A and S
[2004] FMCAfam 563
•19 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & S | [2004] FMCAfam 563 |
| FAMILY LAW – Children – residence – contact – competing applications – contested residence – separation of siblings – allegations of abuse by another child – best interests of children – child suffering severe behavioural problems. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F
A & A [2003] FMCAfam 420
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91-979
Briginshaw v Briginshaw (1938) 60 CLR 336
| Applicant: | M T A |
| Respondent: | L K A S |
| File No: | PAM 3754 of 2001 |
| Delivered on: | 19 October 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 7, 8 & 14 April 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Lansley Lawyers |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | R.J Russell Solicitors |
| Counsel for the Children’s Representative: | Legal Aid Commission of New South Wales |
ORDERS
That the child of the marriage O S A born 24 July 1993 is to live with the Applicant father.
That the children B A A born 22 April 1996 and E J A born 17 July 1998 are to live with the Respondent mother.
That the child O is to have contact with the mother as follows:
(a)for three (3) weekends out of five (5) according to the father’s shift roster from 5.00 p.m. on the Friday until 5.00 p.m. on the Sunday extending to 5.00 p.m. on the Monday if the Monday is a public holiday;
(b)for the whole of the Autumn, Winter and Spring school holiday period in each year;
(c)each alternate Christmas period commencing at 5.00 pm. on Christmas Eve and concluding at 10.00 a.m. on Boxing Day in 2005 and each alternate year thereafter;
(d)for the weekend that includes Mother’s day in each year; and
(e)For the balance of the Christmas/January school holiday period in each year less any period of two weeks when the children B and E are exercising contact with the father.
That the children B and E are to have contact with the father as follows:
(a)for two (2) weekends out of five (5) according to the father’s shift roster and coinciding with weekends that the child O is at the father’s house;
(b)for two (2) continuous periods of two (2) weeks in each year, totalling four (4) weeks in all, PROVIDED THAT the father notifies the mother no less than one month beforehand of his intention to exercise that contact period AND ALSO PROVIDED THAT the child O simultaneously spends those periods with the father;
(c)for the weekend that includes Father’s Day in each year; and
(d)Each alternate Christmas period commencing at 5.00 p.m. on Christmas Eve and concluding at 10.00 a.m. on Boxing Day in 2004 and each alternate year thereafter.
That the parties are to do all things required to attend the Keeping Contact Program or another parenting after separation program conducted by Unifam and follow all reasonable directions of the convenor of that program.
That the mother arrange an appointment with K P, clinical psychologist, within one month from the date of these Orders for the purpose of discussing the care, welfare and development of the child O.
The father is to do all things necessary to ensure that another adult is present at all times when the children B and E are in his company for contact.
The parties are to retain joint responsibility for the long term care, welfare and development of the children.
Each party is to be responsible for the day to day care, welfare and development of the children at all times when the children are in the care of that party.
The parties are to inform each other as soon as is reasonably possible of any medical emergency or any hospitalisation or any medical specialist’s appointment concerning any of the children.
Each party is to authorise the principal of the school attended by all or any of the children to provide to the other party on a regular basis copies of all school reports, bulletins, newsletters, information about school photographs and any other information normally provided by the school to parents of children attending that school.
Each party is permitted to attend the school at which each of the children is currently enrolled as a pupil for the purpose of any parent-teacher interview, school concert, prize-giving, sports day, swimming carnival or any other activity normally attended by parents of children attending that school, subject to the parties complying with all reasonable directions of the principal or deputy principal of that school.
The appointment of the Children’s Representative is extended for a period of one (1) month from the date of these Orders.
The Children’s Representative must forward a sealed copy of these Orders to the Principal or Principals of the school or schools attended by the children within one (1) month of the date of these Orders, together with a letter drawing attention to Orders 11 and 12.
Any application for an order for costs must be made within two (2) months.
Subject to Order 15, the Application is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM3754 of 2001
| M T A |
Applicant
And
| L K A S |
Respondent
REASONS FOR JUDGMENT
This matter concerns competing applications by M T A ("the father") and L K A S ("the mother") for the residence of their three children.
Background
The father was born on 19th September 1962. The mother was born on 4th October 1964. By occupation the father is a technician and the mother is a full time homemaker. The parties commenced cohabitation in or about 1991 and later married on 10th August 1991 at Camden. The parties separated on 19th February 2000. This Court pronounced a decree nisi dissolving their marriage on 7th January 2002.
The parties have three children, O S A born 24th July 1993, B A A born 23rd April 1996, and E J A born 17th July 1998. Since separation the children have resided with the mother, until 4th May 2002, when O went to live with the father.
In 2001 the father initiated proceedings in the Local Court of New South Wales. Consent orders were made in the C Local Court on 1st November 2001 in relation to residence, contact and property division. The effect of the contact and residence orders were as follows:
That the children of the marriage O S A born 24 July 1993, B A A born 22 April 1996 and E J A born 17 July 1998 reside with the Respondent wife.
That each party be responsible for the day to day care, welfare and development of the said children whilst in their respective care.
That the parties have joint responsibility for the long term care, welfare and development of the children.
That the Applicant husband have reasonable contact with the said children.
In December 2001 the father commenced a relationship with Ms K S. This relationship has continued.
The father became concerned about E’s general development such as toilet training, speech and articulation and weight. In April 2002 he made contact with O and B’s school and received information from the school regarding B’s poor progress.
In April 2002, the parties agreed that O would live with the father. On 4th May 2002, O took up residence at the father’s home, and he has lived there ever since. The mother and O had some contact and later this developed into regular contact. In October 2002, the mother requested that O return to live with her.
In May of that year the father made contact with the Health Service to have a psychologist, Ms K P assess O in relation to his behavioural problems. In August 2002 O was diagnosed with Asperger’s Disorder.
In November 2002 the father consults a speech pathologist in relation to E. In June 2003 the father sought advice and guidance from the Department of Education in relation to E’s problems and both parties attend an appointment with the Department. The parties both attended a Case Meeting at C V Public School to discuss the issues in relation to E’s development.
On 10th November 2002 the mother wrote to the father advising him that she would collect O at the end of school term. The father made a formal request to the principal of O’s school in relation to O’s history, intervention and support and outcomes of intervention.
On 25th November 2002 the father filed an Application in the Federal Magistrates Court seeking a variation of the orders made in the C Local Court. In his application of 25th November 2002 he effectively sought the following orders:
a)That the children live with him;
b)That the children have contact with the mother at times to be agreed between the parties but as a minimum; and in the alternative
c)That O live with him; and
d)That the mother to have contact with O as agreed between the parties.
The matter came before me on 6th January 2003. I ordered the parties to attend confidential counselling and adjourned the matter to 13th January for interim hearing. The parties were not able to reach an agreement on the issues at counselling. When the matter came back before the Court on 13th January 2003 the parties entered into interim consent orders. Those interim orders provided that:
(a)The orders made in the Local Court on 6th November 2001 were suspended;
(b)The child O was to have continuous contact with the father;
(c)That the other two children, B and E, were to live with the mother.
I made a further order for the preparation of a family report. I set the matter down for hearing on 19th and 20th June 2003. The matter was not able proceed on those dates and on 16th June 2003 the matter was adjourned to 4th and 5th September 2003 for hearing. On that date, when the matter came on for hearing, the mother sought to lead affidavit evidence that the child E had been the subject of inappropriate touching by a 14 year old boy residing in the father’s household. It is unnecessary to go into all the details again, but the matter is covered in an unreported decision of this Court, A & A [2003] FMCAfam 420. As there was an allegation of child abuse, I formed the view that the matter could not proceed in its current form, and I ordered that the children should be legally represented. The parties entered into consent orders to provide for a contact regime that would not leave the girls unsupervised.
On 20th October 2003, Ms Kerrie O’Donnell, the newly appointed Children’s Representative, appeared and the matter was adjourned to 7th and 8th April 2004 for final hearing.
On 11th September 2003 the mother filed a Notice of Child Abuse or Risk of Child Abuse alleging that during contact periods E had been touched inappropriately while at the father’s place by B R S the son of the father’s new partner. The Notice raised allegations that E had been the subject of scrutiny by B whilst she took a bath. The Notice also raised allegations that, whilst residing at the father’s home, the boy B subjected O to both verbal and physical abuse. The abuse was said to include the making of death threats against both O and his mother, pushing and punching. The Notice raised concerns that three children are at risk of physical abuse by B whilst in the father’s home.
On 22nd March 2004 the father filed an amended application seeking residence orders and seeking that the Court grant leave pursuant for B to file an Affidavit in response to the matters raised in the Notice of Child Abuse filed on 11th September 2003. At the commencement of the hearing, the application was withdrawn. The child B was not given leave to file an affidavit.
The father’s case
It is the father’s case that O should continue to live with him and his new partner, Ms S, and that B and E come and live with them. He asserts that the mother is not willing to understand the nature of O’s disorder and is not willing to invest in his progress.
O is the eldest child of the parties. At the time he commenced school the parties noticed that he had some problems including some violent tendencies which he displayed at school.
After separation all three children remained living with the mother. The father worked shift work and was not in a position to exercise frequent and regular contact with them. The father lived in shared apartment. Due to the size of the accommodation he was unable to exercise contact. The father did, however have contact with them a few hours each week.
A large part of the father’s case is that O should continue to reside with him and his partner. O is the eldest child of the parties and is now 11 years old. He attends C V Public School. The father found it difficult at contact periods with all three children because of O’s behavioural problems and his constant demand for attention. The parties had some discussions about O’s behaviour and they agreed that the unusual behaviour was due to the limited contact between him and the father, although the father was not convinced that this was the only contributing factor.
During O’s second year of school his behavioural problems worsened. The father says that the mother did not raise these matters with him and he learned of them through O. The father visited the school when O was in Grade 2 and was informed by one of the teachers that O had ridden his scooter across a busy thoroughfare when he should have used the pedestrian underpass. The father claims that he had no knowledge of this incident and discussed it with the mother. She explained that she had told him not to do it but he would not listen to her. It was at this point the father considered the mother not have a proper control of O.
In December 2001 the father met K S, his present partner. They moved into a family home together and the father was able to have more contact with the children. Both the father and Ms S noticed things about O in that he rarely smiled, appeared self absorbed and was not capable of focusing on a two - way conversation. They also noticed that he did not sit with other family members at gatherings and did not actively participate in games or conversations. The father says that O’s behaviour worsened during periods of contact and on some occasions O would run onto the middle of the road and refuse to obey safety instructions.
Concerned with O’s behavioural problems, the father contacted the school to seek advice. In May 2002 he made contact with the Health Service, who arranged a psychologist, Ms K P, to assess O in relation to his behavioural problems. Later that year, in August, O was diagnosed with Asperger’s Disorder, a form of autism.
The parties reached a verbal agreement that O would reside with the father and his new partner. O moved in with the father and his new partner on 4th May 2002. The father’s case is that since O has come to live with him his behaviour has improved.
Shortly after O came to live with the father the mother had contact with O on an ad hoc basis. The father says that the mother was hesitant to agree to a planned contact arrangement. The parties entered into a roster and the mother agreed that she would have contact with O for two weekends out of five. On 13th October 2002, during contact between the mother and O, the mother called the father and told him that O wanted to come home. The father tried to encourage O to stay with him until the end of the school term. That evening, the mother returned the child to the father. On that same evening after the mother had dropped O off, O told his father that he was moving back to Bradbury and that he had his mother’s permission. The father claims that he spoke with O about his therapy, and O said that his mother had advised him that he no longer needed it.
The father had informed the mother in July 2002 that O’s behavioural problems were caused by Asberger’s Disorder. On 1st November 2002 the parties attended a Case Meeting at the school to discuss the progress of O’s behaviour and schoolwork. The father claims that during this meeting only he and the treating therapists showed a genuine interest in O’s care. The father also deposes that the school had made attempts to raise with the mother O’s behavioural problems but concluded she had no interest in the problems.
In a letter dated 10th November 2002 the mother advised the father that she would be collecting O and his personal possessions on 21st December 2002. The letter relevantly provided:
After consultation with my solicitor I am advising you that on DECEMBER 21st, 2002. I will be arriving at 23 Orchid St, C V to collect O and his possessions.
As per our verbal agreement made in April 2002, O has requested to come back home to B. He has agreed to finish in Term 4, 2002 at C V Primary School, but come home the end of term 4 on the 21st December, I will arrive at 23 Orchid St C V to pick up my son and his possessions to bring him home.
I have already advised the school to make preparations to transfer his records for the school year 2003. Also I have advised them that I have SOLE RESIDENCE CUSTODY of all three children, as stipulated in the divorce agreement which was finalised in February 2002.
Since the interim hearing on 13th January 2003, B and E have continued to reside with the mother and the father has had continuous contact with O. The father has exercised contact with the two girls. The father says that since the interim hearing of 13th, January, Ms P has continued to treat O. The father regards this treatment as working. He feels that O’s behaviour has improved in that he is more aware of other people’s needs and feelings, although those skills are not yet appropriate for his age.
The father says that although O had made some progress there were instances where O’s behaviour would be a concern. For example, in mid 2003 the father found a detention slip in O’s bedroom. O was placed on detention for throwing sand into the face of a younger child while playing the school sandpit. O claimed that the younger child had knocked his bridge down and he got annoyed so he threw the sand in his face. The father attended upon the principal of the school, who advised him that the sandpit was really for younger students and were looking at ways for O to play in the sandpits. O’s teachers have explained that his classroom behaviour is fine but his playground behaviour is a problem.
The father says that O now takes more pride in his appearance and dresses appropriately. He takes time to keep clean and tidy and has managed to match his clothes by colour and style. O’s schoolwork has improved and his teachers have complimented him on his level of class cooperation and in sharing his knowledge. He no longer refuses to participate in class activities. O is now more able to adapt to change and has followed a planned routine. He identifies better with groups and teams. He is now in a better position to speak in front of groups of people. At the father’s birthday party O announced on the microphone that it was time for dessert. He has completed a project about shopping in the 1940s. He spoke with his grandmother about her recollections and spoke at the school assembly about his research.
Despite his progress the father claims that O from time to time becomes fearful and immature. It is the father’s claim that traces of the child’s older behaviour result from visits with his mother. The father says that O uses baby talk and displays childish gestures. He also delays bowel movements and will soil his pants after refusing to leave his trains to use the toilet.
The father and his new partner regularly provide guidance and assistance to O, who finds it difficult to get it back into his daily routines after being at his mother’s house.
O sees his psychologist three times each month and both the father and K S attend these sessions. They discuss O’s past week and collectively recall incidents that have occurred during the course of that week. The psychologist engages in a conversation with O about events that have happened in his week and how he feels about that.
The father says that both he and K independently encourage and complete regular assessments of O which they later share with O and the psychologist. K’s daughter O also attends counselling with O and the father and K. These sessions have enabled O and O to become closer. The father says that he and K participate in these sessions so they ensure that they are gaining skills and knowledge in how best to help O. The father encourages O to express his views and attitudes and to try other ways of dealing with tasks and problems. For example, O made a decision to complete his homework in one sitting so that he has more free time available later in the week. O has now developed skills whereby he is able to plan ahead and complete tasks within a set timeframe. His negotiation skills have improved.
In 2003 O was only placed on detention three times, and six or seven times over the whole of the last 12 months. The father accepts that O still gets into trouble from time to time, fails to take responsibility and blames others for his shortcomings or bad behaviour.
In 2003 O’s school funded an Integration Funding Program which provides a special needs to teacher to expend additional hours at the school. This teacher is placed in O’s class and is able to offer further assistance to students with needs such as O.
The father says that there are significant differences between his home and the mother’s home. He raised concerns that while O is at the mother’s home his living arrangements are largely unstructured and consist of watching videos and playing with his Game Boy. The father accepts that the mother does on some occasions take the children to the movies and the swimming pool.
Part of the father’s case is that he has concerns for the development of the other two children, E and B. He says that he has been concerned about E’s development in that it did not match that of other children her age. He also expressed concern about her lack of progress with toilet training, about her poor level of speech and articulation and her weight. In mid 2002 the father became more concerned about E’s increased weight and her slow speech and feared that this would be a social concern for her. He took issue with the mother enrolling E in school in 2003 and felt that she would not be ready to start school.
The father sought advice from the Department of Education in relation to the concerns he had for E. The father arranged an interview with a clinical psychologist, who conducted an assessment in three parts. The father says that the mother was reluctant to attend due to her TAFE course as she would not be able to get the day off but the mother agreed to attend the initial interview. One C B later prepared a report. The report contained three recommendations in relation to E’s continuance at Pre-School, her speech and her weight. The father recalls asking the mother whether or not she proposed to follow up on the recommendations of the report and she indicated to him that she would not as there was nothing to worry about.
The father says that he took it upon himself to follow up on the recommendations of Ms B and during contact in November 2002 he took E to Dr F K at M. Dr K measured E’s weight and found that it was excessive and recommended further investigation. The father also took E to a speech pathologist at B. Ms Z, the speech pathologist, assessed E and the father says that following that assessment he took a more proactive approach to E in that he encouraged her to engage conversation by asking her questions and encouraging her to speak to him and others.
On 7th February 2003, when the father arrived home, he says that K told him that E’s hair had been cut off and that both E and B had head lice. The father said that E’s hair had been unevenly cut and asked E who did this to her hair. He said she told him it was the mother who had cut her hair like that. The father said that he telephoned the mother the following day to express his disgust with the mother for what she had done to E’s hair. It was his evidence that the mother told him to “fuck off” and then hung up the phone.
The following day the father telephoned the mother again and informed her that he was keeping the girls for an extra day because he wanted to take them to a doctor about the head lice. He also wanted to take E to a hairdresser. The father was unable to get a hairdresser to tidy up E’s hair.
The father went to the C Medical and Dental Centre where the girls had previously attended and consulted with Dr J S who confirmed in a medical certificate that the girls had head lice. The father also made further enquiries about E’s weight and the doctor suggested that a blood test should be carried out.
The father says that during contact visits with E he notices her excessive eating and describes her eating habits as gluttonous. The father also expresses concerns that E’s emotional needs are not being met by the mother and that they are being negatively affected. He recalls a conversation with E and claims that she had told him that she did not love him because of what her mother said to her when she told her that she loved her father. It is alleged that the mother said to E “Yes you love Daddy E but I don’t know why”.
The father has also concerns for B. He says that B was still wearing nappies at the age of 5. The father claims that on at least 6 occasions when he arrived at the mother’s home to pick up the children or return the children or to collect something from the garage he noticed that the girls were wearing full nappies.
In April 2002 the father and K approached B’s Year 1 teacher and they were advised that she was experiencing some reading difficulties. The father claims that he received a phone call from K that B called her father’s home and told her that she was at home by herself. The father recalls that he had a conversation later that day with the mother in relation to leaving B on her own at home. He says that the mother told him to “it is none of your business” and told him to “fuck off”. The father also deposes that B has told him during contact visits she said “Mummy has told me not to ring if I am alone”.
The father says that the mother has not kept him informed about B’s school reports. He had to make contact with the school to obtain copies of the reports. Further, in February 2003 the father learned that the mother had unilaterally changed B’s school when he visited the school. B had told him that she attended W R School at St H’s P and when the father looked at B’s school record the name of the father was left blank.
Later in February 2003 the mother gave to the father a note in response to the father’s letter of 10th February 2003. The contents of that letter were that the mother had taken E and B to Dr F who found in an assessment that the B and E had no visual defects, E’s blood test were negative and that she has no visible medical problems. All three children were assessed as susceptible to diabetes.
Letters have passed between the parties in relation to E’s weight issues. Following the passing of these letters the father made contact with Dr Freeland regarding E and he advised him that E has an above normal insulin level and that it is not a problem but it does need to be monitored. He also said that she had an emerging insulin problem and should consult with a dietician. The parties had some discussions regarding an appointment with a dietician but it was indicated to the father that an appointment had been made with the public hospital and there was some delay of 6 to 8 weeks. The father suggested that the mother attend upon a private dietician but he did not receive a response.
A large part of the father’s case is that the mother exerts no proper parental control over the children. The father raises as a matter of concern that the mother permits their daughters to watch videos that are not rated for children of B’s age. He says that B was permitted to watch “Jawbreakers” which showed a very graphic rape scene. He goes on to say that O is allowed to sit up late and watch movies.
The father says that the yard of the mother’s home is unfenced. When he collects the children at contact periods they are let free to play in such surroundings and that during their playtime the mother does not watch them.
The father says that the mother’s attitude towards the children is poor. He cites as an example that when O was a baby he was scalded on his hand by a steamer that was used to heat water vapour by the mother and she left it on the floor and O crawled into it. He says that the mother did not take responsibility for the accident and said it was O’s fault.
The father gave oral evidence. In his evidence in chief he stated that his address was now 16 H Place, M NSW. He said that he had only noticed a small problem with B on contact, in that she sometimes refused to wash her hair.
The father said that O has his own room at the father’s home, and he sleeps in that room every night. He has a small problem with doing his household chores, and he and Ms S have to remind him to do them.
The mother’s counsel, Ms Snelling, subjected the father to an intensive cross-examination. The father said that Ms S’s daughter, E, who is aged 18, is able to look after the children when necessary. She is an assistant in nursing by occupation.
The father expressed his concerns about the children’s weight. He said that his family contained some large people. O is a large boy. E, he said, had put on 10 kilos. She has an elevated insulin level.
In cross-examination by Mr Harper, counsel for the Children’s Representative, the father confirmed that he wanted E and B to live with him. He said that E had said that she wanted to live with him, but he conceded that B had said that she preferred to live with her mother. The father conceded that if the girls came to live with him there would be an emotional impact on them. There would be a form of grieving.
The father said that he would offer the mother contact on 4 weekends out of 5, and all of the school holidays, except for a period of 4 weeks. He said that he hands all of Os’ school reports on to the mother. He sees it as important to keep her involved in O’s progress at school.
The father’s cross-examination continued on the second day of the hearing. He said that O liked to watch a lot of television, and he will forget about his homework if he is not reminded. He tends to overdo things like Pokemon games, and the father has to stress on him a need for moderation.
The father said that they needed to encourage O’s physical activity. They also needed to encourage him to read. The child is a good reader, but when he is playing Pokemon he does not read.
They also have to monitor O’s hygiene. The child says that he only has to have a shower every second day, but he requires the children to shower daily.
The father said that O had a problem with sharing possessions. He was surprised to see the comment in the Family Report that O was “lacking in a sense of belongingness”.
The father’s partner, Ms S, confirmed in her oral evidence that he relationship with the father was a permanent, long-term relationship. She and the father are engaged to be married. She agreed that her son B spoke harshly to O on one occasion.
When cross-examined by Ms Snelling, Ms S did not agree that O was a difficult boy to deal with. He has a tendency to obsess over things that interest him. He is developing a sense of humour.
Ms S was of the view that O’s situation was permanent. He will have difficulty with interpersonal relations.
As far as any issue of the risk of abuse is concerned, Ms S said that O is never left alone with her son B. B will not stay in the same room as O since the abuse allegation was made. She said that she had taken B for some counselling. He was angry and confused about the allegations that were made against him. She said that B and O do not have verbal altercations.
Dealing with her relationship with the two girls, Ms S said that she considered she had a good relationship with E, and her relationship with B was “growing”.
Mr Harper of counsel subjected Ms S to a detailed cross-examination about her son B. She said that he goes to a different school to O. He is in Year 9 at school. He has lived with her since May 2003. She said that he has never been suspended by his school.
Ms S said that she told B about the allegations against him. She showed him the affidavit. He denied the allegations. She said that he was very upset, he actually cried. She ended up getting some counselling for him.
Ms S said that B’s behaviour had been negative since August of 2003. His behaviour had improved in recent weeks. She said that B and O are rarely together. She makes a point of keeping in regular contact with B’s Form Master at school to see how he is progressing.
Mr Harper asked Ms S if it was realistic for all of the children to live together. She said that it was, as they were only proposing that the three A children live with them from Monday to Friday.
Ms K Louise P, psychologist, gave evidence about her treatment of O. In oral evidence in chief she said that she had seen O only once in 2004 and two or three times at the end of 2003. She believed that he was now doing quite well at school. She said in cross-examination that she had been treating O for about two years. She said that she had not had the opportunity to speak with O’s mother about him. She would be happy to do so.
The mother’s case
The mother’s case is that the father continues to perpetuate a hostile attitude toward her. She says that the father’s current living arrangements are not appropriate for the children. A large part of her case is that the children are exposed to abuse and other forms of mistreatment from the father’s new partner’s child, B. The mother has filed a Notice of Risk of Child Abuse.
The mother raises concerns about the children’s safety whilst they are in the care of the father. On 7th September 2003 the mother claims that B had told her that after contact with the father O had been picked on by B calling him a girl and a “wuss”.
The mother gave oral evidence. She said in her evidence in chief that she had told the father she would talk to Ms P, the psychologist. She said she got a message, and stayed home waiting for a call, but Ms P did not telephone her.
The mother says that she rang and tried to speak to Ms P, only to be told that she was not available to speak to her.
In cross-examination by the father’s solicitor, Ms Lansley, the mother said that she believed that O’s problems were 50% due to Asperger’s syndrome, but that was not the only cause. She said that when O went to live with the father, neither of them set a time limit on his stay there. Her view was that O’s schooling might have improved but his social skills have not. He has lost his bond with his sisters, because he has been apart from them for two years.
It is the mother’s view that O will need attention all his life. When he is in his thirties and forties he will still need correction with social etiquette.
Turning to the subject of B, the mother said that she did not have a positive view of her father. She constantly draws pictures of her father behind bars. She has said, according to the mother, “mummy’s home is the good home, Daddy’s home is the bad home”.
The mother’s evidence resumed on the third hearing day. The mother said she attends TAFE at U two full days and two half days a week. She travels into town on the train. She drives the children to school and then catches a train at 8.25 a.m.
It is the mother’s opinion that B has been very much affected by “all the fights and bickering that has been going on for the last 18 months”. She says that she helps B with her homework.
The mother said that she had been advised that E displayed the pre-symptoms of diabetes. She agreed that obesity is a serious health risk, but she denied that E was obese. She said that E was overweight.
In answer to cross-examination by Mr Harper, the mother said that she had been in the same home since 1996. The house has four bedrooms. She lives there with the two girls. She has enough bedrooms for the children.
The mother said that she did not have any stresses over B’s progress at school. She said that the father was particularly interested in the children’s schooling. That was one of his strengths, she said. She pointed out that she was his ex-wife and could be expected to be biased against him.
The mother said that B has said that she does not want to have contact with her father. She has said, “I hate Daddy. He won’t let O come home”.
The mother went to say that in general terms she did not think much of her ex-husband as a father. She said that O has difficulty relating with his sisters. She had made inquiries about fancy counselling for all of the family.
The mother said that O needed to go and stay with his father at the time that he did. He felt that his father did not love him any more because he had another family.
The Family Report
Ms J S, a Regulation 8 Welfare Officer, prepared a Family report at my direction. Ms S described O as expressing positive views about both his parents. When O met his two sisters, they greeted each other warmly. When Ms S asked the children about their wishes, she received different responses from the children:
“E said that she sometimes felt she wanted to live with her father, B said she definitely wanted to live with her mother and O said he was unsure.” [1]
[1] Family Report, page 13
The Welfare Officer observed the children with both parents, and also in company with Ms S. When the children were with the father, Ms S commented that:
“Everybody seemed a little self conscious, including the children. However, the ambience was quite pleasant and the family members behaved in a friendly, responsive manner with each other.”[2]
[2] Family Report, page 15.
When Ms S observed the interaction between the mother and the three children, she described the mother as seeming a little self-conscious. Nevertheless, she felt that the atmosphere was calm and the children seemed relaxed. Although appearing self conscious, the mother seemed conscious of the children’s needs.
“During the family play, B and E became a little competitive with each other and their mother spoke to them firmly and effectively, quelling the dispute.”[3]
[3] Family Report, page 16.
In her assessment, Ms S described both parents as “caring parents who are each capable of providing reasonable care for their children”.[4] She described the father as genuine and earnest in his concerns, and she stated that it was to his credit that O’s condition had been identified and appropriate services had been put in place, with positive effect.
[4] Family Report, page 17.
Ms S did not believe that the father’s allegations about the mother’s lack of care for the children had been made out on the evidence that she had gathered from the Report. Ms S did raise some concerns about the mother’s expectation of her children’s abilities to make their own decisions about residence and conduct and “gave an impression that she places rather a lot of responsibility on their shoulders”.[5] She gave the Welfare Officer of a lack of focus on the children’s sibling attachments and an underplaying of the disruptive effects of changing residence and school.
[5] Family Report, page 18.
Ms S expressed firm views about the likelihood of the two girls going to live with their father:
“They have lived with their mother all their lives and appear to identify most strongly with living in their mother’s home. E’s wish to reside with her father may reflect a wish to spend more time with him, but she is considered too young to understand the implications of such a move. B, while sounding fond of her father, expressed a firm wish to remain with her mother and there seems no reason to contradict this expressed wish. Therefore, there is little to support the two girls joining O in residing at their father’s home…”[6]
[6] Family Report, page 19.
The Welfare officer felt that O, in expressing a wish to live with his mother, seemed more motivated by a need to be with his mother and sisters rather than by a desire to move away from his father. She felt that the boy had a positive view about living with his father and would be likely to cope if the Court were to decide that he should continue to live with his father.
Ms S noted that there were strong attachments between the children, who interacted with each other in a warm and intimate manner. She felt that they were suffering some stress at being separated from each other.
In summary, Ms S took the view that the father’s proposal for the three children to reside with the father at his residence seemed to be the least favourable option. Whether the children should all live with the mother or O should go on living with his father needs to balance O’s needs to have minimal change to schooling and routines against the wish of the children to be together.
The parties required Ms S to be available for cross-examination. She told Ms Lansley that she thought O was socially immature when she saw him. She expressed the opinion that the degree of argumentativeness between the parents had increased.
In cross-examination by Mr Harper, Ms S referred to the allegations that Ms S’ son B had behaved inappropriately with E. She commented that since the allegations were raised, neither of the girls had made any further allegations about B.
Ms S felt that E had a strong identification with her father, but B identified more strongly with her mother. She went on to say that, generally, she felt that the father was more likely to play a role in the children’s lives.
When cross-examined by Ms Snelling for the mother, Ms S expressed the opinion that she thought that O was thinking about the issues. She felt that he was saying very clearly that he missed his sisters but was unsure about returning to live with his mother.
The parties’ submissions
Mr Harper, for the Children’s Representative, submitted that O should continue to reside in the father’s household, but that B and E should stay living with their mother. He put to the court that contact should be in the terms of the father’s alternate proposal in his application, that the children should spend 3 weekends out of 5 with the mother.
He further submitted that the parents should attend a parenting after separation course and that the mother should make an appointment to see K P as soon as she could do so. He submitted that there should be an order for adult supervision when the children were in the care of the father.
Mr Harper made the strong submission that O Befits from the structure that the father has provided for him in a structured household. Huis school reports have changed markedly since he came into the care of his father. The arrangement has worked for O. He would be vulnerable if there were a change of his residence or his school.
The father and his partner have sought appropriate assistance for the O and B.
Mr Harper put to the Court that the Children’s Representative was troubled by the potential for B’s relationship with her father to break down. The mother’s evidence was worrying, undermining the relationship between B and the father.
Against this, he submitted, the mother is willing to take suggestions on board. Up to now, her strategy to encourage between B and her father has not been sufficient, but this is not enough to warrant a change of residence.
If E were to change residence and live with her father, he would certainly put in place a regime to change her weight. However, the mother is dealing with the issue of the child’s weight.
For the mother, Ms Snelling submitted that all three children should reside with her. She said that it was common ground that there was an initial agreement between the parents about O, but she submitted that it has not been honoured by the father, who now has a reasonably significant status quo.
It may be that once O was diagnosed with Asperger’s syndrome everyone put more effective programs into place. The mother had obtained her own evidence about this syndrome from a Dr Tony Attwood[7].
[7] The mother gave evidence at the hearing about her inquiries.
The father has criticised the mother for the fact that E is overweight, but the mother has put her on a proper diet, with the advice of Dr Friedlander (see Exhibit 8).
O has exhibited some distress at being in a different household from his sisters. Ms Snelling submitted that the father’s application for all three children to live with him is not realistic. There would be as many as 6 children in the father’s household, including one with special needs. She submitted that both the father and his de facto partner downplay O’s difficulties.
Ms Snelling submitted that there was considerable authority to the effect that children normally Befit from growing up with brothers and sisters. Sibling relationships are common and positive. This is important in this case, where O’s condition creates a difficulty in forming interpersonal relationships. In this case, she submitted, the children have a proven warm relationship.
For the father, Ms Lansley submitted that all three children should live with him. He seeks an arrangement to do with B and E what he has done with O. He wants the children to be with their mother for 4 weekends a month and all the school holidays except for 4 weeks.
Ms Lansley submitted that, as the Children’s Representative has noted, O has improved in a satisfying way since he come to live with his father. He has a team of people around him who are assisting him. O, she submitted, should definitely remain with his father.
She further submitted that Ms S’ daughter E is a young adult who goes to work. Ms S very wisely sought assistance in respect of her son B and the allegations about him. The father is a more structured and more organised person. As the counsellor said, it is not the number of children in the household that is important, but the way the issue is handled.
As far as E is concerned, Ms Lansley submitted that her obesity has been trivialised by the mother. In the child’s family there are people with diabetes, and E is in a pre-diabetic period. She is at risk of diabetes. The mother has been less than diligent in addressing the issue of E’s weight. E’s obesity needs consistency of approach and careful monitoring. Ms Lansley went on to submit that it might well be better to take a positive step now to safeguard E's health. The father can monitor what E eats in his household but not in the mother’s household. E should live with her father and her siblings.
Ms Lansley pointed out that the Father had conceded that the girls would grieve if they left their mother. He would get professional assistance for them.
In short, Ms Lansley submitted that it was in the best interests of the children to live with their father.
The relevant law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (k) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case, the Full Court of the Family Court held that it is the Court’s duty to make relevant findings of fact concerning the case of each of the parties. The Court should then apply each of the relevant sub-sections in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve the child’s best interests. The matters that are listed in section 68F(2) are as follows:
e)Any wishes expressed by the child or children concerned and any factors such as the child or children’s maturity of level of understanding that is relevant in the circumstances;
f)The nature of the relationship of the children concerned with the children’s parents and with other persons;
g)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 parents or from any other person with whom he has been living;
h)The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
i)The capacity of parents or any persons to provide for the needs of the children, including their emotional and intellectual needs;
j)The children’s maturity, sex and background;
k)The need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill-treatment, violence or other behaviour;
l)The attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
m)Any issue relating to family violence;
n)Those orders that are least likely to lead to the institution of further proceedings; and
o)Any other fact or circumstance.
Child abuse
In M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91-979, the High Court set out the basis upon which a disputed allegation of sexual abuse is to be determined in the context of parenting orders pursuant to Part VII of the Family Law Act 1975. In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless satisfied according to the civil standard of proof with due regard to the factors espoused in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There, Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Conclusions
I have given careful consideration to the evidence, including the Family Report. It does not necessarily follow that the Court will follow the recommendations contained in a Family Report (In the Marriage ofHall (1979) 5 Fam LR 609; FLC 90-713). Whilst they are meant to be valuable and relevant material to assist the Court in reaching a conclusion, it does not follow that the recommendations in a report will be accepted automatically.
The wishes of the children are important, and I have considered them. Obviously, the weight to be given to those wishes will depend on each child’s age and state of maturity. Whilst E has given the counsellor a view that she would like to live with her father, I note that she is still only 6 years old, and I do not give her views any great weight. I accept that she wishes to spend more time with her father.
B told the counsellor that she definitely wanted to live with her mother.[8] I am inclined to give her wishes more weight, as she is now 8 years old. O was undecided.
[8] Family Report page 13.
The three children appear to have a good relationship with each parent, and with each other.
I am of the view that B would not respond well to a change in her living arrangements, as she would prefer to live with her mother. It appears that E would cope quite well with living with her father. O seems to have as good relationship with his mother, but a change to his school and his routine would be counterproductive, because of his special needs.
There seems to be no real reason why the children cannot have contact with either parent.
It seems clear that the father has demonstrated a greater capacity than the mother to provide for O’s special needs. The father has introduced a routine and a structure into his life. It seems unlikely that O would have made the progress that he ahs made over the last two years if he had remained living with his mother.
There are no violence issues or any relevant apprehended violence orders.
The parents have different parenting styles. It appears to me that the father’s style has suited O better. It may be that the father would be better able to deal with E’s weight problem than the mother has, although she is now taking more active steps. The Family Report does not recommend placing B and E with their father, and this agrees with my own view. I am in no doubt that O is better off, and will do better, in the care of his father. The father has demonstrated that his approach has been to O’s benefit.
There are always concerns in separating siblings, especially where they have a good relationship with each other. In this case, though, I am satisfied that B is happier with her mother, and E is better off with her sister, no matter in which parent’s home she is to reside. It is apparent to me that O’s special needs are best met by his father, and it is in his best interests that he remains in his father’s care. The children need to spend as much out of school time, and school holiday time, as they can in each other’s company. There is a concern about the allegations about the boy B, but it appears to me that the mother has acted appropriately and responsibly. There needs to be adult supervision when the girls are on contact with their father, not because I see the father as being any risk to the girls whatsoever, but because of the allegations about the boy B.
These are the reasons why I consider that E and B should remain living with their mother and O should remain living with his father.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 December 2004
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