Abatsis and Anjou
[2009] FMCAfam 198
•10 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABATSIS & ANJOU | [2009] FMCAfam 198 |
| FAMILY LAW – Parenting – Aboriginality – relocation – separation of siblings. |
| Family Law Act 1975, Part VII, ss.60B (1), (1)(b), (2)(e), (3), 60CC, 60CC (1), (2), (2)(b), (3), (3)(c), (d), (f), (h), (i), (j), (4), 61DA, 65DAA, 65DAA (1), (2) |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MR ABATSIS |
| Respondent: | MS ANJOU |
| File Number: | CAC 736 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 9 & 10 February 2009 |
| Date of Last Submission: | 10 February 2009 |
| Delivered at: | Canberra (Wagga Wagga sittings) |
| Delivered on: | 10 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogg |
| Solicitors for the Applicant: | Sheekey Williams Solicitors |
| Counsel for the Respondent: | Mr Duff |
| Solicitors for the Respondent: | Thiyama-Li Family Violence Legal Service |
| Independent Children’s Lawyer: | Ms Godtschalk (Counsel) Instructed by Robb & Associates (Albury) |
ORDERS
That all previous Orders in relation to the living arrangements for the children [X] born in 1998, [Y] born in 2001 and [Z] born in 2003 be discharged.
That the father and mother have equal shared parental responsibility for the children [X] born in 1998, [Y] born in 2001 and [Z] born in 2003 (“the children").
That the Father be responsible for making decisions in relation to the day-to-day care of the children when they are in his care.
That the Mother be responsible for making decisions in relation to the day-to-day care of the children when they are in her care.
That the children live the Father.
That while the mother lives in [M], the mother shall spend time with the children as follows:
(a)For 10 consecutive days each gazetted New South Wales school term holiday as agreed between the parties or failing agreement from 1pm on the first Saturday to 1pm on the 10th day of that holiday period with changeovers to take place at [omitted], Dubbo;
(b)For the first half of the summer gazetted New South Wales school holiday periods in 2010/2011 and each alternate year thereafter as agreed between the parties or failing agreement from 1pm on the first day of the holiday period to 1pm on the middle Saturday of that holiday period with changeovers to take place at [omitted], Dubbo;
(c)For the second half of the summer gazetted New South Wales school holiday periods in 2009/2010 and each alternate year thereafter as agreed between the parties or failing agreement from 1pm on the middle day of the holiday period to 1pm on the last Saturday of that holiday period with changeovers to take place at [omitted], Dubbo;
(d)At any reasonable time in Wagga Wagga upon the mother giving the father not less than 72 hours notice of her intention to spend time with the children in Wagga;
(e)Such other times as may be agreed between the parties.
That if the mother relocates to Gosford, the mother shall spend time with the children as follows:
(a)In 2010 and each alternate year thereafter, for the first half of the each gazetted New South Wales school term holidays as agreed between the parties, or failing agreement from 1pm on the first Saturday to 1pm on the middle Saturday with changeovers to take place at [omitted] in Sydney;
(b)In 2009 and each alternate year thereafter, for the second half of each gazetted New South Wales school term holidays as agreed between the parties, or failing agreement from 1pm on the middle Saturday to 1pm of the last Saturday with changeovers to take place at [omitted] in Sydney;
(c)For the first half of the gazetted New South Wales Summer school holidays in 2010/2011 and each alternate year thereafter as agreed between the parties, or failing agreement from 1pm on the first Saturday to 1pm on the middle Saturday with changeovers to take place at [omitted] in Sydney;
(d)For the second half of the gazetted New South Wales Summer school holidays in 2009/2010 and each alternate year thereafter as agreed between the parties, or failing agreement from 1pm on the middle Saturday to 1pm on the last Saturday with changeovers to take place at [omitted] in Sydney;
(e)On the 5th weekend of each gazetted New South Wales school term as agreed between the parties or failing agreement from 8pm Friday to 3pm Sunday with changeovers to take place at [omitted] Sydney;
(f)At any reasonable time in Wagga Wagga upon the mother giving the father not less than 72 hours notice of her intention to spend time with the children in Wagga;
(g)Such other times as may be agreed between the parties.
That each party inform the other of all medical, educational, sporting, cultural and other significant events in each of the children’s lives.
That the father provide the mother with copies of school reports and other information of a like nature including prospective sporting, social and educational events without undue delay and in any event within seven (7) days of receipt of them.
That each party inform the other of the details of any medical and dental and physiotherapy treatment, counselling treatment and the like received by any of the children whilst in that party’s care.
That each party enable the other to purchase at their own expense copies of school photos and any other photos taken at special events including but not limited to dance and sporting events.
That each party provide the other with four (4) week’s prior written notice of any intended change of address for the children and keep the other notified of the child’s address, telephone number, email address if applicable and the like.
That the parties be at liberty to contact the children on [X]’s mobile phone at all reasonable times and the father shall pay for the cost of maintaining this phone.
That the mother ensure that her partner Mr C does not use any form of corporal punishment on the children.
That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised but not earlier than February 2010 for the purposes of the preparation of a family report.
That the Family Report deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the children.
That this matter be adjourned for mention on a date to be fixed not earlier than March 2010.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders and new attachment of consequences.
IT IS NOTED that publication of this judgment under the pseudonym Abatsis & Anjou is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 736 of 2008
| MR ABATSIS |
Applicant
And
| MS ANJOU |
Respondent
REASONS FOR JUDGMENT
Introduction
These settled reasons have been slightly revised from the ex tempore judgment I delivered to the parties in Wagga Wagga on 10th February 2009.
The scope of the issues to be decided in these proceedings is quite narrow. In large measure that is because of the recommendations of the family consultant Ms Lang and also in the light of the evidence of the parties.
The proposals of the parties are polarised but can be very simply stated. The applicant father, Mr Abatsis, seeks to have all three boys live with him. The respondent mother, Ms Anjou, seeks to have the children live with her.
Background
The family consultant, Ms Lang, recommends that the youngest boy ([Z]) live with his mother and that the older two boys ([X] and [Y]) live with their father. Ms Lang acknowledges that this recommendation is made with both diffidence and reluctance.
All parties, together with their legal representatives, as well as counsel for the Independent Children’s Lawyer, agree or acknowledge that if the parties did not live where they currently do – Wagga Wagga in the case of the father, and [M] in the case of the mother (a distance of approximately 900km) - an equal shared care arrangement would almost certainly have been agreed. Geography makes that impossible in the current circumstances.
I should note here that in the course of the hearing I stressed to all present in Court (the parties and their legal representatives, and counsel for the Independent Children’s Lawyer) that whatever orders are made in these proceedings, I will ask Ms Lang to review the relationships of the boys with each of their parents, and as between themselves, in twelve month’s time.
For all immediate purposes it is sufficient to note that Ms Anjou has
re-partnered while Mr Abatsis currently has no partner, although he has had a couple of relationships since separation from Ms Anjou. Ms Anjou’s current partner, Mr C, has a not insignificant criminal record which involves violence and alcohol.[1] He has told the Court (and there is little or no reason to doubt the reliability of his evidence in this regard) that since a disturbing event in March 2008 where he was convicted of offences relating to an altercation with a neighbour (involving a mattock handle), he has been undergoing weekly counselling in relation to alcohol use and anger management.[2]
He confirmed, in evidence, that things have been much better since he has been attending counselling. I deal further with Mr C’s evidence and the issue of family violence later in this judgment.
[1] Ms Godtschalk, Counsel for the Independent Children’s Lawyer, tendered Mr C’s Police Records and the NSW Police Incident Reports without objection, these being marked Exhibits E and G.
[2] For Mr C’s oral evidence of these incidents during cross -examination by Ms Godtschalk, see Transcript (9th February 2009), pp. 70-75. Significantly, Ms Anjou also gave an account of the March 2008 incident during cross-examination, see Transcript (9th February 2009) at pp.59-61, where she stated that although not fearful, she locked herself in their flat whilst the incident occurred, because “I just didn’t want to be out - be a witness of all - of everything…”
A “late-breaking” piece of information given in the course of the trial was Ms Anjou’s indication that she intends relocating to the Central Coast of New South Wales sometime in the not too distant future. Her mother lives at Gosford. Such a move would certainly make time that the boys spend with her – on whatever basis – significantly more manageable. Currently the driving time between Wagga Wagga and [M] is approximately 9 hours – whereas the distance between Wagga Wagga and the Central Coast is somewhat less. Such a practical matter is a consideration under s.60CC(3). I turn now to consider in more detail the reports of Ms Lang with particular focus on the most recent family report, dated 29 January 2009.
Recommendations of Family Consultant
It will be sufficient to note the following, by way of general summary, of matters highlighted by the very experienced family consultant, Ms Lang:
i)Ms Lang notes that both parents deserve credit for their parenting of the boys. Such an observation is important particularly in terms of the requirements of Part VII for the Court to consider the parenting capacity of the parents involved.
ii)Ms Lang also observes that the eldest boy, [X] (who is ten years old) is very closely bonded with and attached to his Father. Next she comments that the middle boy, [Y] (aged seven years) is perhaps the most unsettled of the boys because (and not surprisingly) he seems not to feel secure in his residence and especially with whom he is to live. Thirdly, the youngest boy [Z], (aged five) is, also understandably, quite significantly attached to his Mother.
In more detail, Ms Lang notes the following in relation to each of the children:
[X]:
29. With respect to future living arrangements, [X] stresses “I really want to stay with Dad – we’re doing lots of stuff”. He explains “we do lots of sport like football, motor-bike riding, ice-skating”. He reflects “I reckon my brothers miss me - I miss them too”. [X] remarks that he would prefer to live together with his brothers in Wagga Wagga. He comments “[Y] really wants to be here – [Z]’s not quite sure – he wants to be with Mum, but he wants to be with me and [Y] as well”.
[Y]:
33. [Y]’s presentation is consistent with that observed during the family conference in July 2008. That is, of a sensitive and highly anxious child. He engaged little in the interview. [Y] shyly managed to talk about school and confirmed that he won several awards. He asked to draw. [Y] drew lines around the page without much structure and without comment. It is a strategy often used by overly anxious children to contain overwhelming feelings. He detached from any discussion concerning his family. Given [Y]’s discomfort, I did not persist with the interview.
[Z]:
35. [Z] remarks that he is looking forward to spending time with his father, but adds “I miss Mum”. He comments “I want to live most of the time with Mum, but I’ll miss [X]”. [Z] adds that he would feel “sad” if [Y] were to live in Wagga Wagga and points out “I’d have no brothers around”.[3]
[3] Family Report, 29th January 2009.
I regard [X]’s comments about missing his brothers, and his brothers missing him, of particular significance, noting that I have regard to these views in the context of the legislative pathway, further on in this judgment.
In the course of her oral evidence, and through her cross-examination by each legal counsel and the Independent Children’s Lawyer,
Ms Lang properly laid out each of the respective pluses and minuses that would attach to her immediate recommendation as well as to other scenarios that were canvassed. In particular, she highlighted the possible developmental risks to [Z] should he be separated from his Mother to go to live with his brothers, as well as somewhat similar risks should he be separated from his brothers and continue to live with this Mother.
The remainder of these reasons deals very briefly with the evidence of the parties, (including the evidence of Mr C) and then a somewhat summary consideration of Part VII of the Family Law Act1975 (the Act), in light of the prescriptions of the Full Court in Goode & Goode[4] and Keach & Keach.[5] Although the Full Court’s observations were directed essentially to the conduct of interim hearings, the requirements of the “legislative pathway” are important to follow (to the degree that that is possible) in final hearings.
[4] (2007) 36 Fam LR 422 at p.445 [81] – [82].
[5] (2007) FLC ¶93-353.
Evidence
Having had the benefit of seeing and listening to both parties in the witness box, on balance I have formed the view that Mr Abatsis currently has a somewhat better appreciation of the forces in play (for example as identified by Ms Lang in her second report regarding the relationships between the boys) than does Ms Anjou. This is not to criticise her parenting of the boys. Rather, it is my assessment of what is in their best interests, at this time.
It is certainly an almost impossible judgment to make regarding, on the one hand, the possible risks for [Z] in missing his mother, and on the other hand, to compare the risks of him missing his brothers. In many respects however, this is essentially what the case came down to because the evidence otherwise strongly pointed to the older two boys living with their father.
I should also say that I remain somewhat concerned about the environment in which the boys would live if they were living with their mother and Mr C. I have already mentioned that it is to his significant credit that Mr C is doing well with counselling and anger management assistance following the grave incident to which I have referred already that involved violence and alcohol.
Given the Court’s responsibility under the Act to ensure the protection of the children[6], I would be more comforted if I had evidence of Mr C having been able to deal with his anger and alcohol issues for a significant period of time before any orders were made that would result in the boys spending significant amounts of time in their mother’s care with Mr C. In saying this I have no reason to doubt his evidence of taking the boys fishing and presumably their enjoyment of such activities. There also remains a rather more untested area involving allegations against Mr C involving an alleged flogging of [Y] with a belt. Mr C denies any such action.
[6] See sections 60B(1)(b), 60CC(2)(b), (3)(j) of the Act.
The Legislative Pathway
In Mazorski v Albright (admittedly a relocation case) Brown J neatly summarised the legislative prescriptions in Part VII of the Act.[7] Beginning at [3], her Honour said:
3. The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
4. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
5. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
6. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[7] (2008) 37 Fam LR 518.
Applying these comments of Brown J, and those of the Full Court in Goode v Goode and Keach & Keach, I make the following observations. First, I consider it to be in the boys’ best interests that both parents have equal shared parental responsibility. In my view, given the very good job that both parents have done in parenting these boys, it is imperative that they remain actively and consistently involved in the parenting of the boys. Such an order will be made.
Although this triggers the operation of s.65DAA, the practicalities of the matter negative any operation of either an equal shared care arrangement or an order in relation to substantial and significant time that the boys spend with the non-resident parent.
I turn to consider the primary and additional considerations in s.60CC (2) and (3).
The views of the boys are clear, certainly in the case of [X], the eldest of them. The views of the younger boys can only be given very modest weight, if any general weight at all. I have already canvassed the relationships that the boys have with each of their parents. Moreover as I have already indicated, there is nothing to cavil with Ms Lang’s assessment of the boys’ relationship with their parents. The children have a meaningful relationship with both of them. To their credit, both parents acknowledge the parenting capacities of the other.
In my view, I accept the evidence, somewhat limited as it was that both parents, but especially Mr Abatsis, had the capacity to promote the boys’ relationship with the other parent. Ms Anjou acknowledges the accuracy of Mr Abatsis’s earlier evidence that after separation he invited Ms Anjou, and she accepted his offer, to stay at his residence in Canberra and later in Wagga Wagga so that she could spend time with the boys. They have exercised their parental responsibilities for the most part in a conscientious manner. The proof again is in the lives of their children: no greater testimony to their parenting can be given.
There is nothing before the Court to suggest that their parenting will change, it is certainly not in any way that might be detrimental to the boys. Nor is there any question regarding the ability of either parent to provide for the boys’ needs. Such matters, albeit briefly, deal with s.60CC(3)(c), (d), (f), (i) and s.60CC(4).
Any change in the children’s circumstances will impact potentially and almost necessarily and inevitably on their relationships with others -parents, siblings and friends. That will occur to some degree in any event when Ms Anjou moves from [M] to the Central Coast. Those questions of stability in [M] are not insignificant in relation to Aboriginality but, in my view, they became somewhat moot because of the [proposed] move to Gosford.
I have already dealt with the issue of the practicality, and inferentially the costs, of the children spending time with their parents given their geographical locations - current and proposed. There is evidence that Mr Abatsis has been sensitive to a significant degree of the Aboriginality of his sons. I agree with the submission that there is no evidence, nor even any hint that he will not continue to honour his parental responsibilities in relation to the important indigenous heritage of the boys.[8]
[8] See sections 60B(2)(e) and (3), and s.60CC(3)(h) and (i) of the Act for the legislative considerations in relation to Aboriginality and culture. See also Ms Lang’s Family Report released 29th January 2009, particularly at paragraph 42, where she discusses the important issue of the children’s Aboriginality. I note in oral evidence, Ms Lang said that Mr Abatsis informed her that the Indigenous community liaison representative at the children’s school in Wagga Wagga was actually from the same community as Ms Anjou (from the [K] tribe), which Ms Lang said was “very promising”. See Transcript (9th February 2009), pp. 21, 22.
I have dealt earlier with the limited issues related to violence, pursuant to sections 60CC(2)(b) and (3)(j), and my concerns in relation
Ms Anjou’s household with Mr C, due to Mr C’s not insignificant and not-to-distant criminal records involving alcohol and instances of violence. As I have already indicated, there will be a formal review of the parenting issues and related matters in 12 months’ time.
If I may, I commend the parties for their parenting and the way they have conducted themselves during the proceedings. That too, is a positive reflection on the lawyers involved. I thank all who have been involved in the trial and in the measured way in which it has been conducted.
Formally I make orders as sought by Mr Abatsis, with the addition of the order for a review. I consider those orders to be in the best interests of the boys.
I wish both the parties and the boys the very best for the future.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 23 March 2009
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