B and B
[2010] FCWA 35
•19 MARCH 2010
[2010] FCWA 35
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : REGIONAL CENTRE | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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Applicant/Father
AND
B
Respondent/Mother
Catchwords:
Children's issues - parental responsibility - with whom children should live - children estranged from father - whether change in living arrangements appropriate - whether mother able to promote relationship with father - relevance of age of children where 15, 13 and 11 years
Legislation:
Family Law Act 1975
Family Law Amendment (Shared Parental Responsibility) Act 2006
Category: Not Reportable
[2010] FCWA 35
Representation:
Counsel:
| Applicant | : | Mr M Hynes |
| Respondent | : | Mrs E Brownlie |
| Independent Children’s Lawyer | : | Mr R Kroon |
Solicitors:
| Applicant | : | Martin Hynes Lawyers |
| Respondent | : | Elizabeth Nicholson |
| Independent Children’s Lawyer | : | Kroon Lawyers |
Case(s) referred to in judgment(s):
McCall & Clark (2009) FLC 93-405
[2010] FCWA 35
1 A Court’s task in children’s matters is to arrive at an outcome which in the
unique circumstances of each case is in a child’s best interests. All children have different lives and what is best for one child in any given set of circumstances may not be best for another, even in similar circumstances. Different minds can reach different conclusions on what a child’s best interests may be.
2 In this case the Court is asked to determine where [Donald] aged 15, [Teresa]
almost 14 and [Christine] aged 11, should live. Mr B, their father, wants the Court to change the children’s living arrangements so they leave the care of their mother, [Mrs B], and live with him and his partner, [Ms R]. The children are implacably opposed to such a course. Given their ages and strong views, this appears, at first blush to be a difficult position to press. However, Mr B says such matters as their social isolation, Donald’s selective mutism and the poor educational performance resulting from ineffective schooling at home all needs to be considered.
3 At the start of the trial it seemed the Court was faced with two likely outcomes:
• The children remain with their mother. Although she says they should see their father “in accordance with their wishes”, given their strong attachment to her and their adoption of her views immediately after separation, there is little likelihood they will spend any time with him; or • The children live with their father and, at some stage, his partner, Ms R, and in doing so experience the upheaval caused by a removal from their mother with whom they have a very strong bond. 4 Either option is likely to impact on the children in a negative way – the former
more so in the long term and the latter more in the short term. Either course is likely to be problematic and may make it extremely difficult for the children to reach their full potential.
5 However, at the conclusion of her evidence Mrs B put forward a proposal
whereby the children and Mr B attend psychological counselling with a view to restoring their relationship which has been fractured from at least early 2008. She also said she would agree to the girls going to a mainstream school in Bunbury in 2011.
6 The Court asks whether it is possible to achieve this middle ground whereby the
children can have substantial involvement with both parents as envisaged by the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
Orders sought by the parties
7 An Independent Children’s Lawyer was appointed by court order made on
12 December 2007. After all the evidence he did not adopt a firm position but put
forward both proposals of the parties and gave a helpful overview of the evidence.8 The father seeks orders the children live with him and he have sole responsibility
for them. He wants them to spend time with the mother depending upon how they settle with him. He intends to take the advice of a psychologist in this regard. If the children remain with their mother he seeks equal shared parental responsibility.
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9 The mother seeks the children live with her and spend time with their father in
accordance with the recommendations of a psychologist after counselling. She seeks an order for equal shared parental responsibility. She wants Donald to continue with his home education, but seeks orders for the two girls to attend a private school in 2011. This is where they were until 2005.
Brief background
10 Mrs B is currently 50 years of age and Mr B 49 years of age.
11 They both have children from previous relationships. Mr B has a son, [Allan],
who was born in 1985. Their relationship broke down after the parties to these proceedings were married. Mr B says he is now trying to rebuild his relationship with Allan, who lives in a nearby town.
12 Mrs B has two children from a previous relationship, [Marilyn], now aged 28, and [Kevin], now aged 23 years. Marilyn lives in the north west Darwin and Kevin lives in Perth.
13 The parties met in November 1993 and started living together in early 1994. They were married on 11 June 1994. Throughout the marriage the parties lived at a farm in the regional area, which was rented in Mrs B’s name.
14 The parties have three children, Donald who was born in January 1995, Teresa who was born in June 1996 and Christine who was born in December 1998.
15 From the time he started attending kindergarten Donald has suffered from
selective mutism.
16 The children commenced their primary schooling at the local private school.
All children were removed from that school at the end of 2005. At this time the parties agreed the children be schooled at home.
17 The children were then enrolled with the Australian Christian Academy in
Queensland in March 2006. The children were transferred to the Southlands Christian
Academy in Albany in January 2008.18 On 13 October 2006 Mrs B and the children moved from the rented faming
property into a home the parties had built for investment purposes in the suburbs. Mr
B visited the children at the suburban home.19 Mr B & Ms R started a relationship on 20 June 2007. In July 2007 they
commenced cohabitation at Ms R’s home in a town nearby. Ms R deposes she and Mr B “started to have conversations” in early 2007. She has a daughter, [Sarah], now aged 20 years. Mr B did not tell Mrs B of the new relationship until 21 November 2007. He told her where he was living on 12 December 2007.
20 Between July 2007 and December 2007 Mr B had some difficulty seeing the
children. He commenced court proceedings on 12 October 2007. On 12 December 2007 the Court made interim orders in relation to where the children should live and
[2010] FCWA 35
how much time they would spend with their father. They had their first period of time with Mr B pursuant to these orders on 15 December 2007. An order was made that the children be separately represented.
21 On 12 January 2008 the children spent their first overnight visit with their father
at Ms R’s house.
22 Between 26 January 2008 and 17 February 2008 the children started to tell their
father they did not want to come to visit with him. On 22 February 2008 the children attended Mr B and Ms R’s home for the last time. Mr B continued to see the children but on a limited basis. Ms R last saw the children in March 2008.
23 The parties attended a conciliation conference on 4 April 2008.
24 On 4 June 2008 Mr B filed a contravention application which was dismissed on 15 July 2008, largely on what I consider to be technical grounds.
25 Anglicare WA in Bunbury started supervising visits on 20 September 2008. This continued until 8 November 2008.
26 Between 2 October 2008 and 24 January 2009 the children saw their father at the
local Therapy Centre in the presence of [Ms W], a child and adolescent therapist. The purpose of this was to try and see if the children’s relationship with their father could be rebuilt.
27 On 13 October 2008 orders were made for [Ms M], development and
educational psychologist to assess the children, and also for the children to spend time
with their father at the Anglicare Supervisory Centre.28 The parties divorced on 11 July 2009.
29 The children last saw their father briefly in late November 2009 in the presence of a church pastor. It was unsuccessful.
• Single expert 30 [Mr C], clinical psychologist, was appointed single expert by consent on 28 May
2008. He commenced his interviews in June 2008. He provided a report on 16 March
2009.31 He swore an affidavit on 22 September 2009 specifically in relation to enquiries
he had made of Mrs B about the educational assessment completed by Ms M. Mr C was the first witness called at the trial. He was later recalled and gave further evidence at the end of the trial. He was cross-examined by all parties.
32 Mrs B has made a complaint against him to the Psychologist’s Registration
Board of Western Australia by letter dated 4 May 2009. This did not form a relevant part of the proceedings.
33 In her closing submissions Mrs Brownlie, counsel for Mrs B, questioned
whether Mr C’s report satisfied the requirements of Rule 15.63(c)(iii) of the Family
[2010] FCWA 35
Law Rules 2004. She said that he gave little evidentiary basis for some of the opinions he formed. The submissions went little further than this. If this becomes relevant I will address it throughout the course of my judgment where applicable. She also said that at trial his report was outdated. There was criticism of some of the times and dates of the interviews he undertook.
34 Mrs Brownlie correctly pointed out that Ms W had spent more time with the
children than Mr C. She said Ms W was thus in a better position to assess the children’s feelings for their father. Ms W saw the children well after their attendance on Mr C. It was for a completely different purpose. I am not persuaded they can be compared.
35 Overall, I am satisfied Mr C had understood the dynamics of this complex case and carried out the necessary interviews in order to inform the Court.
Applicable law
36 These proceedings fall for determination under Part VII of the
Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental
Responsibility) Act 2006.37 The objects of Part VII of the Act are to ensure that the best interests of children
are met by -
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
38 Section 60CA of the Act makes clear that the best interests of the children is the paramount consideration in my determination. Section 60CC sets out the matters I must take into account in determining what is in the best interests of Donald, Teresa and Christine. Section 60CC(2) details what are described as primary considerations and s 60CC(3) details additional considerations to be taken into account in determining what is in their best interests.
[2010] FCWA 35
The presumption of shared parental responsibility
39 Section 61DA of the Act provides that a Court must apply a presumption that it is in a child’s best interests for parents to have equal shared parental responsibility. Parental responsibility relates to decision making and not the time to be spent with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or child abuse.
40 The presumption, however, may also be rebutted by evidence that satisfies the
Court that it would not be in the child’s best interests for his or her parents to have equal shared responsibility.
41 There are certain consequences which arise when a parenting order is made for
shared parental responsibility. The first consequence is that the parties must consult and make a genuine effort to come to a joint decision about major long-term issues. These long-term issues are specifically defined in the Family Law Act 1975.
“Section 4:
Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and (b) the child’s religious and cultural upbringing; and (c) the child’s health; and (d) the child’s name; and (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
42 The parties are obligated by the legislation to consult about these issues and
make a genuine effort to come to a joint decision about them. Neither party can ignore
this obligation.43 I do not intend to make an order for equal shared parental responsibility in this
matter. Although I find the presumption applies, I am satisfied that it has been rebutted. The reasons for coming to this conclusion will be specifically canvassed in the body of my judgment. However, in passing, I note that the parties have completely different and apparently irreconcilable views about schooling and religion. The polarised position of the parties in these respects alone militate against negotiation and compromise. They communicate poorly.
44 There is considerable overlap between the issues relating to equal shared
parental responsibility and the considerations I must take into account when determining what is in the best interests of the three children. I do not intend to duplicate my reasons here.
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45 The Court must consider the impact of any arrangement it orders on the children
and any other matter that it considers to be relevant. The Court has to evaluate the behaviour of the parents in order to determine what time is appropriate and in the best interests of a particular child. Here there are three children to consider. There is no suggestion they be separated. It is accepted by the parties the three children remain together in one or other of their households.
Applying the facts to the law
46 Firstly, I refer to the primary considerations in determining what would be most likely to promote the interests of Donald, Teresa and Christine.
| (a) | the benefit to the child of having a meaningful relationship with both of the child’s parents; and |
47 It is now accepted that “meaningful” in this context is synonymous with
“significant”. Thus, to have a meaningful relationship is to have an important relationship or one of some consequence. The Full Court in the matter of McCall & Clark (2009) FLC 93-405 set out what it considered to be the three possible interpretations of s 60CC(2)(a):
“118. …
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”); (b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and (c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
48 The Court concluded that the preferred interpretation of benefit to a child of a
meaningful relationship is the “prospective approach”. However, the Court accepted that depending upon the circumstances of the case, the present relationship approach may also be relevant. The Court went on to say:
[2010] FCWA 35
“119… If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
49 The Court said it considered the legislation required a Court to focus on the
benefit to the child of a meaningful or significant relationship.
50 I will return to this aspect of the case later after I have considered all the other matters I need to in accordance with the legislation.
| (b) | the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence |
51 Each parent alleges the other has been violent in the presence of the children.
52 Mrs B says she was subjected to verbal, emotional and physical abuse at the
hands of her husband. She alleges fits of rage and violent outbursts. She said the physical abuse occurred in front of the children. It involved damage to furniture and fittings. It occurred throughout the marriage. She said it happened after separation as well.
53 She said the aggression extended to her two children from previous relationships, Marilyn and Kevin.
54 Her witness, [Ms L], recalls a couple of occasions when Mrs B attended her
home visibly distressed, very upset and angry. I do not doubt this is what she saw. Mrs B said Mr B had hit her. Mr B denies this. Ms L thought this may have been in the mid-1990s, but was uncertain. Ms L said the children remained in the car but she was unsure if both Marilyn and Kevin were there.
55 On 13 March 2008 Mrs B started counselling at regional Support Centre to help
her “deal with the abuse throughout my marriage, the ongoing conflict at handovers and in my communications with the applicant”. She also arranged for the children to have counselling at the centre.
56 On the other hand, Mr B deposes, referring to her two eldest children:
“57. [Mrs B] has a violent temper and would often take her anger out on those around her including physical punishment and verbal abuse of her children.”
57 Mrs B admitted occasionally using a small cricket bat on the children. Mr B
said Mrs B knows how to push his buttons and she has pushed him to the limit on many occasions. He accepts that on one occasion when they were arguing she slapped his face and he slapped her back. He admits to slamming doors and to some minor property damage.
[2010] FCWA 35
58 He attended some counselling at Relationships Australia at some stage in order
to appease Mrs B. She did not agree to attend so it did not proceed beyond two
sessions.59 Violence between partners is a complex and contentious issue that often arises in
high conflict Family Court matters, especially in those involving children. Particularly, the term domestic violence is used most often to describe a pattern of behaviour in a relationship that is used to gain or maintain power and control over an intimate partner.
60 Domestic violence can be multifaceted – coercion and threats, intimidation,
emotional abuse, economic abuse, isolation, minimising, denying, blaming and use of children as bargaining chips to name just some aspects of it. The consequences for a victim can be far reaching, long lasting and insidious. Power and control by another can render a person helpless to act in a manner he or she determines for themselves.
61 This Court is acutely aware of the enormous impact that domestic violence can
have on a victim’s life. Judgment can be impaired, behaviour can be out of character
and decision making can be skewed.62 The Court is often asked to determine issues of domestic violence on the basis of
little tangible or concrete evidence. This makes the task of a judge very difficult. Domestic violence is often hidden, without any public face and its occurrence lacking credible witnesses.
63 Not unusually, here there have been no Violence Restraining Orders, medical records or police reports to corroborate anyone’s allegations.
64 Importantly, none of the three children reported to Mr C that they had witnessed
violence by either party, save as I will detail. Although they had complaints about
their father it generally related to other matters.65 Two incidents involving physical interaction, which have been frequently referred to, need to be mentioned here.
66 On 2 February 2008 an overnight visit took place at Ms R’ house. Donald was
displeased it seems because his father had refused to buy a particular toy for him earlier in the day. The children had come without any overnight bags and Mr B purchased nightwear for them. That evening Donald refused to put on his new pyjamas or go to bed. There was an argument. Mr B physically carried Donald to his room. Mr B said he lifted Donald and virtually tucked him under his arm. He confiscated his mobile phone, however, Teresa returned it to him and he was sending messages to his mother until about 1.30 am.
67 This incident was then relayed by Donald as him being dragged to his room.
Mrs B deposes Donald was hit twice by his father. Mr C said that at interview Donald had agreed with Mr B’s version of what had transpired.
68 Secondly, the children saw their father on 7 June 2008. During the visit they had
been at the beach. The children were playing on the rocks and Christine, according to Mr B ran at the rocks. When told to stop she did not and in order to prevent a possible
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fall her father grabbed the hood of her jacket, halting her progress. He said it was not
an act of anger, but simply to prevent an injury.69 Mrs B recounts Christine’s version. She said that Christine and Teresa had an
argument. Mr B smacked Christine and when she tried to run away he grabbed the
hood of her jacket and choked her.70 Importantly, this latter incident was not raised as an issue by the children when they saw Mr C at interview a short while later on 23 June 2008.
71 The most concerning evidence about this issue of family violence was from
Marilyn, who now resides in the north-west. She swore an affidavit on behalf of Mr B and was cross-examined. Marilyn said her mother was abusive to her and the other children. She had left home when she was about 18 years old. She has a very fractured relationship with her mother. She clearly refuted Mrs B’s version of Mr B’s aggression and temper. She said her mother had the bad temper rather than her stepfather. She gave examples of inappropriate discipline by her mother against herself and Kevin using a wooden spoon and a cricket bat. She said the abuse extended to Donald, Teresa and Christine. She had spent about five months in Bunbury in 2006 and last saw the children during that time. She deposes to having heard the following:
“27. On several occasions I have heard Mum say to Donald, Teresa and
Christine:“Daddy doesn’t love you anymore and doesn’t want to
be with you anymore.”28. When I have been talking to them on the phone they have said similar things to me. The children reported to me that Daddy has deserted them leaving them destitute. I thought this was strange coming from the kids…
…
31. Mum told me that she didn’t want Dad to see Donald, Teresa and Christine.”
72 Marilyn said Mr B gave her the odd smack. Mr B admitted having smacked her rarely. He said she was 13 to 15 years old when he smacked her bottom.
73 Even having taken into account the following:
• Marilyn’s current poor relationship with her mother; • there is therefore likely to have been some exaggeration; • the fact she was a child when a considerable amount of her evidence is said to have taken place; and • she did have some discussion with Mr B about the affidavit,
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I do not accept that she is lying or what she says is untrue. I found her to be a basically honest witness although I accept the accuracy and reliability of her evidence is impacted upon by the matters outlined. This goes to the weight I attach to her evidence.
74 As can be seen, violence has been raised in this case in a number of guises.
75 The parties’ marriage was volatile and confrontational from an early stage. They
had financial problems and difficult family dynamics. I find that it is likely there was some violent behaviour from time to time in the context of arguments. I am not satisfied that either party was better or worse than the other.
76 I find Mrs B to be very persistent in some of her behaviours, for example, on
19 August 2007 she prevented Mr B from leaving her property by standing behind his car for an hour and a half. He was unable to persuade her to move. He had been at the property to visit the children and Mrs B wanted to discuss something with him. He finally called the police to help him leave.
77 On 16 September 2007 the parties and the children had lunch together. Mr B
said he was then going to meet a work colleague. When he left the venue Mrs B followed him in her motor vehicle. She told him that she wanted to find out where he was going and “that the children wanted to know the truth”. She followed him for a four hour period with the children in the car. The police were unwilling to involve themselves in this matter and eventually Mr B had to park his motor vehicle at his place of employment and proceed on foot. It was only then that Mrs B stopped following him.
78 There are allegations that he stopped at one stage and there was a confrontation which involved him pulling Mrs B from her car. This is denied by Mr B.
79 Of concern is the fact the children are likely to have seen these various confrontations, which at the very least involved angry, unseemly behaviour.
80 In conclusion, I find both parties have inappropriately disciplined the children.
This Court does not condone physical chastisement of children. The use of a wooden spoon or a small cricket bat by Mrs B is completely inappropriate. I accept it does not currently happen, but if the children were very oppositional in the future, in particular Teresa, Mrs B will need to take stock of how she deals with her.
81 I also find it inappropriate for Mr B to be physically handling his son in the
manner he did. I accept Donald was not dragged, but to treat a teenage boy in such a manner serves little purpose and is inflammatory and demeaning. I do not accept it was justified in the circumstances and take the view that there are more appropriate ways of dealing with such issues. I also consider it inappropriate to smack and particularly, in the context of this case, a teenage girl. It is common ground he smacked Marilyn and he may well have smacked Christine. It is hoped Mr B will have a relationship with his daughters, however he too needs to take stock of how he deals with oppositional behaviour. I made an order immediately after trial for both parents to attend a parenting course.
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82 I am aware none of the children showed fear of their parents at interview with
Mr C, or reported abuse or family violence of note. I do not consider this is a pivotal factor in this case.
83 I must now turn to the relevant additional considerations set out in s 60CC(3) of
the Act. The additional considerations are not secondary considerations, but are
matters to be read in conjunction with the primary considerations.
| (a) | any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; |
84 The children’s views are closely aligned to the type of relationship they have with their father at any particular time.
• pre-separation 85 Mr B’s view is that he and the children had a good relationship prior to and immediately after separation. He deposes:
“133. Prior to [Mrs B] and the children leaving our home at [the town] in October 2006, I had a good relationship with my children. They were affectionate and were always jumping all over me when I came home from work. We spent a lot of time together while [Mrs B] was occupying herself with her internet pony chats, her pony business or science fiction episodes DVDs… 134. The children and I enjoyed the company of each other. I felt the children loved me. Certainly I loved the children very much and I still do.”
86 Mrs B did not accept in cross-examination that the children had a good
relationship with their father prior to the breakdown of the parties’ relationship. Although this was put to her in a number of guises she was adamant that Mr B was rarely present during the marriage and when he was, he had little time for the children. Marilyn said Mr B had worked long hours.
87 At a court hearing on 12 December 2007 Mrs B’s then counsel indicated that the
children had previously spent time with their father and the children were extremely happy. Counsel said the children had a good relationship with their father. At trial Mrs B did not accept that this had been her position at the time. She conceded the children and their father “got along”.
88 Mr C reported that Mrs B described Donald as a happy, well balanced child who
had become disenchanted with his father because he was forced to stay overnight with Ms R. In the context of his interview with Mrs B, he reports, “before this (Ms R) Donald loved his father”. He was not challenged on this and it supports there was a time, to Mrs B’s knowledge, when Donald and his father were close. Additionally he reports that Mrs B said Christine had always been loving towards both of her parents. She said Christine had now changed and does not like her father.
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89 At interview Mr C reports Mrs B said that before the children found out about
Ms R they loved their father and were happy to have time with him. However, he also reported that at other times she said they never had a relationship with him as he was too busy working. I accept the accuracy of Mr C’s reporting. I found a degree of inconsistency in Mrs B’s oral evidence on this issue.
90 Given the response of the children to Mr B when they were seen together at the
interview by the Single Expert I have no doubt that the father and the children were close until the time of separation. The relationship between them was good and they enjoyed being with him.
91 I accept that from time to time Mr B was an absent father. At one time he
worked in the north-west for ten months. I also accept that when he was living within the family home he spent very long hours at work. Despite this, there is nothing to suggest the children were not close to him.
• post separation 92 In October 2006 the parties ceased to reside in the same household. Mrs B and
the children moved to the suburbs to reside and Mr B and Kevin remained at the farming property out of town. Mr B says he tried to see the children at least every second day and on the weekends. He says there was some difficulty in having informal and easy access to them, but there is no doubt he was able to see them frequently. There is nothing to suggest they did not enjoy his company.
93 In the middle of July he started to live with Ms R in her home. He did not
immediately advise Mrs B of this relationship. However, it is clear Mrs B had an inkling well prior to that time. This may explain, to some extent, her previously described behaviour on 16 September 2007. She wanted the children to know the truth.
94 Mrs B says that when the parties ceased to cohabitate there was still some
suggestion of reconciliation. Mr B agrees with this, but it is clear that in 2007 his views changed and he commenced to develop his present relationship. Unfortunately, the manner in which he did so was clandestine and it left Mrs B with her suspicions, but no proof. This spilled over to the children.
95 Mr B’s lack of frankness with his wife was unhelpful. It was not an easy time
for her. When Mr B moved in with Ms R he vacated the former matrimonial home, which was leased in her name, made changes to bank accounts and gave Mrs B little information about why all this was done. Mrs B had three young children in her care and an uncertain future. However, despite her personal disquiet, she clearly and inappropriately included the children in her marital difficulties.
96 Her bitterness and disenchantment was made known to the children. The
children were witness to the unfortunate behaviour of her tailing Mr B for four hours in the car. The introduction of Ms R into the equation affected Mrs B very deeply and she in turn allowed this to be known to the children. Although she denies this I do not accept her evidence in this regard. Even on her own version the children were present during certain of her actions.
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97 I also accept that she influenced the children to make the comments they did to
Marilyn. When the children were seeing their father and Ms R, Marilyn said they had talked happily to her about the visits on the few occasions she spoke to them.
98 From late 2007 until the present the attitude of the children to their father has
gradually hardened. Initially, I find their attitudes were influenced by Mrs B and her feelings. Although I consider there to be some default by Mr B in the manner in which he commenced a new relationship, I do not see it of such a magnitude that without Mrs B’s influence the children would have turned against their father.
99 Mr C said that with the introduction of Ms R and the subsequent hardening of
Mrs B’s attitude to Mr B, the children’s attitude also hardened. I accept that Mrs B was negative, at least initially, to the children about Mr B. If they were negative about him or had some complaint about him, even of a minor nature, Mrs B failed to deflect it, but rather took up the cudgels for the children. Mr C says that they were feeding off each other. I find this to be supported by the evidence of the parties at trial.
100 When the children were first introduced to Ms R they may have had some very
minor complaints such as dog hair being on the furniture and insects on their pillows. I do not accept those complaints were anything other than trivial. They were common in the context of the introduction of a new partner. However, with the children being extremely close to their mother, it was impossible for the children to get to know Ms R and form their own independent opinion of her.
101 I consider that Mrs B’s views have been adopted by the children from time to
time. On 12 January 2008 the children were to spend time overnight with Mr B. That evening the children telephoned their mother after the day’s outing. Mrs B said the children asked her if they could come home and that they wanted to come home. Ms R said that when the children were speaking to their mother on the telephone she was nearby preparing food and heard their half of the conversation. She said she did not hear any of the children ask to go home. Although there can be no certainty Ms R heard each and every word the children spoke to their mother, I am inclined to believe that they did not ask to go home, but that rather it was their mother who had wanted them to return. Unfortunately, her views, over time, appear to have become their views.
102 The views of the children were later expressed very clearly in the report of
Ms W who had conducted six family sessions with the children and their father in late
2008 and early 2009.103 At the final session the children had with their father in January 2009 they were
asked whether they were interested in seeing him and if they wanted a better relationship with him. Teresa indicated she did not want a relationship with her father and indicated she did not have one. She then said that she wanted to have the choice to contact him or not.
104 Donald wrote down that he never wanted to see his father and did not want a
relationship with him. Christine indicated she did not want any contact with her father
and did not want to have a relationship with him.
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105 In late 2009 attempts were again made by Mr B to see the children, this time in
the presence of a pastor. This was completely unsuccessful. It reiterated the children’s earlier views not to see their father. Their views had strengthened despite the fact they had not seen him for a considerable period.
106 Of note is the manner in which the children related to their father when they
were seen with him at interview with Mr C for the Single Expert’s report. Interviews were done between the father and the children on 23 June 2008 for a period of approximately one hour.
107 Mr C reports:
“In predicting what Donald would be like in being seen by his father, [Mrs B] stated he keeps to himself and becomes very anxious when in a room with his father. She expected him to be very quiet in a strange situation, not to say or do anything and that inside he would feel extremely emotional. This was in stark contrast to what occurred when Donald saw his father at the joint interview.”
108 Mrs B told Mr C that Donald’s anxiety provoked by his father would result in
him not talking at interview. This was not the case. However, Mrs B denies making any prediction about how Donald would react and says Mr C pressured her. I do not accept that to be so.
109 Despite some early posturing and tension all three children related well with
their father. It is reported they showed no fear or concern about him. Donald began talking openly with his father and joked with him. Mrs B says the children were “under pressure” to act as they did.
110 In relation to all three children Mr C reports that they appeared to be under the
impression they needed to act angrily and aggressively with their father. It did not appear to be their true demeanour, but that there was a feeling of obligation to act that way. The basis for him reporting this was the manner in which he observed the children and their father interacting.
111 The positive nature of the interaction between their father becoming known to
their mother correlates with a further hardening of the children’s views. Despite the assistance of Ms W and Anglicare, the children withdrew completely. Today, they remain against having a relationship with Mr B. They presently do not want to see him or live with him.
112 The children want to remain living with their mother, with whom they are very
closely aligned.
113 There is no doubt that Donald is immature for his age. Given his circumstances,
especially the selective mutism, this is hardly surprising. Mrs B minimises this tendency. Teresa is described by her mother as mature. Both Marilyn and Mr B describe her as being more proactive and resilient than the other children. I accept Christine may well be a little immature.
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114 Donald’s selective mutism, the fact the children are schooled at home and that
they have always spent almost all day every day in their mother’s presence makes it
very difficult to separate their real views from her views.115 Ms R deposes that the children would often say that Mummy missed them and Mummy did not want them to go very far from her.
| (b) | the nature of the relationship of the child with: | |
|
• Background 116 The children’s relationship with their parents, in particular Mrs B, needs to be viewed against the manner in which they were brought up.
117 The children have grown up in what can be described as a religious household.
Although Mr B no longer holds the same views as Mrs B, I accept he still considers himself a Christian. In Mrs B’s eyes he has “resiled from his faith but the children remain strong in their religious connections”. The parties did not ever pinpoint in which particular brand of religion they were involved, but in more recent times Mrs B is said to have attended pentecostal, charismatic and free churches.
118 Unusually, until the children started seeing their father overnight for a few
occasions in January and February 2008 they had never spent a night away from their
mother, save for when she gave birth to their siblings and on only one other occasion.119 Marilyn spoke of the children being with their mother all day and every day. Mr
B deposes to the children being isolated from the outside world. I find that they have always had a lack of consistent social contact.
120 It is common ground Donald was always a shy child and when he was due to
start kindergarten the separation from his mother was very traumatic. Since that time
he has been selectively mute. He speaks to a limited group of family members.121 Mr B deposes:
“17. The children are currently treated as ‘one child’ by their mother however have unique personalities. The children are all given the same rules by their mother and they all have the same lifestyle which is an issue that I discuss below.”
122 In this respect, when Mrs B was asked why she had on one occasion referred to
Ms R as a “hypocrite”, she answered that at the time she believed Ms R was living with her husband when “we thought he was trying to reconcile with us and come back to us.”
123 On questioning from the Court she explained the “we” she was referring to was
herself and the children, suggesting a collective thinking rather than her own view on
the state of her relationship with her husband.
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124 The children all started at the local private school when each was due to
commence their education. Donald and Teresa had repeated the pre-primary year. The children were withdrawn from this school at the end of 2005 in order to start schooling at home. They continue to do this form of education.
125 Until recently the children had very little contact with friends or social groups.
Even when Mrs B recounts activities and school outings for the children it is clear she is mostly present with them. I find most recent activity has come about in the context of the court proceedings.
• mother 126 Donald and his mother are very close. Mr C reports that Donald appears to have
a good relationship with his mother. He reports that Mrs B, over time, has lost her objectivity in regard to his needs. Donald said at interview that his mother wants what he wants and they very rarely argue. He said she would not force him to do anything.
127 Donald is very reliant upon his mother. They have a very dependent
relationship. I find the extent of the dependency unusual for a teenage boy of almost
15 years.128 Teresa said she loves her mother a great deal and that she is nice and takes care
of her. There is no doubt Teresa is also close to her mother, although of all the
children, she appears to be the most independent.129 Again, Christine is very close to her mother and Mr C reports that when
Christine was seen with her mother there was a natural drawing of the two of them together.
130 I find Mrs B to have a good relationship with all three of the children. I,
however, consider it to be characterised by a closeness that has affected the children’s
ability to relate to others and to form their own views.
• father 131 The father’s present relationship with the children is extremely poor. All three
children have articulated their anger with their father in various ways. They have each described their dissatisfaction with Mr B in having a relationship with Ms R and also the manner in which they found out about it. They do not think he has been honest with them. They are concerned about their father’s lack of religion. They complain he does not listen to them.
132 Mr C, as a result of viewing the children with their father, considered there was a strong underlying relationship between each child and their father.
(ii) other persons (including any grandparent or other relative of the child);
133 I find these children to be quite socially isolated and to have few deep
relationships, familial or otherwise. The people outlined below are seen infrequently,
if at all.
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• Ms R 134 The children have no present relationship with Ms R. Their disenchantment
revolves around her. I accept that a relationship initially showed promise, but this deteriorated completely around March 2008. They have had no opportunity to develop a relationship since that time. Sarah, Ms R’s daughter, had some little contact with the children and appears to have related well with them during that time.
135 I found Ms R to be an impressive witness. She was practical in approach, yet appeared sensitive to the needs of others.
• Marilyn 136 Despite the age gap, I accept that Marilyn, now 28 years old, has had a good
relationship with her half siblings in the past. She assisted extensively in their care and supervision when they were young. However, with her supporting Mr B and the consequent rift with her mother, the children have withdrawn from her. She spoke to Christine in December 2009 and says the relationship was remote.
• Kevin 137 Kevin has a good relationship with his half siblings and both his mother and
stepfather. He deliberately chose not to give evidence at trial and I accept he will be
important in the future as a constant in the children’s lives.
• [Mrs P] 138 The children’s maternal grandmother has lived within the mother’s household
from time to time. I accept the children generally have a good relationship with her and she has chosen not to side with either of the parties. Again, I accept she will be there for the children in the future no matter where they live.
• [Mr P] 139 The children’s maternal grandfather and his wife see both parties and will likely be involved with the children in the future.
| (c) | the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; |
140 Mrs B says she has done everything humanly possible to encourage a
relationship between the children and their father. She says that she has delivered the children to their father and she has ferried them around on his behalf when they have refused to get into his car. She has at times offered for Mr B to spend time with the children, but it has always been unsuccessful.
141 Mrs B was asked in cross-examination whether she thought the children would
be able to reconcile with their father whilst they lived with her. She said she could not
see how it might happen.142 When Mrs B filed her response to Mr B’s application on 17 December 2008 she
sought that the children live with her and they see their father in accordance with their
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wishes. Her response was filed in the context of only recently having been advised Mr B was in a new relationship and living with his partner. The children’s attitude to Mr B commenced to harden at about that time.
143 In her trial affidavit affirmed 17 December 2009 she still sought the children
spend time with their father in accordance with their wishes. Quite clearly, at that stage, this meant no time at all with him. She continued to want the children to be educated at home. However, half way through the trial her stance changed. She sought the children have therapy to reintroduce them to their father and for the girls to commence mainstream education in 2011. Mrs B’s change in her willingness to take on board the recommendations of professionals came about very late in the day. Her counsel said she had “a long hard think through the night”.
144 The breakdown of the relationship and the involvement of Ms R was a painful
fact for the children’s mother - especially as she held out hope of reconciliation and this hope was initially shared by Mr B. However, when this was thwarted her anger and bitterness were made known to the children. I have no doubt the children have been spoken to about the breakdown of the relationship and Mr B’s relationship with Ms R in adult terms and in an inappropriate fashion. I say this on the following basis:
• Comments I accept she made to Marilyn and to which I have previously referred. • She was derogatory about Ms R on the basis that her husband having a girlfriend despite their separation was against “their” religious beliefs. The children were aware of the concept of adultery and that it is one of the 10 commandments. Mrs B used her religious beliefs in a divisive way. • She called Ms R a hypocrite when Ms R professed to being a Christian. I also accept she referred to her as a “skanky girlfriend”. This was in the presence of the children. 145 Despite an initial good relationship with their father this soon soured when “the
other woman” came into the picture. Given Mrs B’s very close and entwined relationship with the children her views of Ms R were absorbed by them. They have found fault with their father and with his attempts to see them – justified or not.
146 On 12 December 2007 the Court made an order that each party was to facilitate
the children telephoning the other party whenever they were in that party’s care and if the children so requested. Mrs B provided Teresa and Donald with mobile telephones. I accept that these were often used for long voice and text message contact during the time the children were with Mr B. The children used the telephones to advise Mrs B of what was going on, and whether it was reported accurately or not, Mrs B reacted, often in an inappropriate fashion and without questioning the truthfulness or otherwise of her children’s disquiet.
147 At a conciliation conference on 4 April 2008 it was agreed the children would
attend their time with Mr B without the mobile telephones. Mrs B would remove
them. She failed to do so.
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148 I also accept the children were frequently ill-prepared or late for collection at the
commencement of contact. However, I am also satisfied that Mr B was not always
punctual himself.149 Mrs B has five children by three fathers. Kevin and Marilyn do not know their
fathers. Mrs B deposes she was not in a relationship with either of them. Marilyn deposes her mother told both her and Kevin they were violent men and she did not let them know them or about them for their own protection.
150 Marilyn deposes she had asked about her biological father, but this met with an
unflattering response about him by her mother. She said her mother refused to tell her
anything about him.151 Mrs B accepts neither Marilyn or Kevin know the identity of their father despite the children wanting to know their origins.
152 Although the Court knew very little about Mrs B’s previous relationships it
seems clear she was unwilling to facilitate any form of contact between Kevin and
Marilyn and their biological fathers.153 On 31 March 2008 the children started counselling sessions at a local centre.
Mrs B herself had counselling for the alleged abuse she said she had suffered at the hands of Mr B. She wanted the children to have counselling to deal with their exposure to conflict at handover and also the direct physical and psychological violence when spending time with their father.
154 At trial Mrs B said her concerns about the children were that after contact they:
• would not talk, and • they fought. She said she wanted them to go to counselling sessions and explained the issues as being:
• the children were upset with the visits, • they were not opening up to her, and • they were fighting and emotional. I do not accept the children’s behaviour as expressed by Mrs B necessarily correlates with what she saw as the nub of the issue. Although it is likely the children needed some assistance the evidence she gave at trial does not necessarily demonstrate the children’s issues to revolve around Mr B’s behaviour, but rather the coming to terms with a new post-separation situation.
155 Although, at trial, Mrs B said she thought it was best for the children to have a
relationship with their father I am not satisfied those words have ever really translated into positive action on her part. She has pandered to the children’s complaints, most of which I consider to be quite minor. She has sided with the children against Mr B at the slightest opportunity. She has involved herself in almost every aspect of the time the children spend with him, thus precluding Mr B developing a relationship with the children. This includes frequent contact with the children on their mobile phones and
[2010] FCWA 35
at least by 26 April 2008 personally ferrying the children around in her car to places they were to spend time with Mr B. She occasionally attended the venues he had planned to go with them.
156 Mrs B accepts, although does not agree with the exact wording, that on about
9 February 2008 she said words to Mr B to the effect that he could not force the children to do something they did not want to do as they would simply end up hating him. This was said in the presence of the children when Mr B was trying to cajole them into coming to spend time with him in accordance with the orders, but they were showing reluctance.
157 In his application initiating proceedings filed on 12 October 2007 Mr B sought
the children live with their mother and he simply spend time with them. He had not suggested, at that stage, the children be away from their mother. It was only on 29 May 2009 when he filed an amended application he sought the children live with him. This was after the publication of the Single Expert’s report.
158 Despite Mr C’s recommendation that if there is a change of residency a period of
time needs to elapse before the children see their mother again, Mr B was reluctant to
accept this knowing how much the children love and would miss their mother.159 I accept despite his personal difficulties with Mrs B he would facilitate a relationship between her and the children.
| (d) | the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: | |
|
160 The children have effectively been separated from their father since early 2008. If this continues it is likely to impact on their long-term development. Mr C says there is likely to be significant long-term effects at an emotional level if the children are completely separated from their father. Having assessed the father, he says all three children will have significant benefit from his input into their personal development in that he takes a broader view of their needs. He does not mix up his own needs with their needs.
161 Mr C’s view is the children are going to have to undertake social and
educational rehabilitation in the coming years and Mr B’s input into that will be
important. He reports:“The father represents a significant lifeline to the children to retrieve their
social, emotional, intellectual and educational normality.”
162 Mr C, however, made no bones about a change in residency being extremely
difficult. If there was such a change he said things would get worse before they got
better.
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163 He said if they live with their father they will be able to maintain a relationship with their mother.
164 The children at the very least in the short to medium term are likely to be
completely devastated by a separation from their mother. They have a close relationship with her and since they were very young have been part of a unit of four. Their mother is rarely away from them. They have no longstanding or consistent social network. They have no-one independent to discuss things with. Any separation from their primary carer on which they are unusually dependent will have an effect.
165 Since early 2009 Mrs B has gradually, in the context of the court proceedings,
made increasing efforts to socialise the children and to improve their educational
standard.166 At the beginning of 2009 Donald was enrolled in Tae Kwon Do. The girls were
enrolled some time later in order to give Donald a good independent start at that
activity. He has taken to the discipline with enthusiasm, as have the girls.167 Mrs B has also made efforts to bring the children’s educational standard to a satisfactory level and now proposes the girls attend the private school in 2011.
168 If they live with their father their living environment will be completely
different. Their father plans a move to Perth from the regional centre, a widening of the household to immediately include Ms R and Sarah. The children will be without their few friends and their pets of ponies and a cat. They will be doing their social activities in a different social milieu.
169 There will be a change of schooling method and environment for the girls and
Donald will be schooled at home mostly by Ms R, a person he has historically resented. They will be living within a family holding different religious views and who may eat differently.
170 The children would not only struggle to be away from their mother, but would have the challenge of a completely different way of life.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
171 There is no suggestion the children be separated from each other. They are likely to have more contact with family members if they live with their father.
| (e) | the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; |
172 I do not consider the distance between Perth and the regional centre to be a
determining factor here. Neither party raised it as a real difficulty. It may be
inconvenient and the cost of petrol may be an issue.
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| (f) | the capacity of: | |||
|
to provide for the needs of the child, including emotional and intellectual needs;
173 Although I accept both parties have the capacity to provide for the physical needs of the children there are some other areas of real concern for the Court.
174 One of my concerns is about the children’s past and present education. All
children commenced their primary school at the private school. Both Donald and
Teresa had to repeat their pre-primary year. Mr B deposes:
“97. … Donald spent very little time socialising with people outside of the family when he was very young and he found his time at school difficult because he was so shy. Donald would never talk at school even to his friends.”
A transcript of the proceeding will be placed on the court file and be available on request.
I certify that the preceding [273] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
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