does regular hours of work. He has commenced a Certificate two [course] with [the business] in conjunction with [TAFE]. He has a very solid network of close friends, both male and female and enjoys regular social engagements with them outside of school and work hours. He also has a formed a relationship with a girl in Canberra and they spend time together on social outings. His school marks improved considerably in Canberra and he has now commenced year 11 in F School in Canberra and is actively looking forward to the school year with the many friends that moved to F School with him from [BB School]. Furthermore, he has obtained his own Medicare card, operates his own bank accounts and finances from his employment as well as has an ACT leaners permit for driving a car in Canberra. He operates his own social media accounts and other accounts such as Ebay in which he purchases items as he needs.
In respect to Y’s current circumstances, the father contends, as follows:
Y too has a very happy life in Canberra, he was once shy and reserved when he was in B Town, but has now become more open and joyous in Canberra. He is seeking to join [an organisation] when he comes of age and has advised he wishes to have a career in the [Public Service] following school and university. He has a very solid network of friends at school and socialises with them often afterhours and on weekends. Whilst his formal school marks are relatively the same as his marks in B Town, he has taken a great interest in Geography, [history and politics]. He now has a very good understanding of the location of most countries in the world and a demonstrable understanding of [various countries]. Y really enjoyed his recent 2018 trip to [Europe] and was able to put events into image as he visited [locations in Europe] that he has studied. Y's education in Canberra has improved considerably in the informal sense and this is having a positive input to his formal education as his curriculum changes. Living in Canberra as he wishes has seen him become more confident to become more outspoken and confident, rather than shy and reserved as he was when residing in B Town.
Also Y has an excellent relationship with his sister, W, as they are the same age and born a week apart in the same year. They call themselves 'the twins' and are virtually inseparable, even enjoying socialising with each other's friends. When not with friends, they play together or with their younger brother, Z. Y and Z have a good relationship and Z looks up to Y as the big brother. Certainly as he and W are both almost twelve, they are now showing a differences in their social interests to Z, but they still include him in play and discussion. Nonetheless, they are still all very close. Y (and W) have also sought to model their older brothers (X) example and obtain part time work when they are at an age to do so. Since living in Canberra, Y has shown considerable social changes and led a very active family and social life.
The father’s account is plausible and is entirely consistent with what the children have reported to the Family Consultants and to the Independent Children’s Lawyer. The father’s evidence, in that respect, was not diminished in cross examination. Accordingly, I accept that the father has provided an accurate account of the children’s current circumstances living in Canberra.
The current circumstances in respect to X in particular, contrast to his behaviour at school when he resided in B Town. Examples of X’s poor behaviour whilst he was living in B Town are included in paragraphs 125, 126 and 127 of the mothers Affidavit, as follows:
125. In September 2016, X was suspended from school as he refused [to shave] in accordance with school rules. I contacted the father and asked him to talk to X about this. Rather than $Up porting the school's position, Mr Watts sent my solicitor two letters denouncing the school and threatening to contact the Queensland Premier and Queensland Minister of Education about this.
126. X has a history of being defiant at school. In or around 7 November 2016, he was expelled from the Homework Centre because he left designated area without permission. I received an email about this from the Co-ordinator, Ms P. He was also suspended recently for making rude gestures to a female teacher and writing graffiti on a desk. He was suspended for a period of 4 days. The internal suspension occurred on Friday 12 May. The external suspension occurred from 14 May until 18 May inclusive.
127. X was again suspended from 26 July until 2nd of August 2017 (5 days) for making a rude gesture to the Librarian.
In her Family Report dated 4 January 2018, Ms D noted that, at the time of her assessment for the preparation of that report, X was struggling academically and that both children were involved in antisocial behaviour including stealing. In that report Ms D expressed some concerns regarding the mother’s ability to manage X’s challenging behaviour and, in that respect, suggested that there might be merit to the Court considering separate living arrangements for X and Y.
Ms H, at paragraph 205 of her report, described the potential consequences of an order requiring the children to live with the mother in B Town as follows:
This assessment indicates that Ms Lorreck currently has problems adequately meeting the children’s needs, if the children’s challenging behaviour intensified there is no guarantee that she would have the capacity to effectively support them. Information gathered in this assessment suggests that Ms Lorreck lacks skills at being attuned to the children’s needs and does not effectively manage tensions when they erupt in her relationship dynamic with them.
Ms H further noted, at that same paragraph that:
If the children were to live with Ms Lorreck in B Town, this would require them facing multiple changes simultaneously, including, a change in school and household composition, which is likely to be unsettling for them. If such a change occurred, the children would more than likely find it stressful because it would mean they would be separated from Mr Watts and their paternal family with whom they enjoy a close relationship.
I accept, however, that there were aspects of the children’s life in B Town that they enjoyed. In the case of X, these are set out in the mothers’ Affidavit at paragraphs 172 through to 182. The activities in the case of X included playing with his pet cat who lives with his mother in B Town, playing basketball including training in preparation for games, socialising with a large group of friends, attending youth group and meeting friends at the local shopping centre.
The mother attested to Y’s immersion in life in B Town in paragraphs 184 of her Affidavit. Those activities also included playing with the his pet cat, playing basketball, playing a musical instrument, riding his scooter, going to a local park with his brother where they had built a tree house and playing computer games. In addition, Y would attend a social group every Friday night where they would play games including basketball, soccer and occasionally attend camping trips. Further, it was unchallenged evidence of the mother, in respect to Y’s fondness of swimming and her account as to the various locations that he visited in B Town.
Having regard to the children’s lifestyle and the range of activities that they participated in when they resided in B Town, the mother contended that without the father’s constant undermining of her relationship with the children, they would be happy in her care.
During the course of the proceedings, it was evident that the mother has experienced profound grief in respect to the loss of her relationship with the children and a lifestyle that they had enjoyed together in B Town. While I acknowledge and can, as far as I am able, empathise with that sense of loss, my obligation is nonetheless to make Orders that I am satisfied are in the best interests of the children.
In that respect, the evidence is quite clear that both children have moved on in their lives and are now settled in Canberra and want to remain there. The Independent Children’s Lawyer was, with respect, perceptive in submitting that regrettably, the more the mother endeavours to alter or reverse the current circumstances of the children’s lives in Canberra the more likely it is that she will engender resentment on the part of the children and further damage their relationship with her. In noting, and agreeing with that submission, it is important to recognise that, at this stage, it is the mother’s relationship with X is the more problematic and there will be a significant challenge for both parties in restoring that relationship. The mother’s relationship with Y is, however, relatively sound and it would be most unfortunate if that relationship deteriorated to the extent to which the mother’s relationship with X has.
I am also satisfied that the children are well settled in the home in which they live in Canberra with the members of their family to whom I have referred.
The father was not challenged on his evidence that, in Canberra, the children are involved in a number of extracurricular activities. Both children enjoy assisting their father and step siblings in the garden where they are growing fruit and vegetables. Y’s plays a musical instrument and, in terms of sport, plays baseball with his friends in Canberra. He also has a private tutor to assist him in learning a language. X has a desire to join the Public Service. He is an active member of an organisation where he attends every Friday between six (6) and ten (10) pm. He also has a weekend activity with an organisation, either in Canberra or at other locations in New South Wales.
Having regard to those matters and the closeness of the children’s relationship with their father, step mother and step siblings as well as their broader paternal family and the friends they have made at school, I agree with the submission of the Independent Children’s Lawyer that, if the Court makes an Order against the express wish of both children to remain living in Canberra with their father, it would be detrimental to the wellbeing of both children and not in their best interests.
I also respectfully agree with the submission of the Independent Children’s Lawyer that the geographical distance between Canberra and B Town is also such that it would not be possible for the children to spend time with each other on a regular basis if they were separated. I am satisfied that this would cause distress to both of them and result in a further fracturing of the children’s relationship with their mother.

Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Cleary there is a large geographical distance between the parties. If the children remain in Canberra and the mother remains in B Town, this results in not insignificant travelling costs when the children spend time with their mother.

As an example of the action taken by the mother, she refers to the fact that, in February 2017, she removed the “ADSL box” which was located in her home office. She contends that she did this on the advice of a “plain clothes police officer.”
The mother acknowledged that what she contends was her more responsible attitude to the children’s use of electronic technology has caused the children to be “resentful” at times.
I have earlier referred to the fact that X sent an email to the Court dated 6 December 2016. When questioned by Ms D about sending that email X stated:
Dad gave me his name and email address. Mr M's address is on the business card he gave me. I wrote to the Judge to help me and Y to live with Dad. To support Dad because I love him. Dad is a fair parent.
The reference to Mr M is a reference to the mother’s previous solicitor. In my view, it was irresponsible for the father to give X Mr M’s business card. It was also irresponsible for the father to give X the Courts email address to facilitate X corresponding directly with the Court. In doing so the father drew X, as an active participant, into the controversy between himself and the mother.
As a related issue, Ms D was critical of the father in facilitating the children when communicating with the mother to inform her that they no longer wish to live with her. In that respect, at paragraph 158 of her report, Ms D notes the following:
In his affidavit of June 30th 2016, Mr Watts indicates X and Y informed Ms Lorreck by phone and email on June 28th 2016 that they did not wish to live with her (paragraph 7 refers). From the writer's perspective these examples suggest Mr Watts has poor adult-child boundaries; the children are conveying adult information to Ms Lorreck.
I accept the validity of Ms D’s opinion in that respect.
The mother also contends that the father has acted irresponsibly in referring to her as “Ms Lorreck” and “she” or “her.” As a result, the mother contends the children similarly refer to her by her first name rather than as “mum.” I accept that it is unfortunate that neither of the children appeared to refer to their mother as “mum” although, evidence tendered in these proceedings included emails in which the children have addressed their mother as “mum.” There is, however, no evidence that the father has requested or encouraged the children to refer to the mother by her Christian name rather than as “mum.” It would be helpful, however, in terms of the parties’ future relationship if the father made his best endeavours to encourage the children to refer to their mother as “mum”.
Both parties contend that the other has been irresponsible in the manner in which they have behaved towards each other and in respect to the children. Specifically, both parents contend that the other has breached orders of the Court on various occasions. The reality is that both are substantially correct. Unfortunately, both parents have put the pursuit and execution of their ongoing conflict ahead of the interests of the children, who have been caught in the middle of their parents ongoing conflict and which has caused both of them considerable ongoing distress.
I agree with and accept the submission of the Independent Children’s Lawyer that the mother's inability to accept the views of the children, and her insistence that these are not the children's views but that of the father, show a lack of insight into how this adversely impacts upon the children.

Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;

The mother alleges that there was a history of family violence between the parties. Specifically, at paragraphs 61 to 77 of her Affidavit the mother alleges that:
·the father regularly denigrated the mother in respect to the period between 1994 and 2008. There were also incidents of physical violence. She contends some of these events occurred in front of the children.
·the father denigrated and was also sometimes violent towards the children.
With the exception of one (1) event to which I will refer, the alleged events that the mother relies upon occurred prior to 27 November 2008.
Police records confirm, the police were involved in separate incidents that occurred during 2008 and 2009 due to alleged family violence between the parties.
The event that the mother relies upon, that occurred in the period after the parties separation, is her allegation that, at a point in time when the father was no longer living at the family home, he had a bayonet delivered to that address. The mother stated that “the father came to the house, collected the bayonet, said to me ‘I wish you never existed,’ then left.” The father denies that such an event occurred.
In circumstances where each of the parties has a different version of the alleged conversation, I am unable to determine, to the standard required by section 140(2) of the Evidence Act 1995 (Cth), that the conversation, as alleged by the mother, occurred.
Comparatively, the father contends that the mother has been physically violent to both of the children and, in particular, to X. In his interviews with Family Consultants, X has provided an account of such violence occurring. The mother denies the father’s allegations that she has been violent towards either the father or the children.
The father also contends that the mother reported the family’s circumstances to police in January 2018, at a time when the children were in the mothers care in Canberra and allegedly left her care to return to the father. Comparatively, the mother contends that the police were most recently involved with the children on 30 January 2018, in circumstances where the children allegedly made false allegations against her that she had assaulted them.
While issues of alleged family violence are taken seriously by the Court, I note that the mother states, in her case outline document, that “there is no longer a risk of family violence as the parties are not living together.”
I accept that to be the case in respect to the potential for family violence to occur between the parties.
A similar situation exists in respect to the allegations that the mother has physically assaulted the children and, in particular, X. The evidence is not such that it reaches the standard required by s 140(2) of the Evidence Act 1975. As a result, I do not make any positive finding that the mother has physically assaulted the children. It is, however, plausible that disagreements between the mother and the children resulted in the mother and children becoming angry and their conduct becoming dysregulated. It is not possible, however, to make a positive finding that aggressive physical contact occurred.
Moreover, given the age and maturity of both of the children and the fact that they both regularly spend time with the mother during school holidays, I am satisfied that neither of the children are at risk of physical harm in the mothers care or, for that matter, in the care of their father.

Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;

In September 2008, the mother was arrested for allegedly assaulting the father and an interim Apprehended Violence Order (‘AVO’) was issued granting protection to the father and the children. However, in subsequent police intervention the attending Police Sergeant attached to the DD Town police station recorded her opinion that the mother was, at that time, “showing all the signs of a woman under domestic violence pressure.” The Police Sergeant further reported “I have never seen [the mother] do anything inappropriate, either in the presence of, or to the children.”
Accordingly, I place no weight on the fact that an AVO was issued. There is no relevant order sought in respect to this consideration.

Sub-section (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;

Having regard to the views expressed by X and Y, to remain in Canberra, I am satisfied that there is a real possibility that they would not cooperate with orders requiring them to relocate to B Town. This is particularly the case in respect to X who now has his driver’s licence. Such an outcome would inevitably result in further litigation due to orders not being complied with.

Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.

The mother has failed to appreciate the children’s maturity

As previously indicated, a significant aspect of these proceedings is the extent of litigation between the parties. The history of litigation has resulted in a substantial financial and emotional drain for the parents and also, regrettably, the children. The history of the litigation is, as I have indicated summarised in paragraphs 9 to 12 of the mother’s Affidavit. A further summary is provided by the mother at paragraphs 27 through to 35. In providing that account, the mother attests to several instances where she contends the father has failed to comply with Orders of the Court. Similarly, as previously noted, the father has filed a Contravention Application in which he contends the mother has similarly failed to comply with Orders of the Court.
I am satisfied there have been a number of instances where disputation between the parties has resulted in situations where they each perceive that the other has failed to act in accordance with the Orders of the Court. Given that history, there is every possibility that ongoing disputation will result in further litigation.
The children are now at an age where they have access to extensive electronic communication facilities including the fact that their home is wired for Wi-Fi and facilitates face-to-face video calls on their computers and phones. I accept the evidence of the father that he has not placed any restriction on the children’s ability to telephone their mother at such times as they like nor the frequency or times that they receive calls from her. However, I am concerned that, given his age, and the influence of his older brother, Y may have concerns in voluntarily electing to communicate with his mother. In those circumstances I agree with the recommendation of Ms H that specific provision be made for times when Y is to communicate with their mother by way of telephone or other electronic device. This relieves him of the burden of having to make a choice regarding that matter. It also avoids potential conflict of the mother potentially forming the view that the father has interfered with the children, if they have not accepted her telephone calls on other occasions.
While I can well understand that the mother misses the children’s company, it is imperative that she appreciates that they are now at a stage in life when they are demanding more independence and greater autonomy in respect to matters that impact upon them.
For the reasons that I have outlined, in my consideration of section 60CC factors, I am satisfied that it would be contrary to the children’s interests to require them to move residence to live with their mother in B Town.
In arriving at that conclusion I am satisfied that, if it was practicable, the children should spend more time with their mother. Accordingly, I have made Orders that provide for the possibility of the mother moving to Canberra. Those Orders will provide for Y to, in those circumstances, spend more time with her.
X is now almost 18 and is accurately described in the proceedings as a young adult. He has a driver’s licence, a part-time job and a girlfriend who resides in Canberra. His father was not challenged on the evidence that X spends a considerable amount of time with his girlfriend at her home and also at the father’s residence. It is imperative that the mother appreciates that X is now at an age where he will increasingly make decisions for himself in accordance with what he perceives to be his best interests.
Significantly, in his interview with Ms H on 30 April 2018, X expressed the view that his relationship with his mother might improve if his mother allowed the children to remain living in Canberra and “stops yelling at us.”

Overseas travel

An issue that has given rise to conflict between the parties has been the father’s desire to take the children on overseas trips. As noted, the mother contends that she opposes the children travelling overseas because it “often clashes with their school schedule.” In that respect, in her Affidavit, the mother stated that she planned to take the children to Asia, however, she stated that she did not agree with the father taking the children on “any more overseas trips as they have travelled overseas – a significant amount of time. I believe that he would apply continuously as a way of undermining me”.
The mother further stated that she is concerned that the father “might attempt to abscond with the children.” That contention is, with respect, disingenuous. There is no suggestion that they will be retained overseas or that they will be inadequately cared for when they are overseas with their father and/or step mother.
I am satisfied that it is in the interests of the children that they have the opportunity to engage in overseas travel and learn about different cultures including visiting Asia which has particular significance to their step siblings. Accordingly, in making an Order for the father to have sole parental responsibility I will specifically clarify that the responsibility, so given, includes the responsibility for determining whether the children engage in overseas travel.

Therapy

Ms H recommended that, in circumstances where the children have such a poor relationship with her mother, there would be benefit in the children and the mother attending family therapy. My concerns regarding that recommendation are, however, twofold. The first concern is the practicality of the children and the mother attending therapy given the distance between Canberra and B Town. The second concern is the fact that X expressed a strong objection to attending such therapy.
On balance, I have formed the view that the parental conflict has so dominated these children’s lives that they should now be able to get on with activities of their choosing without being compelled to attend an ongoing program of family therapy.

Summary and conclusion

Ms H, with respect, accurately summarised the fundamental issue in this case in the following terms:
The crux of this case appears to be whether the children’s fractured relationships with Ms Lorreck have been caused by, as Mr Watts alleges, Ms Lorreck abusing the children, or as Ms Lorreck alleges, as a result of Mr Watts interfering in their relationship. Information gathered in this assessment suggests that Ms Lorreck’s parenting of the children might have been sub optimal, on occasions, and that they may have been subjected to psychological harm in her care. Collateral information indicates that Mr Watts may have interfered in the children’s relationship with Ms Lorreck, consequently this may have initiated problems and/or exacerbated existing problems in the children’s relationship dynamic with her.
Having regard to the evidence to which I have referred, in addressing the s 60CC considerations, I entirely agree with her analysis. In other words, the position is not black and white. There are elements of conduct on the part of both of the parties which has resulted in the present situation where the children do not want to live with the mother in B Town and, instead, want to live with the father, their step mother, their step sister and their half-brother in Canberra.
Nevertheless, the children are at an age and level of maturity where considerable weight should be given to their views and wishes. Their position has been made clear since at least 2016. It is a wish that has been consistently expressed to the Family Consultant’s and the Independent Children’s Lawyer.
It should be noted that the conclusions I have made as to orders that are in the best interests of the children are at odds with the findings and opinion expressed by Ms D in her Family Report dated 4 January 2018. In evaluating Ms D’s opinion it is significant that Ms D did not make a recommendation but rather set out her observations of each of the parents strengths and weaknesses, as follows:
172. Rather than offering recommendations, the writer now outlines each parent's strengths and deficits.
173. From the writer's perspective, Mr Watts' strength is his articulated desire to teach and provide experiences for X and Y. The writer has no doubt Mr Watts has the capacity to provide for the boys' physical needs. He is academic focused. The writer is of the opinion Mr Watts' capacity to facilitate a constructive and meaningful relationship between X, Y and Ms Lorreck is somewhat limited. Assessment data suggests he has involved X in the current litigation; the writer has some doubt about Mr Watts' capacity to provide for X's and Y's emotional needs. He has withheld the children in July 2016 and in December 2017. One could argue Mr Watts has undermined Ms Lorreck as a parent; he has not advised Ms Lorreck of the children's decision to take their electronic devices to her home and has assisted X to have a debit card.
174. From the writer's perspective, Ms Lorreck's strengths are her articulated love for X and Y and capacity to provide for X's and Y's physical, emotional and academic well-being. To her credit she has endeavoured to address X's poor behaviour. The writer gained the impression Ms Lorreck has facilitated a constructive, meaningful relationship between X, Y and Mr Watts. The writer has concerns about Ms Lorreck's capacity to manage and address X's poor behaviour.
On the basis of the evidence presented in these proceedings, I accept the validity of Ms D’s assessment of each of the parties’ strengths and weaknesses in terms of parenting capacity. However, it is clear that, in noting as a potential outcome in these proceedings is the possibility of an Order providing for Y to live with his mother in B Town and X to live with his father in Canberra, Ms D was influenced by her observation of what she recorded to be a close relationship between the children and their mother. In that respect at paragraph 151 of her report Ms D summarised her observation of the children’s interaction with both of their parents as follows:
When observed with each parent, X and Y appeared to have a reasonably close relationship with each parent. In contrast, at both interviews X was critical of Ms Lorreck. Whilst Y's comments about Ms Lorreck tended to mirror X's comments, the writer noted Y was more objective.
I have previously noted Ms H’s observations of the children’s interactions with their mother to have been significantly more strained than that observed by Ms D. Indeed, according to the observations of Ms H there were elements of aggression displayed in the communication between both the mother and X.
When cross examined about that observation, Ms D accepted that her observations of the children’s interactions with their parents occurred between 22 September 2017 and 25 November 2017. She further acknowledged that on the last occasion when she had contact with the children was 25 November 2017.
In response to a relevant question, Ms D accepted it is possible that, in the period subsequent to her observations, there could have been a change in the nature of the children’s relationship with their mother and, specifically with the views of Y becoming more aligned with those of his brother. In that respect the following exchange took place between Counsel for the Independent Children’s Lawyer and Ms D, as recorded in Transcript 27 March 2019 page 76 lines 15-25:
All I can talk about is what they would have been like if they were separated in January 2018. And I felt at that time, they – there was scope for separation, because Y was – he was able to distinguish when X was acting out, and showing some concern about his brother’s behaviour. But I think, and seeing that 12 months has elapsed and they’ve been together since that time, there may be more alignment together now.
They’ve also been living in a house with their stepsiblings, W, who is close in age to Y; and Z - - -? - - -That's right.
- - - who’s aged five at this time, I believe? - - -That's correct.
So separation would necessarily be separation from their stepsiblings as well; do you agree? - - - It would be now, yes

Based on the evidence presented in these proceedings and, in particular, the observations of Ms H to which I have earlier referred, I am satisfied that the children are closely aligned in their view that they do not wish to live with their mother and that there has been a significant deterioration in the children’s relationship with their mother in the period subsequent to when the observations of Ms D were recorded on 25 November 2017.
Accordingly, in those circumstances I prefer and accept the more recently expressed opinion of Ms H that it is in the best interests for Orders to be made for the children to live with the father in Canberra and to spend time with the mother. I accept that in the period since November 2017, the children have also developed a close relationship with their step sister and their half-brother. As noted, Ms D accepted that may now be the case.
In those circumstances, I must, respectfully, disagree with Ms D that an Order separating the location where the children live might be considered to be one that is in the best interests of the children. For the reasons I have explained, I am satisfied that it would not.
I accept that, given his age, it is appropriate that Orders in respect to X provide for him to spend time with his mother in accordance with his wishes. In circumstances where Y’s relationship with his mother is far less strained than is the case with his older brother, I accept that it is appropriate for Orders to be made for Y to spend time with his mother. In circumstances where he is now fourteen (14) years old, I do not consider that it is necessary for Y’s time with his mother to be restricted to daytime only. To make such Orders would decrease the likelihood of him re-establishing a meaningful relationship with his mother. In those circumstances I prefer the Orders proposed by the Independent Children’s Lawyer which provide for Y to spend overnight time with his mother.
I note the opinion of Ms H that the mother should travel to Canberra in order to facilitate Y spending time with the mother. That same constraint was not proposed by the father who acknowledged the possibility of the children agreeing to travel to B Town to spend time with their mother. In those circumstances I propose to make orders facilitating the children spending time with their mother in either Canberra or B Town as agreed between the parties or, in the absence of agreement, for that time to be spent in Canberra.
Finally, I record that I have considered making orders for Y to spend additional time with his mother in the event of her moving to Canberra. That possibility is, however, at the present time, merely speculative. Accordingly, I have not made orders providing for Y to spend time with his mother during school term. However I have facilitated that possibility by providing for the parties to have the opportunity to agree to Y spending additional time with his mother whether it be in B Town or in Canberra.
For all these reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 4 September 2019.

Associate:

Date: 4 September 2019