Alfred and Angus
[2012] FMCAfam 1157
•26 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALFRED & ANGUS | [2012] FMCAfam 1157 |
| FAMILY LAW – Children – four siblings – consent orders entered into by the parents in 2009 with all four children living with the Father – in August 2010 older twins (girls) remained living with the Mother – Father brought application in March 2011 – final orders made separating siblings, older twins to live with the Mother, younger two children to live with the Father – best interests of the children considered. |
| Family Law Act 1975, s.60CC |
| MRR v GR (2010 HCA 4) |
| Applicant: | MR ALFRED |
| Respondent: | MS ANGUS |
| File Number: | BRC 3324 of 2008 |
| Judgment of: | Baumann FM |
| Hearing date: | 3 February 2012 |
| Date of Last Submission: | 3 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 26 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nielson |
| Solicitors for the Applicant: | Journey Family Lawyers |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Lyons |
| Solicitors for the Independent Children’s Lawyer: | Feeney Family Law |
ORDERS
That all previous Orders and Parenting Plans be discharged.
The Mother have sole parental responsibility for the children [W] born [in] 1997 and [X] born [in] 1997.
The Father have sole parental responsibility for the children [Y] born [in] 2000 and [Z] born [in] 2003.
That notwithstanding the provisions of Order 2 and 3:
(a)The Mother shall be responsible for the daily care, welfare and development of the children while they are living or spending time with her; and
(b)The Father shall be responsible for the daily care, welfare and development of the children while they are living or spending time with him.
That the children [Y] and [Z] live with the Father.
That the children [Y] and [Z] spend time and communicate with the Mother at all times as may be agreed in writing between the parties and failing agreement as follows:
(a)Each alternate weekend from 9.00am after school Friday to 4:.00pm Sunday; and
(b)For half of the mid-year school holidays and for two weeks in the end of year school holidays each year and otherwise the Mother’s time be suspended during the remainder of the school holidays when the children are with the Father.
That the children [W] and [X] live with the Mother.
That the children [W] and [X] spend time and communicate with the Father at all times as may be agreed in writing between the parties and in accordance with their expressed wishes.
That the Father at his own cost be at liberty to provide and maintain a mobile telephone for [X] and [W].
That the Mother be restrained from preventing [X] and [W] from communicating with the Father by mobile telephone.
That for the purposes of Order 8 the Mother will ensure that if the children express a wish to spend time and/or communicate with their Father that she will do all acts and all things necessary to ensure that this occurs as soon as reasonably practicable.
The parties agree that if Father’s Day falls on a weekend when the children are due to spend time with the Mother, that the Mother’s time be suspended for the day of Father’s Day, such that the children are able to spend the day with their Father from 9am Saturday to 5pm Sunday.
The parties agree that if Mother’s Day falls on a weekend when the children are due to spend time with the Father, that the Father’s time be suspended for the day of Mother’s Day, such that the children are able to spend the day with their Mother from 9am Saturday to 5pm Sunday.
For the purposes of changeover, unless otherwise at school or agreed, changeovers will occur at the Hungry Jacks at [omitted] on the basis that the parents or their nominees, being an adult known to the children, shall effect handovers in the car park at Hungry Jacks [omitted] and shall not during handovers alight from the car; approach each other; make inappropriate gesture or remark to each other and shall otherwise do all things necessary to facilitate to children moving quickly and safely from one car to the other.
Family Counselling
That the parents do all and all things necessary to attend upon and ensure that the children attend upon Ms O, Young Minds for the purposes of Family Counselling specifically to address the relationship between the siblings.
For the purposes of Order 15, both parties will share equally the cost of such counselling and follow the recommendations of Ms O.
That the parents do all and all things necessary to attend upon Mr W and ensure that the children attend upon Mr W for the purpose of, but not limited to, explaining the effect of the Orders.
Should the children’s birthday fall on a day when the children are not spending physical time with the parent, then the parent shall spend time with the child for their birthday on the next occasion of seeing the children (i.e no particular allowance for ‘make-up’ time). The parent whom the children are not with on their birthday is at liberty to phone and speak to the child on their birthday.
That each of the parties ensure that the other party is promptly notified of any serious illness, injury, medical or like emergencies suffered by the children, including the name, address and telephone number of the relevant hospital or medical practitioner.
These Orders shall be sufficient authority for each party to obtain from the children’s medical practitioner, health carer or counsellor, any information or report regarding the children’s health upon request and cost of that party.
These Orders shall be sufficient authority for each party to obtain from the children’s school, any information and documentation regarding the children’s progress and include school reports, newsletters, and school photographs upon the request and cost of that party.
The parties agree not to:
(a)Denigrate the other party or their family in the presence of the children or directly to the children;
(b)Discuss the Family Court Proceedings with the children or provide the children with documentation from the Federal Magistrates Court Proceedings.
That in respect of specific issues:
(a)Each parent is to keep the other informed about the health, welfare and education of the children;
(b)Each parent is to keep the other informed of an address, which could be their address or a post box and telephone number and advise the other parent within forty-eight (48) hours if those details change;
(c)Each parent is to keep the other informed of the children’s place of education and details of any medical, dental or other health provider who treats the children when they are in their care.
That in respect of Dispute Resolution, that the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution Practitioner or the nearest Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that they are unable to for any reason to have an appointment with a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise the Father in writing details of their fees, experience and availability;
(d)The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(e)If the Father fails to choose then the Mother may choose.
IT IS NOTED that publication of this judgment under the pseudonym Alfred & Angus is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3324 of 2008
| MR ALFRED |
Applicant
And
| MS ANGUS |
Respondent
REASONS FOR JUDGMENT
Introduction
Twins [W] and [X] (now aged 15 years) and [Y] (aged 12) and [Z] (aged 9) are the four children of a relationship between the Applicant Father Mr Alfred (aged 39) and the Respondent Mother Ms Angus (also aged 39) who finally separated as a couple in July 2006 after a marriage of some 10 years.
As the history set out later in these reasons reveals, the relationship was generally unhappy and although the parties, upon separation, reached an informal agreement that the four children would live with the Father and spend time with the Mother (which was the foundation for final consent orders made by the Family Court of Australia on 27 April 2009), the arrangements did not sit comfortably with the Father.
In August 2010, the older twins remained in the care of the Mother, contrary to the orders and despite attempts to mediate, the Father, by 23 March 2011, had decided to file an Application seeking that the four children live with him. The Mother, who was unrepresented at the final hearing and through these proceedings, opposed those orders. The procedural history that preceded the hearing in February 2012 is set out below.
Competing proposals
Father
By the conclusion of the trial, the Father’s primary proposal (tendered as Exhibit 8), which appears as Appendix One to these reasons, sought that the children [Y] and [Z] live with the Father and that the twins [W] and [X] live with the Mother. This adjusted proposal does, in my view, reflect positively on the Father who altered his position after hearing the evidence of Mr W (the Family Report writer). The Appendix sets out the time [Y] and [Z] should spend with the Mother and, if [X] and [W] expressed a wish to spend time with the Father, then the Father proposed:-
“From 9.00am Saturday until 5.00pm Sunday each alternate weekend commencing at such time that the children’s counsellor deems it appropriate in their professional opinion.”
To provide some emotional support for all the siblings, the Father seeks orders that:-
a)the children have counselling;
b)[X] and [W] have a mobile phone provided and maintained by the Father; and
c)The Mother “be restrained from preventing [X] and [W] communicating with the Father by mobile phone”.
Mother
The Mother’s primary proposal was that all four children live with her, or alternatively that the four children live with the Father. I am satisfied it was the Mother’s intention to convey to the Court the impression that as might be considered usually optimal, that the siblings not be separated. For the reasons which I explore further in these reasons, I do not accept the Mother was entirely genuine in her proposal – as she well knew that the older siblings [W] and [X] would not remain in the care of the Father, even if ordered. More honestly, the Father (with some courage) came to accept the reality of this situation, albeit reluctantly. The Mother’s proposal, in her own words, is Appendix Two.
Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) submitted by way of final order (see Exhibit 9 which is Appendix Three) that the children [W] and [X] should live with the Mother and that she ought have sole parental responsibility for these two children, whilst [Y] and [Z] should live with the Father, and he should have sole parental responsibility for those children.
I can indicate that the Court was greatly assisted in this matter by the engagement of the ICL and the participation by Counsel for the ICL, Ms Lyons, at the hearing.
Statutory principles
The orders I am asked to make are parenting order and as such the Court must:-
a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.
b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.
c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)) and must also consider the evidence in light of s.60CC(4) and (4A) of the Act.
d)In certain circumstances apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
e)When considering whether equal time or substantial and significant time is in the best interests of the child, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA(1) and (2) and MRR v GR (2010 HCA 4).
The Court is aware that since the hearing of this matter in February 2012, s.60CC(2) and (3) of the Family Law Act 1975 have changed, however the Court must apply the law as it stood at the time of the hearing.
Before the Court examines the evidence within the matrix of the relevant considerations, it will assist the parties to understand the pathway adopted in reaching its ultimate order, to make some specific findings after setting out a contextual history.
Historical context
Although much of the history has some controversy attached, the chronology which follows is generally undisputed. In this case, in my view, little is served by examining the history as far back as 2006. As already mentioned, the parties agreed to consent orders in 2009 which broadly were followed until the events of 2010.
In the history which follows however, statements of fact should be construed as findings of fact.
When the parties married in 1996, the parents were both aged 22 years. They had no children, however the twins were born in 1997, with [Y] and [Z] being born thereafter in 2000 and 2003 respectively.
In June 2003, the parties separated for about eight months. The Mother was pregnant with [Z]. The tensions and disharmony in the relationship made the cohabitation for both parents unhappy and despite efforts to make the marriage work after the birth of [Z], these parents were regrettably unsuited to a long term relationship with each other.
In July 2006, the Mother left the family home with the four children. It is apparent that the Mother, in particular, was unsettled. She describes herself at the time as needing some space to find herself. She had other romantic interests. Within a day or so of final separation, the Mother returned the children to the Father and shortly thereafter the Mother commenced living with her boyfriend. The Father took on the role of primary carer to the children. At final separation they were aged 9 (twins), 6 and almost 3 years. This was a very difficult time for the family and particularly for the children.
The Father says, and I accept, that between the time of separation and early 2008, the parents informally arranged for the children to spend time with the Mother on three or four occasions each week – but rarely overnight. Between April 2007 and December 2007, when the Mother moved to [omitted], the children only saw their Mother approximately twice. The Father alleges the Mother was disinterested. The Mother says otherwise. What is clear is that the Mother was choosing to live a life inconsistent with the demands of being a full time carer – or even sharing the care of the children.
The Father, I am satisfied, did his best to provide quality daily care to these children, who must have been extremely confused by the behaviour of the Mother. The Father had changed his work obligations to devote himself to his role – almost as a single parent.
After less than optimal time was spent between the children and the Mother (and in circumstances where it is reasonable to infer some lack of commitment by the Mother since separation where she took no decisive action to enforce the children’s rights), it is agreed that in October 2008 the Mother initiated the involvement of Legal Aid. The resultant discussions caused the parties to consent to an order being made by the Family Court of Australia on 27 April 2009 in the following terms (being Exhibit 10) namely:-
“1.That except as otherwise stated, the father and mother have equal shared parental responsibility of the major long term issues, relating to the children [W] born [in] 1997, [X] born [in] 1997, [Y] born [in] 2000 and [Z] born [in] 2003 including but not limited to the children’s education, health, changes to living arrangements.
2.That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and that each party respond in a timely manner.
3.That notwithstanding the provisions of paragraph 1, the father and mother each be responsible for the daily care, welfare and development of the children whilst the children are living with or spending time with the parties.
4.That the children live with the father and spend time with and communicate with the mother as maybe agreed or failing agreement as follows:
Commencing immediately:
4.1Every Tuesday and Thursday night from after school until 6:45pm
4.2Each week from 7:45 until 5pm on a Saturday or a Sunday alternating
4.3Commencing Easter 2009 half of all school holidays provided the mother successfully completed stages 4(a), (b), above in full on a satisfactory and regular basis.
4.4By telephone at all reasonable times.
4.5Half of special occasions such as birthdays of the children, Easter and Christmas.
5.For the purposes of changeover the children to be dropped off and collected from the Coffee Club at [omitted] or some other neutral venue as agreed to between the parties.
6.That each party be able to communicate by telephone with the children at all reasonable times when they are living with the other party and that each party permit the children to telephone the absent parent at all reasonable times and facilitate those calls.
7.That the father authorise the mother to seek and receive as may be necessary any medical information regarding the child and to effect this the mother authorises those from whom such information is sought and who are required to provide that information to provide the mother at the mother’s cost as soon as is reasonably possible.
8.That the parties authorise each other and take all steps necessary with the principal/secretary of the school at which the children are enrolled to enable the other party to obtain from the children’s school or have the school deliver to him or her, at his or her cost, originals or copies of all school reports and any other reports for the progress and behavioural issues in relation to the children, photographs, circulars, notices and details for functions, parent teacher nights and other activities as soon as practical after they are received, sent or produced by the school.
9.That the mother and father each be at liberty to attend all school events, extra curricular activities including but not limited to sports days, carnivals, concerts, plays, fetes, parent teacher nights and any other events undertaken by the children.
10.That the mother and father shall inform each other of any medical emergency or injury which may have been suffered by the children within a 2 hour period or as soon as is reasonably possible.
11That both parties keep each other informed at all times of residential address and contact phone numbers and to advise each other of any changes within 24 hours.”
The orders were complied with generally, and it is to be noted that the order made no provision for overnight time. The Father, to his credit, facilitated and supported overnight time commencing after a period of contact including Tuesday and Saturday nights from early 2010.
The communication between the parents had not greatly improved. High levels of mistrust and a lack of respect existed. I am satisfied that during 2010 the Mother began a course of conduct when the children were with her, designed to encourage the children to express a view that they should live with the Mother rather than the Father. The Father says he noticed changes in the behaviour of the twins in about mid-2010. It is hardly surprising that the older children, both girls, craved more attention from their Mother considering their developing emotional needs and, the sense of loss they were likely to have felt from the Mother’s absence in their life in a significant way after separation.
Almost predictably, in late July 2010 and during August 2010, [W] and then [X] expressed a wish to live with their Mother and by at least the end of August 2010, both girls were living full-time with their Mother and were spending no time with their Father or in the former family home still occupied by the Father and the younger siblings.
The Father continued to facilitate the younger children spending time with the Mother in accordance with the orders – despite the Mother’s reluctance to engage in mediation initiated by the Father through Legal Aid in October 2010.
The Father says, and I accept, that on or about 3 March 2011 [Y] informed him (in front of the Mother) that he wanted to move in with the Mother. The Father was concerned about whether the Mother had been manipulating or pressuring the child, and as a result of those concerns, the Father wrote a letter to the Mother on 9 March 2011 stating that he would be ceasing the time for [Y] and [Z] unless the Mother provided him with a written undertaking that she would return the children. In view of the Mother’s past actions, I would not regard his cautious approach as unwarranted. The Mother refused to provide such an undertaking.
On 23 March 2011, the Father filed proceedings in this Court. Again, I make the observation that, knowing he was bound by the orders of 27 April 2009, he quickly brought proceedings. This is to be contrasted with the Mother’s unilateral actions in mid-2010 when she took no steps to seek a variation of the orders in respect of where [W] and [X] lived.
The Application filed was returnable before Federal Magistrate Slack on 11 May 2011. On that date, his Honour made orders that [W] and [X] live with the Mother and that [Y] and [Z] live with the Father and that they spend time with the Mother “from after school Friday until before school Monday each alternate week”. Appropriately, Federal Magistrate Slack ordered the preparation of a memorandum of advice by a Family Consultant and otherwise adjourned the matter to 20 June 2011.
On 7 June 2011 Family Consultant Mr S provided a very detailed memorandum. Although the 31 paragraph document has the appearance of a “Family Report” it was not one. Mr S was not the subject of cross examination at the hearing. It was explained at the hearing, that the process of preparation for the type of advice memorandum helpfully provided by Mr S, is not comparable with the time and analysis expected for a family report ordered under s.62G. Of course, at the hearing, and through the agency of the ICL, the Court had a family report prepared by experienced psychologist Mr W. The reliance at the trial of the ICL on the report of Mr W does not mean that Mr S’s untested opinions contained in the memorandum are to be ignored. As will be soon explored, Mr S, in my view, was able to correctly identify the Mother’s behaviour as concerning and briefly expressed the foundation for those concerns (and how his memorandum of advice should be understood) when he said:-
“30.I would suggest that a Family Report will be required in this matter and that it will be most beneficial following the girls spending some time with their father. I would also recommend maintaining the same report writer if possible. I would also suggest that both parents should complete a post separation parenting course though I am aware of long waiting periods in their area. I believe that counselling may well be beneficial for [X] and [W] though I am concerned that this may be more useful after some time as [W] in particular could easily see any intervention as a threat to her stance and her relationship with her mother.
31.I believe it is necessary to stress the level of concern that I hold about Ms Angus’s relentless behaviours and her very open desire of all four children to eliminate their father from their lives. While it is possible that Ms Angus will moderate her behaviours once Orders are in place, I am greatly concerned that it may be inevitable that the Court at some stage is faced with the need to severely limit and restrict her time with the children if these behaviours aren’t addressed.”
On 20 June 2011, Federal Magistrate Hughes heard further submissions in the matter and appointed on ICL. Her Honour ordered that the children spend time with the other parent as follows:-
“1.That the children [Y] born [in] 2000 and [Z] born [in] 2003 shall live with the Father and spend time with the Mother as follows:
During school term
a.every second weekend from after school on Friday to before school on Monday, commencing Friday 17 July 2011;
b.on alternate weeks from after school on Thursday to before school on Friday, commencing Thursday 21 July 2011;
During school holidays
c.for the first half of each of the shorter school holiday periods from the end of school on the last day of term until 5.00pm on the middle day of the school holiday period;
d.at such times as may be agreed between the parties in writing.
2.That the children [W] and [X] both born [in] 1997 shall live with the Mother and spend time with the Father as follows:
During school term
a.every second weekend from after school on Friday to before school on Monday, commencing Friday 22 July 2011;
During school holidays
b.for one (1) day during each week of the July 2011 school holidays from 10.00am to 5.00pm on a day to be agreed each week and in default of an agreement, on Wednesday;
c.for half of the school holidays at the end of Term 3 in 2011 to coincide with the time the younger children are spending time with the Father;
d.such additional or alternate times as agreed between the parties in writing.
3.That the Father may telephone the children in the Mother’s care each Tuesday between 7.00pm and 7.30pm on the Mother’s mobile telephone [omitted].
4.That unless otherwise agreed between the parties, all handovers which do not occur at the school, shall occur outside JB Hi-Fi at [omitted].
5.That each parent is hereby restrained from discussing the details of these proceedings with the children and from allowing them to read or have read to them the contents of any affidavit material or professional reports. In the event the children enquire about the proceedings, each parent may answer the questions simply and explain the effect of any orders.”
Importantly, as I soon demonstrate, the Court ordered that:-
“Each parent is hereby restrained from discussing the details of these proceedings with the children and from allowing them to read or have read to them the contents of any affidavit material or professional reports. In the event the children enquire about the proceedings, each parent may answer the questions simply and explain the effect of any orders.”
On 18 July 2011, the Court ordered a psychological assessment report of the parents and a process by which counselling of a therapeutic nature (but reportable to the ICL) was to be activated.
Although alternate weekend time between the Father and the twins did commence as ordered by Federal Magistrate Hughes, by September 2011 those orders had broken down with both [X] and [W] sending letters to their Father expressing opposition to further visits. On 21 September 2011 Mr W conducted interviews for the purposes of the family report. Furthermore, he conducted a psychometric assessment of both the Mother and the Father. His report dated 26 November 2011 was before the Court and Mr W was cross-examined.
When the matter came before the Court on 29 November 2011, the matter was listed for hearing urgently for 2 and 3 February 2012. An order for specific time over the Christmas period was made. A dispute arose on 8 December 2011 as to changeovers. The Mother advised the Father she would not spend time with the younger children over the Christmas holidays.
The Court regrets the delay in delivering reasons. At the conclusion of the trial, the Court was of the view that the Father’s relationship with [X] and [W] had been so damaged – principally by the actions of the Mother – that when the Father no longer pressed for prescribed orders to ever see the twins, the real issue was whether [Y] and [Z] should join their siblings and live with the Mother. The Court thought some further reflection on the Mother’s performance in the witness box, which I would describe as impressive and troubling, might develop an order likely to repair the Father’s relationship with [X] and [W]. Regrettably, that extra time has only reinforced the Court’s opinion that that exercise in repair must await the children having the courage and independence to escape the influence (so far as the Father is concerned) of the Mother, but also has made the Court confidently conclude that the best interests of [Z] and [Y] are served by remaining in the primary care of the Father who has, since 2006, provided a caring, loving and consistently supportive environment to them.
After dealing specifically with the evidence of Mr W, I then propose to deal with the evidence of the parties within the matrix of the relevant s.60CC(2) and (3) considerations.
Before doing so, I make the following general finding as to credit. I found the Father a believable and honest witness, able to make proper concessions and particularly when reflecting on the evidence of Mr W, an impressive focus on the best interests of the older siblings, even though he feels a deep sense of hurt and loss. Having spent so long, single handedly looking after the children it is hardly surprising that he would have a feeling that his efforts are unrewarded by the way in which [X] and [W] oppose time with him. To his credit, his hurt is not demonstrated by anger or vengeance towards the Mother.
I acknowledge the Mother represented herself and is passionate, now, about her role as a parent and as the primary carer before separation. She displayed a sense of “entitlement” to resume that role when she chose to do so. The Mother is a creative person with talents in [omitted]. However I found much of her evidence unreliable and, at times, she was far from child focused and manipulative. She overly involved the children in the proceedings in her quest, and after 2010 the alignment of the twins, fuelled her trying to persuade [Y] to live with her. An example of her attempt to even manipulate these proceedings was her view that she would not return a second day as a result of her work commitments. I regarded her remarks and statements as an attempt to mislead the Court about her availability. She was at times vague and unimpressive.
Overall, I would prefer the evidence of the Father where it differed from the evidence of the Mother.
Family Report
It is not necessary to incorporate significant portions of Mr W’s report in these reasons as there was consistent criticism of the Mother’s insight and her engagement of the twins in the dispute.
Under cross-examination, the expert opined that:-
a)He assessed the Father as capable and child focused. I agree.
b)Although there are no psychological variables with the Mother “that would prevent her from caring adequately for children in her care”, the Mother is not an emotionally robust person and she depends on the emotional support of the children and treats the twins “as her emotional peers”. Although the reports of clinical psychologist Mr H (Exhibit 6) about the Mother’s treatment in 2010 say the Mother met the criteria for a diagnosis of adjustment disorder with anxiety and depressed mood, the Court expert did not feel comfortable in making a clinical diagnosis, save to observer that he agrees the Mother demonstrates some traits of “borderline personality disorder” which is not amendable to change by therapy. Mr W believes the Mother, however, would benefit from supportive therapy.
c)He believes supportive counselling for all four children would be helpful – particularly if directed to the relationship the children have with their parents.
d)Confronted with the reality of the age of the twins and the views they are currently expressing, Mr W opined that making [W] and [X] live with the Father is not the solution and exposed potentially, these adolescents to greater emotional harm than remaining with their Mother.
I found little in the report and opinions expressed by Mr W that was not supported by the evidence overall. I attach significant weight to his thoughtful analysis.
The Mother’s inability to understand the boundaries of involving the children in the dispute is concerning. Mr W says at paragraph 120:-
“…Ms Angus has imparted her own thoughts and feelings about her former relationship with Mr Alfred to [W] and [X]. The children are too young and emotionally unsophisticated to understand this (they would state energetically – as they have to me – that any views and perceptions they have of their Father are the result of their own experiences with him) and Ms Angus does not have the psychological insight to understand it. When I had her return to my office to speak with [me] about these issues, she demonstrated no capacity to me to understand her role in how the twins feel about their Father. She is convinced that it has been their own personal experiences with him that have influenced them against him, but there is simply nothing of any substance to suggest that this has been the case.”
I entirely agree with this opinion, as I do with the balance of that paragraph, namely:-
“…It is noteworthy that when she was speaking to me of how she and the children felt about Mr Alfred that she spoke of the girls and of herself interchangeably. This suggests further that she has no insight into what she has done and what she continues to do.”
A further demonstration of this issue is the Mother’s self prepared trial affidavit and her consistent use, under cross-examination, of the pronoun “we” when referring to her household and the twins.
Primary considerations
In dealing now with the primary and then additional considerations, I choose to do so in a narrative form and rely upon, but do not repeat, findings already made above (including those incorporated in the section of these reasons which deal with the history of this matter). Although [W] and [X] are not mature enough to understand the benefit to them of maintaining and nurturing a meaningful relationship with their Father, the Court has no doubt it is. The Father’s efforts when the Mother made herself less available for those years between 2006-2009 will, it is to be hoped, set a foundation for a more mature relationship with the twins as they reach and journey through adulthood. As they live with their Mother, the Mother will offer guidance and her life experience and the meaningful relationship the twins share with the Mother will enhance that relationship.
For [Z] and [Y], who will live with the Father, they will benefit from the consistency of his care as they have since 2006 and I do not doubt that, unlike the Mother, he actually appreciates the benefit to these younger siblings of maintaining regular time with their Mother. As the next section of these reasons reveals, the challenge is likely to be how to ensure those opportunities are not diminished by the impact of the potential emotional harm created by the Mother’s behaviour.
The children are not at any risk of physical or emotional harm when they are in the Father’s are. Even if, as the Mother claims, his parents interfere, the Father is the primary carer of [Y] and [Z]. As the earlier findings set out, the Mother does in my view present a risk of emotional harm to the children and although the twins seem to have weathered that behaviour and enjoy the more casual yet intense mothering they receive, I am not prepared to make orders for [Z] and [Y] to live with the Mother, as I genuinely hold a concern she would manipulate their thinking against the Father – when there is no basis for her to do so, other than her need to be, and to be seen to be, the primary carer of the four siblings.
The challenge for the Court, in weighing up these two primary considerations, is how much time is likely to continue to foster and nurture the relationship between the Mother and [Z] and [Y], without the amount of time being sufficient for the Mother to adversely influence them.
In this context, I do not ignore, as the evidence demonstrates, the capacity for the older children to influence the thoughts and attitude of the younger siblings. I do not say that [W] and [X] do so at the Mother’s direct request. I sense the twins miss their siblings and, in circumstances where they have made a choice to live with the Mother and spend no time with their Father, getting [Y] and [Z] to say they wish to live with the Mother would:-
a)make their Mother very happy; and
b)enhance the opportunities for them to build a relationship with their siblings.
Additional considerations
Mr W at paragraphs 85 to 93 ([X]) and paragraphs 94 to 107 ([W]) sets out what the girls told Mr W. I accept the accuracy of the reporting. The strength of their expressed views (even if, as I find, they have been shaped in part by the Mother) persuaded the Father to no longer seek a change of their residence. I also take into account the views captured by the counsellor set out in Exhibit 5.
[Y], as the only male sibling, even before the events of Christmas 2011, had indicated the preference to live with the Father but spend more time with the Mother. The Mother’s failure (for that was what I find it to be), to have time with [Z] and [Y] over Christmas reflected poorly on the Mother. Her attempts to explain her actions – and partly blaming the Father are simply not accepted by me. [Y] understandably was upset by his Mother’s lack of thought and commitment. My view is that the wishes he expressed to Mr W about preferring to live with the Father have probably strengthened – as the Father alleges.
[Z], the youngest sibling, is happy where she lives; misses her Mother and older sisters and probably would cope with whatever decision the Court made. At her age and level of maturity, no real weight could be applied to her expressed views and feelings. She is offered stability in the Father’s home and should remain primarily living there.
The relationships the children have with their parents and each other has been explored in these reasons. At a time when the Mother was “finding herself”, the Father on occasion did facilitate time between the children and the extended maternal family. Those actions do him credit. I accept that the children have a relationship with the Mother’s extended family.
The Father’s parents live in the same area as the Father and, as he honestly admitted, when the Mother effectively walked out to pursue her personal interests in 2006, the Father was ill prepared for the enormity of managing four young children and called on the support of his parents. Not only was that understandable, it was sensible. The Mother’s criticisms of the Father’s parents for so doing (and her actions in ensuring the twins adopt her views about them), is yet another example of the Mother’s lack of insight.
It follows from earlier findings that I have formed the view that if the children [Y] and [Z] were to live with the Mother, then there would be a strong likelihood that their relationship with their Father would deteriorate. That cannot be allowed to occur. I have considered the history, and find no evidence that the Father has failed to facilitate or encourage the children’s relationship with the Mother. I find quite to the contrary as far as the Mother is concerned. I remain hopeful that with the counselling the Mother has agreed to undertake (and in that respect the ICL will be given leave to provide to the Mother’s counsellor a copy of the report of Mr W and these reasons), coupled with the conclusion of these proceedings, the Mother may gain some insight and convey to [X] and [W] a level of “approval” for them to re-engage with the Father at some level positively.
There are no practical difficulties which arise on changeovers and the like, save that the Mother does not wish to come into contact with the Father. For changeovers which do not take place at school, a public location is appropriate. I see no need, considering the age of the children and the absence of any domestic violence orders, to require changeovers at a Contact Centre. Not only does it take away the opportunity for that service to offer a placement to a family that needs it, the parents in this case are perfectly capable of restraining themselves from inappropriate comments or gestures as their children pass from one parent to the other.
I have already made findings about the parents’ capacity and attitude to parenting. I was impressed by the Father’s capacity to accept the criticisms levelled against him by his teenage daughters about periods when caring for them, that he spent too much time on the computer and was less available emotionally. He said he could have done better. However, these aspects of his parenting pale, in my view, as negatives when considering the Mother’s attitude to parenting. Whilst relying on previous findings, I record the Court’s significant concern about the Mother’s decision to allow the children to read Court documents or engage them in writing letters as evidence. Her excuses for doing so – particularly in light of the clear injunction ordered by Federal Magistrate Hughes - reveals not only poor judgment but also a failure to give proper recognition to the orders of the Court.
The older siblings have expressed how they prefer their Mother’s parenting style. They are doing well at school and seem to have accepted that they will choose when and how they will engage with their Father in the future. The Mother’s description of the Father’s “controlling behaviour” is on the whole, evidence not accepted. I accept he was more likely to set boundaries and some children just don’t like that. The boundaries were generally consistent with fair parenting. However, of greater concern seems to be the Mother’s personal criticism of the Father’s weight and stricter Christian faith he chooses to adopt (the Father being Presbyterian) and the Mother (a Pentecostal movement). These were weak attempts at being negative – for the sake of it. These are clearly different styles – but leaving aside the Mother’s emotional harm as set out – the day to day physical and emotional needs of these children can be accommodated in either household.
The Mother’s actions in commencing Domestic Violence proceedings against the Father and the Paternal Grandmother – and then withdrawing them – is another example of the Mother’s manipulative capacity. In my view, family violence issues do not arise in this case.
Although I would hope no further legal action would be commenced in the future, I could not discount the prospect that the Mother will be so disappointed that [Z] and [Y] are not living with her that she will continue a practice of seeking to undermine the children’s relationship with the Father. If that happens (and this could, as in the past, manifest by the younger children expressing a wish to live with their Mother), then future proceedings for variation or contravention are likely. If that were to occur, it may also become necessary for the Court to consider whether the children should spend any time with the Mother at all, depending of course on the circumstances.
Conclusions
In my view, it is not in the best interests of the children that the parents have equal shared parental responsibility. They have no capacity to communicate. With [W] and [X] not spending time with the Father, his knowledge of their development diminishes. At their age, the children are likely to have a significant role in any major decisions.
The Father has been managing the needs of [Y] and [Z] since 2006 – and on my assessment doing so well. The evidence does not give me any confidence that the Mother would participate in joint decision making with the Father without her own needs intervening. Certainly in this case, the Father having sole parental responsibility is in the best interests of [Y] and [Z], and I so order.
Since my interim orders of February 2012, [Y] and [Z] have been ordered to spend time with the Mother, and their siblings, each alternate week from after school Friday to 4.00pm Sunday. I regarded that arrangement as appropriate at the time, and in my view, the best interests of the children are served by such an order being made on a final basis. In circumstances where equal shared parental responsibility does not apply, I was not required to consider equal time or substantial and significant time.
However, I did, and rejected each proposal as contrary to the children’s best interests.
The Mother, in Appendix Two, proposed that if the children were to live with the Father, then [Y] and [Z] should spend time:-
-every Tuesday after school until Wednesday morning;
-every Thursday after school until Friday morning;
-every second weekend from Friday afternoon until Monday morning; and
-half of school holidays.
Such a regime would be destabilising to the younger children and also give the Mother too much opportunity to negatively influence [Y] and [Z].
The Father opposed holiday time; the ICL proposed one week in June and one week in January. I take into account that recreational time offers an opportunity for all four siblings to spend less hurried time together. I acknowledge the risks associated with the Mother having holiday time (half of all school holidays), as she proposes. I believe half of the June school holidays and two weeks during the Christmas school holidays will offer an opportunity to all siblings to spend time together as a sibship group.
Unfortunately, I do not regard it as possible for the children to spend Christmas Day together. Just as the Mother achieved last year, the four children are likely to be disappointed, however, each Christmas the twins will spend time with the Mother and the younger children will spend time with the Father.
Otherwise, I incorporate into the orders which appear at the commencement of these reasons, a range of specific orders as contended for by the ICL and some as contended for by the Father. The orders as pronounced in my view meet the best interests of the children.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Baumann FM.
Date: 26 October 2012
APPENDIX ONE
Parental Responsibility
That except as otherwise ordered, the Father and Mother shall have equal shard parental responsibility for the major long term issues of the children [W] born [in] 1997 and [X] born [in] 1997.
That the parents are to consult with each other about decisions to be made n the exercise of their shared parental responsibility as follows:
a.They shall inform the other parent about the decision to be made;
b.They shall consult with each other on terms that they agree;
c.They shall make a genuine effort to come to a joint decision.
That except as otherwise ordered, the Father shall have sole parental responsibility for the children [Y] born [in] 2000 and [Z] born [in] 2003.
That notwithstanding the provisions of Order 1 and 3:
a.The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
b.The father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
Exchange of Information
That the Mother and Father shall:
a.Keep the other parent informed at all times of their residential address and landline contact telephone number;
b.Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
c.Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered but he children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies or school reports, photographs, certificates and awards obtained by the children (at the parent’s cost).
That during the time the children are with either parent, that parent shall:
a.Respect the privacy of the other parent and not to question the children about the personal life of the other parent;
b.Speak of the other parent respectfully and positively;
c.Not denigrate to insult the other parent in the presence of hearing of the children and use their best endeavours to ensure that others do not denigrate or indult the other parent in the hearing or presence of the children.
d.Encourage the children to contact and spend time with the other parent.
Time with the Parents
That the children [Y] born [in] 2000 and [Z] born [in] 2003 (“the children”) live with the Father and spend time with the Mother as may be agree between the parties, or failing agreement from 9:00am Saturday until 5:00pm Sunday each alternate weekend.
That the children [W] born [in] 1997, [X] born [in] 1997 live with the Mother and spend time with the Father:
a.Whenever [X] and [W] express the wish to spend time with their Father;
b.From 9:00am Saturday until 5:00pm Sunday each alternate weekend commencing at such time that the children’s counsellor deems it appropriate in their professional opinion.
The children shall communicate with their parents on the telephone at all such times as the children reasonably request.
Collection and delivery
That except as otherwise agreed to by the parties, changeover shall occur at the children’s school on school days at the entry of the Mother’s residential compound with the Father texting the Mother when the children have been dropped off and when he is outside waiting to collect the children or in the event that the Mother moves residence, outside JB Hi-Fi at [omitted].
Resolving Future Disputes
That the process t be used for resolving future disputes about the children or the terms of these Orders shall be as follows:
a.A Family Dispute Resolution Practitioner shall be appointed by Relationships Australia;
b.The parents shall consult with the Family Dispute Resolution Practitioner and Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children.
c.They shall pay the costs of the Family Dispute Resolution Practitioner equally.
d.In the event that they are unable to for any reason to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
e.The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.
f.If the father fails to choose then the mother may choose.
That the Mother be restrained from discussing the Court process of reasons for the decision with the children or in the hearing of the children.
That the effect of the orders and reasons for judgment is explained to the children by a Family Consultant.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in Order 13.
Any other Order this Honourable Court deems met.
That the children have counselling with Young Minds or such other counsellor as the parties may agree upon on the basis that the Father be responsible for taking the children to counselling and to engage in counselling only as directed by the counsellor.
That the Father at his own cost be at liberty to provide and maintain a mobile telephone for [X] and [W].
That the Mother be restrained form preventing [X] and [W] from communicating with the Father by mobile telephone.
APPENDIX TWO
That all four children live with the Mother in her primary care, with [W] and [X] choosing time, if any with the father, with [Y] and [Z] spending time with their father:-
a.every second weekend from Friday afternoon until Monday mornings, and;
b.alternative Thursday overnight until Friday morning; and
c.half of school holiday blocks with a now day only changeover n the direct middle day of the holidays at JB Hi-Fi [location omitted] at 4.00pm.
That in the event of [W]’s and [X]’s living with the Mother and [Y] and [Z] with the father, that [W] and [X] be permitted to choose what time, if any, they spend with the father, and that [Y] and [Z] spend time with the father:-
a.Every second weekend from Friday afternoon until Monday morning;
b.Every second Thursday after school until Friday morning (alternate to weekends with father); and
c.Half of school holiday blocks with changeover one day only at JB Hi-Fi [location omitted] 4.00pm.
In the event that all four children live with the father, that [W] and [X] be permitted to choose what time, if any, they spend with the mother, and that [Y] and [Z] spend time with the mother:-
a.Every Tuesday after school until Wednesday morning;
b.Every Thursday after school until Friday morning;
c.Every second weekend from Friday afternoon until Monday morning;
d.Half of school holiday blocks with only one day changeover in the direct middle of the holiday at JB Hi-Fi [location omitted] at 4.00pm
Additionally, that the changeovers occur during school term at school without father and m other meeting, and one day only in middle of holidays at 4.00pm at JB Hi-Fi [location omitted].
That if there are any problems of intimidation the mother be permitted a family friend, [name omitted], pick the children up, or his sister, and drop the children off.
APPENDIX THREE
That all previous Orders and Parenting Plans be discharged.
The Mother has sole responsibility for the major long term issues of the children, [W] and [X].
The Father has sole responsibility for the major long term issues of the children, [Y], and [Z].
That notwithstanding the provisions of Order 2 and 3:
a.The Mother shall be responsible for the daily care, welfare and development of the children while they are living or spending time with her; and
b.The Father shall be responsible for the daily care, welfare and development of the children while they are living or spending time with him.
That the children [Y] and [Z] live with the Father.
That the children [Y] and [Z] spend time and communicate with the Mother at all times as may be agreed in writing between the parties and failing agreement as follows:
a.Each alternate weekend from 9am Saturday to 4pm Sunday.
That the Father have one half of the Queensland gazetted school holidays with the children [Y] and [Z] being the first half in even numbered years and the second half in odd numbered years and the Mother’s time with the children as set out in Order 6 be suspended during this time.
That the children [W] and [X] live with the Mother.
That the children [W] and [X] spend time and communicate with the Father at all times as may be agreed in writing between the parties and in accordance with their expressed wishes.
That for the purposes of Order 9 the Mother will ensure that if the children express a wish to spend time and/or communicate with their father that she will do all acts and all things necessary to ensure that this occurs as soon as reasonably practicable.
The parties agree that if Father’s Day falls on a weekend when the children are due to spend time with the Mother, that the Mother’s time be suspended for the day of Father’s Day, such that the children are able to spend the day with their Father from 9am Saturday to 5pm Sunday.
The parties agree that if Mother’ Day falls on a weekend when the children are due to spend time with the Father, that the Father’s time be suspended for the day of Mother’s Day, such that the children are able to spend the day with their Mother from 9am Saturday to 5pm Sunday.
For the purposes of changeover, unless otherwise agreed:
i)Changeover will occur at the [omitted] Contact Centre;
ii)In the event that the contact centre is closed or not available changeover will occur at the car park at the MacDonald’s [location omitted] with each parent to remain in their vehicle and to allow the children to walk to the other parent’s vehicle.
Family Counselling
That the parents do all and all things necessary to attend upon and ensure that the children attend upon Ms O, Young Minds for the purposes of Family Counselling specifically to address the relationship between the siblings.
For the purposes of this Order 14 both parties will share equally the cost of such counselling and follow the recommendations of Ms O.
That the parents do all and all things necessary to attend upon Mr W and ensure that the children attend upon Mr W for the purpose of, but not limited to, explaining the effect of the Orders.
Should the children’s birthday fall on a day when the children are not spending physical time with the parent, then the parent shall spend time with the child for their birthday on the next occasion of seeing the children (i.e no particular allowance for ‘make-up’ time). The parent whom the children are not with on their birthday is at liberty to phone and speak to the child on their birthday.
That each of the parties ensure that the other party is promptly notified of any serious illness, injury, medical or like emergencies suffered by the children, including the name, address and telephone number of the relevant hospital or medical practitioner.
These Orders shall be sufficient authority for each party to obtain from the children’s medical practitioner, health carer or counsellor, any information or report regarding the children’s health upon request and cost of that party.
These Orders shall be sufficient authority for each party to obtain from the children’s school, any information and documentation regarding the children’s progress and include school reports, newsletters, and school photographs upon the request and cost of that party.
Each party shall be entitled to attend the school of [Y] and [Z] from time to time for any sporting events, concerts and cultural events that parents are invited to attend.
The parties agree not to:
a.Denigrate the other party or their family in the presence of the children or directly to the children;
b.Discuss the Family Court Proceedings with the children or provide the children with documentation from the Family Court Proceedings.
That in respect of specific issues:
a.That each parent is to keep the other informed about the health, welfare and education of the children;
b.That each parent is to keep the other informed of an address, which could be their address or a post box and telephone number and advise the other parent within forty eight (48) hours if those details change;
c.That each parent is to keep the other informed of the children’s place of education and details of any medical, dental or other health provider who treats the children when they are in their care.
That in respect of Dispute Resolution, that the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
a.The parents shall consult with a Family Dispute Resolution Practitioner or the nearest Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
b.They shall pay the costs of the Family Dispute Resolution Practitioner equally;
c.In the event that they are unable to for any reason to have an appointment with a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
d.The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list;
e.If the Father fails to choose then the Mother may choose.
0
0
1