B & L
[2006] FMCAfam 69
•22 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & L | [2006] FMCAfam 69 |
| FAMILY LAW – Application to vary existing care arrangements – currently shared care – change in circumstances – Rice and Asplund – shared care not working – different rules and routines – children seek more flexibility – poor communication. |
| Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2) Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215 R and R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MTB |
| Respondent: | MDL |
| File Number: | CAM 1370 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 14 & 15 July 2005 |
| Delivered at: | Canberra |
| Delivered on: | 22 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Friesen |
| Solicitors for the Applicant: | Dibbs Abbott Stillman |
| Respondent: | In person |
ORDERS
The applicant mother prepare orders consistent with the attached reasons for judgment within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1370 of 2003
| MTB |
Applicant
And
| MDL |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the contact and residence arrangements for three children, JFL born January 1991, VML born January 1993 and ADL born April 1994.
The existing orders were made by the Family Court on 11 December 2002, partly by consent and partly following a hearing. They are somewhat detailed. Although giving the mother residence, in practice they have provided for shared care when the father is residing in the Canberra region with the children living with him from Tuesday to Monday each alternate week. Different arrangements applied when he was living in Darwin or more than 30 kilometres from the mother.
The application filed by the mother on 30 November 2004 seeks variation of the existing orders such that all three children reside with her. She further proposes that VML and ADL have alternate weekend contact and additional contact with the father on a flexible basis while he resides in Canberra. She proposes alternative arrangements when the father is not living in the Canberra region.
The father opposes the application. He wants no change to the current orders.
Background and chronology
The mother was born in June 1968 and is presently 37 years of age.
The father was born in July 1962 and is presently 43 years of age.
Both parties are officers in the Australian Army.
The parties married in Melbourne in December 1989 and separated in November 1996 whilst living in Sydney. They were divorced in November 1998.
In December 1996 the father was posted to Melbourne.
Parenting orders were made in the Liverpool Local Court on 9 April 1997 providing residence of the children with the father and reasonable contact for the mother.
In August 1997 the mother and her then partner relocated to Albury and in January 1998 she and her partner relocated to Darwin.
In about January 1999 the father and his present wife SL commenced cohabitation and married in December 1999. They have two sons, EL born October 2001 and GL born June 2003.
In March 1999 the mother married her then husband AJ.
In August 1999 JFL moved to Darwin to reside with the mother.
In December 1999 the father was posted to Canberra. In early 2000 the mother and her then husband moved to Townsville and then in May 2000 the mother relocated to Canberra.
In July 2000 the mother and AJ separated.
On 11 December 2000 orders were made in the Family Court providing for the mother to have contact each alternate weekend from after school Friday until the commencement of school Monday and three Wednesday nights each month.
On 19 January 2001 orders were made in the Federal Magistrates Court providing for the children to attend HS School, ACT in 2001 provided the mother meets the school fees.
On 19 January 2001 final consent orders were made in the Family Court providing for the mother to have alternate week contact from after school Wednesday until the commencement of school the following Monday and all other Wednesday nights, all of the July school holidays in odd years and all of the September holidays in even years, and alternate halves of all Easter and Christmas school holidays.
On 28 November 2002 consent orders were made in the Family Court providing for the two girls to reside with the mother and a Child Support Agreement was made.
On 29 November 2002 a hearing was held in the Family Court on the residence of ADL. On 11 December 2002 an order was made for ADL to reside with the mother, consolidating this with the consent orders for the girls.
In January 2003 the father moved to Darwin.
In September 2003 the mother commenced a de facto relationship with DL. She commenced living with him and his two children AL born April 1992 and PL born October 1994.
On 30 November 2004 the mother filed the present application on the residence and contact arrangements for the three children.
On 16 December 2004 the mother and DL married.
On 22 December 2004 interim orders were made by Brewster FM providing for only VML and ADL to have contact with the father over the Christmas school holiday period in Darwin.
In January 2005 the father relocated to Canberra.
During the hearing the father indicated that he, SL and their two boys would move to Victoria at the end of 2005.
The applicable law
Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to s.65E which provides that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The principles set out in sections 60B(2) have particular relevance in these proceedings. They are:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.
Fundamentally, these provisions emphasise the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child's best interests.
In a case where a party seeks to vary existing orders, it is appropriate to have regard to the threshold test and apply the principles derived from Rice v Asplund (1978) 6 FamLR 570; (1979) FLC 90-215. In that case the Full Court of the Family Court held that:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied … that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The decision in Rice v Asplund has been subsequently followed in a series of cases (D and Y (1995) FLC 92-581; King and Finneran (2001) FLC 93-079). In King and Finneran, Collier J sitting on appeal explained the way in which the Court should apply the test:
44.To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary, collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
49.…this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50.…The changed or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
If this threshold is met, the Court must then determine the issues in the ordinary way. Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order.
Section 68F(2) sets out the matters that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests in residence, parenting and contact arrangements. Paragraph (l) permits the Court to take into account any other fact or circumstance that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed (see B and B: Family Law Reform Act 1995).
The mother’s case
The mother says that the existing parenting regime, which includes a shared caring arrangement when the parents live within 30 kilometres of each other, does not promote the children’s interests. She says that since the making of the orders in December 2002 there have been a number of significant changes which justify a change. The most important of these are that she has repartnered and acquired step-children, and the breakdown in JFL’s relationship with her father.
The mother says that the children appeared to show reluctance in having contact with the father and his present wife, SL and their two sons during 2003 and 2004. She points to occasions during this period when the children were left in the care of his wife or parents while he travelled away for work.
For example, in January 2004 the children, their step-brothers, the father and his wife stayed with his parents in Tasmania for four weeks. When the father left a week early to return to work in Darwin, JFL telephoned her in distress and told her mother that she had left her grandparents home. SL had called her a bitch and SL and her grandmother had a huge row. She refused to return to her grandmother’s home. SL had threatened to return home the following day. JFL, VML and ADL were being left in the care of their grandparents. VML and ADL were upset. The mother encouraged JFL to return to her grandparents’ home and told her that she could not interfere as the children were in their father’s care. The mother attempted to contact the father on his mobile telephone but was unsuccessful.
The mother claims that the children told her on their return from school holiday contact in September-October 2004 they would like a reduction in contact at Christmas. The mother e-mailed the father raising the children’s request but received no response. However, on 11 November 2004 the father telephoned the mother and advised her that he would be posted to Canberra in 2005 and expressed a desire to resume a shared care arrangement.
JFL was upset by the fact that she had to spend four weeks in Darwin. She expressed a desire to spend time with her friends in Canberra. It was her view that her father and SL did not want the three children there. ADL and VML however were enthusiastic about spending the Christmas holiday with the father but not for four weeks. VML was concerned that if she or JFL was not with ADL he would have no one to protect him.
The mother says that the children opposed the resumption of a shared care arrangement. They wanted a block period of time with the father every second weekend. JFL found it difficult at her father’s home as it interfered with her routine and time with her friends. She did not feel comfortable with SL. ADL and VML wanted to spend longer weekend contact with the father.
On 21 November 2004 the mother e-mailed the father draft consent orders reflecting the children’s wishes but there was no response. This led the mother to file the present application. On 22 December 2004 Brewster FM varied the orders to provide that VML and ADL spend three weeks in Darwin with the father over the Christmas school holiday period. JFL remained in Canberra with her mother.
The mother says that ADL telephoned her from Darwin and advised her that the father’s relocation dates to Canberra had been brought forward. He was not happy because he and VML now had to spend a week packing boxes. They returned to Canberra on 15 January 2005. The father moved to Canberra on 25 January 2005 and into a house near the mother on 8 February 2005.
The mother testifies that since March 2005 the children’s commitments have not been met by the father, particularly some sporting and school activities.
The mother attests that she has significant concerns about the standard of care the children receive whilst in the care of the father. She says that the children are expected to do chores, are not fed properly and do not have enough clothes when at the father’s. They state that they are left alone locked in the house whilst the father and SL are at work. The children are not provided with a key to the father’s home and cannot get into the house after school.
The children report that their relationship with SL is not positive. They do not feel comfortable in her care. ADL is treated badly by SL. JFL told the counsellor, Ms Lang, that ADL is picked on by SL.
The mother highlighted JFL running away from her father’s care on 30 April 2005 and refusing to return. JFL said that following an incident with a house key she was grounded for two weeks. She regarded this as unfair and she wished to visit a friend. SL locked her in the house. JFL later left and was picked up by her mother. She had since refused to talk to her father or return to his home. She had also engaged in self harm.
The mother says that she has maintained communication with the father regarding the children’s commitments, issues and needs. This she says has not been reciprocated. She does not receive any correspondence when the children are returned to her care. She provides examples relating to school photos, ADL’s cricket and parent-teacher interviews.
DL, the mother’s husband, provided evidence in support of her position.
The father’s case
The father wants the application dismissed. The existing orders of 11 December 2002 encompassed all current and future needs, including the previous period while he was in Darwin, when the parties are living within 30 kilometres of each other and when they are further apart. Further they allow for additional contact “at such other times as may be agreed between the parties”. This provision has already been utilised to change the existing contact arrangement in Canberra.
The mother attempts to undermine his role as father to the degree that is having a detrimental effect on the children. It and his separation from his children were also adversely affecting his health. He therefore proposed to take leave from the Army and move to Victoria for at least a year from the end of 2005 to allow his health to improve. He anticipated the possibility of then returning to the Army.
The father denies that the children have been locked in his house. The children all each do household chores to earn pocket money by keeping their rooms clean, putting away their dirty washing in the laundry basket and folding and putting away clean clothes, ironing their school uniforms and setting and clearing away the table and assisting with cooking.
In response to the allegation that the children are not properly fed the father says that he and SL are concerned that the children eat too much junk food. They encourage the children to eat more fruit. The father also pointed out that his and SL’s two boys both suffer from severe allergies. As a consequence they have special diets and eat some different foods from the other children.
The 30 April 2005 incident was not as portrayed by the mother. JFL removed a deadlock key without his permission. She was therefore grounded for a week. The father says that JFL has lied about or misrepresented various matters. He accepted that since the April incident his relationship with JFL had been fragile, although he thought that they had had a good and open relationship. JFL’s relationship with SL was “fractured”. Her running away had been a pretty significant act. Her reluctance to spend time at his house was because he disciplined her.
The father agreed that he did not respond to all the mother’s e-mails. The majority were just providing information. But he does speak to her on the phone about flexibility in childcare arrangements.
The father was cross-examined about various comments made by the three children to school counsellors. These comments generally confirmed many of the concerns raised by the mother, in particular the difficult relationship of particularly JFL and ADL with SL and of JFL with her father. The father acknowledged that these comments were likely to have been made by the children. However he questions the weight that should be given to them in light of the children’s ages. He also sees them as children’s perceptions not accurately reflecting the reality.
The father says that the mother has embarked on a campaign of denigrating his role as a father and tries to portray everything that he does in a bad light. He claims that the mother has influenced JFL in not wanting to come to his house. He also maintains that he would not be manipulated by JFL.
The father’s evidence was supported by that of his wife, SL. SL said that her relationship with JFL was reasonable but strained, sometimes very strained. She said it was strained because she supports her husband on the upbringing of the children. With VML she has an excellent relationship and with ADL a reasonable one, although difficult in some respects. He is concerned about getting close to her.
Because of her previous experiences SL has had very little communication with the mother over the past five years. They have spoken in emergencies but she does not get into conversation unless she absolutely has to.
The family reports
There have been four family reports prepared in this matter, one by Ms Connor in November 2002 and three by Ms Lang dated April 2001, February and July 2005. Only Ms Lang gave oral evidence.
In her July 2005 report Ms Lang observed:
·a serious rift had developed between JFL and her father, with her resentment focusing on SL and her influence in the household
·JFL wanted to continue her relationship with her father, but she did not want to stay at her father’s apart from a night or Sunday lunch
·when tension has eased JFL would like some holiday contact with her father in Victoria
·VML sought more flexibility – ideally she would like to move freely between the two homes
·in Canberra contact could be each alternate weekend
·VML would love to live with her father in Victoria “but I’ve got school here – I do well at school”
·when her father moved to Vicoria VML would like one weekend a month and half school holidays
·ADL was struggling with the ongoing pressure caused by his parents’ dispute
·he was frequently close to tears, so no attempt was made to ascertain his thoughts about future living arrangements.
Ms Lang concluded:
7.0A shared parenting arrangement is ideal for children of separated parents when it works. It approximates a continuity of family life and allows children to continue their developmental tasks with each parent. However, the arrangement does not work well unless certain conditions are present. These include a co-operative relationship between parents, consistent rules/routines across both households, focus on the needs of the children rather than those of parents, and flexibility in terms of the children moving between their two homes. Unfortunately, several of these conditions are absent for MDL and MTB and, consequently, the family is struggling to cope with a shared parenting arrangement.
…
7.4In consideration of the above, I am inclined to agree with MTB that a variation to the existing parenting orders is required. JFL and VML have expressed the wish to primarily reside with their mother. JFL for emotional reasons, VML for practical reasons. JFL wishes to have flexible contact with her father. Counselling intervention might be necessary before she is able to take the step of spending time in his household. VML wishes to spend each alternate weekend with MDL and to have the freedom of spending time with him during the school week. I believe she is earnest in her intention to maintain substantial contact with her father and his family. ADL has a particularly fragile make-up. In my opinion, he will benefit from having one primary home base. It might allow him to better focus on his developmental tasks and own needs rather than those of the adults. I understand that there is no dispute regarding the parenting arrangements for VML and ADL once MDL relocates to Victoria.. Considering JFL’s age, a more flexible contact arrangement might be suitable.
A number of further points emerged from Ms Lang’s oral evidence:
·she agreed that the father was a competent and caring parent, but he had fairly set ideas about raising children
·he probably was not “getting all of the messages” conveyed by the children
·the current orders provided certainty in routine, but for JFL and ADL who were not coping it was not providing stability
·the rift in JFL’s relationship with her father would only be a temporary one as JFL became more mature and her father a little more understanding
·continuation of the current shared care arrangements in Canberra might impact negatively on the children, especially on ADL. He would benefit from having a home base where he lived for most of the time
·contact arrangements for ADL and VML should be aligned.
Consideration
Change in circumstances
The current orders for JFL and VML were made by consent and those for ADL after a hearing in December 2002.
As set out earlier where a party seeks to vary such final orders, the threshold test enunciated in Rice and Asplund and relevant later authorities must be met.
The mother says that since the making of the orders in December 2002 there have been a number of significant changes which justify a variation. The most important are that she has repartnered and acquired step-children, and the breakdown in JFL’s relationship with her father. Others include that the children were two years older at the time of the application, one had become a teenager, the father had returned to Canberra and had intimated that he was planning to move to Victoria, and that the children wanted a change.
The father asserted that there had been no relevant change. The existing orders of 11 December 2002 envisaged most of the circumstances on which the mother relied. Further they allow for additional contact “at such other times as may be agreed between the parties”. This provision has already been utilised to change the existing contact arrangement in Canberra. He contended that the mother’s relationship with her new partner predated the orders. However the evidence before me on this was to the contrary.
Some of circumstances advanced by the mother in themselves fall far short of meeting the Rice and Asplund test. Those changes are no more than ones which have occurred “by the passage of time or in the usual course of human activity” (King and Finneran).
Nevertheless I am comfortably satisfied that taken collectively the changes are of sufficient significance to require reopening the residence and contact orders. In particular, the mother’s repartnering and the serious concerns about the nature of two of the children’s relationships with their father and his wife are sufficient to reach this conclusion.
Best interests of the children
The test is what contact arrangements are in the best interests of the children. For this I am bound to consider the matters set out in s.68F(2) of the Act insofar as they are relevant.
Paragraph (a) requires me to consider any wishes of the children. Where appropriate the Court can give weight to children’s wishes
(H v W (1995) FLC 92-598; Re G: Children’s Schooling (2000) FLC 93-025; R and R: Children’s Wishes (2000) FLC 93-000).
JFL and VML both expressed clear wishes regarding their living arrangements and their relationship with each parent. JFL expressed a wish to continue a more flexible relationship with her father and if he were to relocate to Victoria she would like to visit him during school holidays. But she would like to spend weekends with her friends. JFL is now 15 and there is nothing before me which suggests I should not attach significant weight to her views.
VML, now 13, expressed a wish for a more flexibility in contact but would like to reside with her mother and spend each weekend with her father until he relocates to Victoria. She showed a willingness to have further flexible contact with her father during the school week. She expressed a willingness to spend more time with the father when he relocates to Victoria. VML was described as mature and pragmatic. Again some weight must be given to her views.
ADL found it difficult to express his thoughts about future living arrangements. Because of his particular sensitivity and some personal difficulties, Ms Lang did not pursue this with him.
Paragraph (b) concerns the relationships a child has with parents and other persons. I have considered this issue to some extent earlier in these reasons.
JFL was first interviewed by Ms Lang in April 2001 and it was noted at that time she had a good relationship with each of her parents but she had a significant attachment to her mother. However, by the time of the updated family report dated 7 July 2005 JFL’s relationship with her father had deteriorated and she was having particular difficulties with SL. She does not want to go to their house. She feels that SL thinks that she wants to play a dominant role in the father’s household. JFL does not want this and is prepared to accept that she and SL do not get along. JFL feels that her father is caught in the middle of the feud between her and SL. Her father sides with SL. She says that her father cannot bring SL and her together because if that happened both SL and she would be unhappy.
JFL’s relationship with her father and step-mother reached a crisis point when she was grounded for keeping a key to her father’s house. JFL described incidents regarding SL’s behaviour which she perceives as examples of mistreatment of her, VML and ADL.
VML has a good relationship with each parent and step-parent, although she describes some difficulties when she is at her father’s house.
ADL is the youngest of the siblings and has a sensitive nature. He found that his father is pretty okay about things but he had a stronger attachment to his mother. If he was hurt he would approach his father. He appears to have a good relationship with his step-father. He said to Ms Lang that he can talk to his step-father but he keeps a lot of things to himself. It is apparent ADL is struggling with the ongoing conflict between his parents.
It is clear that the three children love their parents and wish to continue a relationship with both parents.
Paragraph (c) refers to the likely effect of any changes in a child’s circumstances, including the likely separation from any relevant persons. These children have been subjected to periods of separation from parents, most recently when the father was in Darwin. The changes proposed by the mother will not have a significant impact in this respect.
No evidence was adduced on paragraph (d) which is concerned with the practical difficulties and expense of contact.
I am satisfied that both parents have the capacity to provide for the children’s needs, including their emotional and intellectual needs (paragraph (e)).
I have made comments earlier on the children’s ages and level of maturity (paragraph (f)).
There is nothing of real significance to suggest that the children are in danger from physical or psychological harm or from being subjected to or exposed to abuse, ill treatment, violence or other behaviour (paragraph (g)). However, ADL has suffered from the family bitterness and JFL has a tenuous relationship with her father and SL. Counselling may be appropriate for both. I understand that ADL is seeing a counsellor.
Paragraph (h) requires me to have regard to the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parents. The evidence suggests that in their different ways both father and mother are good parents.
However, it is very clear that the parties’ relationship has become acrimonious. The level of communication between the parties is poor. This has led to false assumptions and misunderstandings on both sides causing greater tension. I am concerned about the impact that this is having on the children and their relationships with both parents. All three children are aware of the conflict between their parents and the ongoing litigation.
In particular I note the concerns raised by Ms Lang regarding ADL. He is anxious and sad and is confused about his feelings. He finds it difficult to talk to either parent in fear of hurting their feelings. I am concerned that this could lead to serious emotional problems for ADL.
There is a marked difference between each household in household rules. The children find it difficult to cope with the different parenting and household styles. This is especially difficult for JFL given her age and stage of development.
Paragraph (k) draws attention to whether the orders made would be less likely to lead to the institution of further proceedings. It is without question that this matter has had a long history of litigation. I am concerned that if the parties do not improve their relationship and communication that this will result in further litigation.
Conclusions
It is abundantly clear that the current regime is not working. It is not promoting the children’s best interests. It is one essentially of shared care when the parents are living within 30 kilometres of each other. As Ms Lang has said shared care will only work under certain conditions.
Here
·the parenting relationship has become increasingly acrimonious
·there is poor communication between the households, indeed the mother and step-mother have rarely conversed
·there is a marked difference in rules between households
·there is not the necessary flexibility.
In my view the situation has been reached where neither party has considered the children’s interests as paramount. Rather more attention has focussed on the parent’s needs and interests.
I therefore will vary the previous orders
·the children shall reside with the mother
·if the parents live within 30 kilometres of each other the father shall have contact for each alternate weekend from Friday until Monday with block half holiday contact
·if the parents reside more than 30 kilometres apart the father shall have contact on the fifth weekend of each term and half of all school holidays
·JFL’s contact will be at her discretion
·other contact shall be on festive occasions - Christmas Day, Easter Sunday, Fathers Day, Mothers Day, with telephone contact on birthdays of the children and the parents - and as agreed between the parties.
The mother sought alternate fortnight contact for the father at Christmas. I have rejected this proposal. It is important for the children to have block contact with their father at this time. It would also make longer family holidays virtually impossible.
In my view having regard to all the evidence before me this regime is in the best interests of the children.
To accommodate these changes I propose to only discharge orders 4 to 7 made on 11 December 2002. Orders 8 to 21 were not the subject of evidence or submissions.
The applicant mother is to prepare orders consistent with my reasons for judgment.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 22 February 2006
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