Beckworth and Garnett
[2017] FCCA 733
•9 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKWORTH & GARNETT | [2017] FCCA 733 |
| Catchwords: FAMILY LAW – Interim parenting – where children expressing strong views – where Court declines to place weight on those views in circumstances where children were interviewed by Mother’s solicitor and Counsel and where it is unclear whether, and if so to what extent, the children’s expression of views has been influenced by this. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Bondelmonte & Bondelmonte [2017] HCA 8 MRR v GR [2010] HCA 4 |
| Applicant: | MR BECKWORTH |
| Respondent: | MS GARNETT |
| File Number: | SYC 6947 of 2012 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 22 March 2017 |
| Date of Last Submission: | 22 March 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 9 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Doosey of Counsel |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Counsel for the Respondent: | Mr Thomas of Counsel |
| Solicitors for the Respondent: | A R Connolly & Company Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Campbelltown Family Law |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Mother’s Application in a Case filed 27 January 2017 be dismissed.
The child X, born (omitted) 2000 (‘X’) live with, spend time with and communicate with each party and her siblings in accordance with her wishes.
Within 7 days of the date of these orders the parties do all acts and things necessary to obtain a referral for X to attend upon her treating General Practitioner to obtain a Mental Health Plan, AND:
(a)The General Practitioner (and mental health professional to whom X is referred) be provided with a copy of these orders and a copy of the Child Inclusive Conference Memorandum to Court dated 19 December 2016; and
(b)The parties inform the Independent Children's Lawyer of the particulars, including the name and contact details of the General Practitioner and mental health professional to whom X is referred.
The child Y born (omitted) 2003 ("Y") live with the Father.
Y spend time with the Mother from 10am until 7.30pm on Saturday:
(a)13 May 2017 and for each alternate Saturday thereafter; and
(b)On any other days and times as the parties agree.
Y spend overnight time with the Mother in accordance with his wishes AND that the Father encourage Y to spend overnight time with his Mother in accordance with his wishes.
Within 7 days of the date of these Orders the parties do all acts and things necessary to arrange for an appointment be made for Y to attend upon his usual treating Paediatrician and:
(a)The parties provide the Independent Children's Lawyer with details of the appointment made;
(b)Following the parties' compliance with Order 7a. herein, the Independent Children's Lawyer provide the Paediatrician with a copy of these Orders;
(c)At Y's appointment the parties provide the Paediatrician with their concerns including giving full written particulars of what they describe as Y's more recent challenging behaviours and anxiety;
(d)The parties give the Paediatrician all necessary authorities to enable him/her to discuss Y's treatment with either parent individually, and with Y's school, if necessary.
The child Z, born (omitted) 2005 continue to live with her father and spend time with her mother in accordance with existing orders.
Both parents be permitted to attend the children's sporting events/extra-curricular to which parents are normally invited to attend AND each parent shall do all things and complete all necessary documents to ensure that both parents are provided with the full particulars of the children's sporting/extra-curricular activities.
Both parents be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
(b)Discussing these court proceedings or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
(c)Questioning the children about the other parent's household or the other parents' extended family.
(d)Questioning the children about the discussions that the child has had with their counsellor and/or the independent children's lawyer.
For the purpose of the children spending time with each parent, changeover shall occur at (omitted) McDonalds, unless otherwise agreed.
Each party shall ensure that the other party is kept informed of:
(a)Any medical problems or illnesses suffered by X, Y and/or Z while in their care;
(b)Any medication that has been prescribed for X, Y and/or Z;
(c)Any specialist appointment (including appointments at Hospital) that are made for X, Y and/or Z AND each party shall provide the other with the full particulars for any appointments made including the date and time of the appointment and contact details.
For the purposes of communicating information between the parties the mother and the father shall:
(a)communicate by text message matters of an urgent nature; and otherwise;
(b)communicate by email about day to day matters.
Both parties be restrained from communicating information between the parties via the children or via the children's mobile phones.
Within 14 days of the date of these Orders the parties do all acts and things necessary to contact Relationships Australia (Ph: (omitted)) to enrol in the Parenting Orders Program and:
(a)Shall attend and complete such program when it is made available to them, and
(b)Shall provide information to the Independent Children’s Lawyer of their attendance.
Leave be granted to the Independent Children's Lawyer to relist the matter on 72 hours’ notice by communication with Chambers in appropriate circumstances.
The matter be adjourned to 10 July 2017 at 9.30am for Mention.
THE COURT NOTES THAT:
(a)The purpose of the adjourned date is to consider expert evidence and an early hearing of the matter.
IT IS NOTED that publication of this judgment under the pseudonym Beckworth & Garnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
SYC 6947 of 2012
| MR BECKWORTH |
Applicant
And
| MS GARNETT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the interim orders that the Court has made in relation to three children; X born (omitted) 2000, now aged 17 years, Z born (omitted) 2006, aged 10 years, and their brother Y born (omitted) 2013, aged 3 years. At the moment, X lives with her mother and Y with his father. Each parent agrees that for all practical purposes those children should remain where they are. Z lives with her father, and spends time with her mother. The Mother proposes, in effect, that this arrangement be reversed.
There is evidence to suggest to the Court that Z has expressed a firm view that she would prefer to live with her mother, and spend time with her father. One of the issues in this case is the weight that should be given to those views.
Background
The Father is 49 years old, the Mother is 45 years old. They married in (omitted) 1998, and separated in February 2010. Since separation, the children have predominantly lived with their father. Indeed, on 10 December 2012 the parents entered into consent orders that provided for the children to live with their father, and spend time with their mother. Both parties were legally represented at the time of entering into those consent orders and, indeed, it seems that the Mother’s solicitors prepared the relevant order. The parents also entered into final property orders at the same time.
The parents agree that Y has stopped spending time with his mother in recent months, although the parents disagree about the reasons for this occurring. It is also common ground between the parents that since an incident that occurred on 6 November 2016, X has remained in the Mother’s care.
On 17 November 2016, His Honour Judge Monahan made interim orders, and delivered reasons for judgment, dealing with issues raised in the Father’s Application in a Case filed 8 November 2016 in which he sought, in effect, that the Mother return X and Z to his care, or that a recovery order issue. The Mother’s response to that application sought orders that both children remained with her, and spend one night on alternate weekends with the Father.
The orders that His Honour made included for the parties to attend a child inclusive conference, for an Independent Children’s Lawyer to be appointed, for the existing orders to be suspended insofar as they related to X, that the Mother cause Z to be returned to her father’s care and a recovery order issue, and that Z be re-enrolled in (omitted) Public School. His Honour made a number of ancillary injunctions and notations. The matter was adjourned to 30 January 2017 before me. The purpose of the mention was to consider the Child Inclusive Conference memorandum, to hear from the Independent Children’s Lawyer as to her preliminary views, and to further manage the dispute between the parents.
The matter, in fact, came before this Court on 30 January 2017. Having considered the material before the Court as at that day, the Court of its own motion made further orders restraining the parents from discussing the proceedings with or in the presence of the children or from permitting any other person to do so. It was clear that the matter had not settled, so it was allocated an interim hearing at 9 am on 22 March 2017. Directions were made in this regard.
The competing proposals at the interim hearing
The practical effect of the Father’s proposal was that the Mother’s Application in a Case be dismissed, so that Z remained in his care, and spent time with the Mother. X would continue to live with her mother, and the Father proposed that the orders be varied insofar as they related to Y, so that he continued to live with his father, but spent time with his mother.
The Mother’s proposed orders at the interim hearing differed significantly from the Application in a Case that she had filed on 27 January 2017. In the said application, she had sought orders that all three children live with her, and spend time with their father. By the time of the interim hearing, however, the effect of her proposal was that the existing orders be varied so that both X and Z lived with her, and both communicate and spend time with the Father - in relation to X, in accordance with her wishes, and in relation to Z, as agreed between the parties. The Court must record its surprise about the Mother’s proposal for Z to spend time with her father. To suggest that the parents could reach agreement about this issue, given the seemingly intractable conflict between them about the children, is either naïve or disingenuous. It is apparent that the Mother had not given any serious consideration to what proposal she would advance to the Court about Z spending time with her father, should the Mother’s application for Z to live with her not be accepted.
The children were represented by Ms B, their Independent Children’s Lawyer. The effect of her proposal was that X live with and spend time with her parents as she decides. The Independent Children’s Lawyer proposed that the parties obtain a mental health plan for X. In relation to Z, it was proposed that Z live with her father until the conclusion of term 1 this year, but thereafter live with her mother. On this scenario, Z would be enrolled at (omitted) College where her sister X attends. Z would spend time with her father each alternate weekend from Friday afternoon to Sunday evening. In relation to Y, he would continue to live with his father, but spend time with his mother on Saturdays, and overnight in accordance with his wishes. A proposal was made for Y to attend on his usual treating Paediatrician.
The evidence filed
The Independent Children’s Lawyer relied on the Child Inclusive Conference memorandum dated 19 December 2016, documents produced by (omitted) Public School, and documents produced by (omitted) High School. These documents will be discussed below.
The Father relied on his affidavit filed 15 March 2017, an affidavit from his partner of the same date, and also an affidavit from the Paternal Grandmother of the same date. The Father’s solicitor provided a case outline, and the Father’s Counsel, Ms Doosey provided written submissions.
In the Mother’s case, she relied on her affidavit of 15 March 2017, and that of her partner sworn 16 November 2016. Her Counsel, Mr Thomas, provided a short case outline.
The issues for determination
The main issue in this case was to determine whether Z should continue to live with her father, and spend time with her mother, or whether she should live with her mother, and spend time with her father. As part of this, the weight that the Court ought to place on Z’s view emerged as a significant consideration. Both the Mother, and Independent Children’s Lawyer, urged the Court to accept Z’s expression of views, as reflected in the evidence. The Father urged a much more cautious approach. Whilst Ms K’s views was obviously an important consideration, it is not the only matter for the Court to take into account.
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
On 1 March 2017 the High Court of Australia handed down judgment in Bondelmonte & Bondelmonte [2017] HCA 8. By way of background, in that case the trial judge had made an order that two boys who were nearly 17 and 15 at the time interim orders were made, be returned to Australia, notwithstanding the fact that the trial judge had accepted evidence that the boys had both expressed views that they wished to continue to live with the Father in (country omitted). The learned trial judge had formed the view, as recorded in the High Court reasons for judgment at paragraph 22:
... that the actions of the Father “have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in (country omitted).”
The learned trial judge had stated that whilst the expressed views of the boys was a consideration to be taken into account, there were other relevant matters, including the relationships that each of the children have with each of their parents, and with each other. His Honour considered that a Family Report would look not just at the views expressed by the boys, but at the dynamics of those relationships and, in particular, the future of the relationship between all the siblings (including a sister who was not in (country omitted)) and both their parents.
The High Court made some important statements about section 60CC (3)(a) which states:
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 view.
The High Court stated at paragraphs 34 and 35:
34. The focus placed by the Father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35. The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings. Section 60CC requires that attention be given by the Court to these matters.
Of assistance is also paragraph 41:
Section 60CC(3)(a) requires that the Court take into account not only the views expressed by the child, but also "any factors … that the Court thinks are relevant to the weight it should give to the child's views". The factors that the provision gives as relevant are the child's maturity or level of understanding, but plainly the Court may consider other matters to be relevant. The factor that the primary judge identified as relevant was the extent to which the boys' views had been influenced by the Father, clearly a matter going to the weight to be given to their stated preferences.
The evidence
The Child Inclusive Conference memorandum to the Court dated 19 December 2016 records the Family consultant’s observation of the parents, and the three children, as well as records their views. For present purposes, the focus will be on Z who had just turned 11 at the time of the interview. Before considering the terms of the memorandum, it is only fair to record the note contained on the document which states:
This memorandum provides to the Court preliminary expert advice. Any views expressed or recommendations made are, of necessity, limited.
With that caveat noted, the Family consultant made some important observations in relation to Z. For example:
·Z explained that the current situation is “confusing” as there is some uncertainty over her future living arrangements. She said that she would like to live with her mother as “girls normally want to live with their mum’s”. She said that she does not get to spend a great deal of time with her mother currently and has been wanting to live with Ms Garnett for many years. She said that Ms Garnett has told her it is Z’s own decision where she lives.
·It appears that Z has a sense of yearning to experience living full time with her mother.
·Z is aware that, if she lives with her mother, she will attend (omitted) College where X is now enrolled in year 12. Z said that she likes the school and would be happy to attend it next year.
·Z said she would like the judge to know that she has wanted to live with her family for some time and that she would be very happy if the decision of the Court was to allow her to move. She said that she would like to see her father over weekends and would be very upset if the move is not allowed. She is aware that Y does not want to move and that he wants to remain living with their father. … Z said that she would accept an arrangement whereby she and Y live apart from one another. She would like to live with her elder sister and said that she feels comfortable talking to X about her feelings.
The Family consultant made a number of important points under the heading “Future Directions”:
·It may be useful for the children to be offered supportive counselling and X may benefit from a mental health plan via her GP given her self-reported anxiety/depression.
·Z and Y have voiced clear views, however, to act on these would involve the children being separated from one another. Y is likely to strongly resist a move to his mother’s care as he seems dependent upon his father for support and to have a more distant/difficult relationship with his stepfather. Z presents as a child who may cope in either environment, however, should her wish to move to her mother’s full-time care not be followed she may require the support of both parents to accept such a decision. Counselling may assist and should her wish be persistent, reviewing arrangements at the end of primary school may be advisable.
Both the Independent Children’s Lawyer, and the Mother’s Counsel, placed considerable weight on the Child Inclusive Conference memorandum. On behalf of the Father, however, it was submitted that this evidence needs to be considered in context of the history of this matter, and the other evidence but in particular the Mother’s own evidence.
The Court observes in relation to this evidence that the Family consultant appeared to adopt quite a cautious, indeed measured, approach when discussing future directions. For example, she found Z to be a child who may cope in either environment. The Family consultant suggested that if her wish was persistent, her arrangements would need to be reviewed before the end of primary school, i.e., this year.
The Independent Children’s Lawyer tendered documents produced by Z’s school counsellor. The notes are dated 6 December 2016. It is important to note the chronology of relevant events. Just a few weeks earlier, Judge Monahan had ordered that Z be returned to her father’s care, after her mother had unilaterally, and contrary to existing orders, retained her and enrolled her in another school. This would, inevitably, have been disruptive to Z, probably traumatic, and the disruption and trauma was probably exacerbated by the order to return to her father’s care. The notes made by the school counsellor suggest a desire by Z to live with her mother. The notes record Z’s perception that “things are more fun at” her mother’s. Z is recorded as having been upset at some children at her school but her counsellor recorded:
But things mostly good lately.
She also records that Z was happy with her teacher and had good friends there.
Both documents referred to above are noticeable for the absence of any complaint by Z in relation to the Father’s household. For example, there is no suggestion that she was unhappy, or had complaints about her father’s discipline of her, or her relationship with her brother Y, or with the Father’s partner. The absence of any such complaint is significant when the Mother’s evidence is considered below, because the Mother places such significance on these alleged concerns.
The third bundle of documents tendered relate primarily to Y. As both parents acknowledge in their evidence, Y struggles at school with literacy, numeracy, social skills, self-regulation and integration. He clearly has some learning difficulties and is supported in class at high school.
As noted above, both parents and their partners provided affidavits which were relied on at the interim hearing. Before considering any relevant detail, it is possible to make some broad observations which, the Court suggests, are apparent from a reading of this material, and should be apparent to the parents themselves. It is clear, for example, that the Mother and father do not trust each other, and that whilst they communicate it can be strained and tense at times.
It is clear from reading the parents’ affidavits that the children are saying things to both parents about what the other parent has allegedly said and done. It is also abundantly clear to this Court that the children have said things to their parents which can only be consistent with a knowledge of what is happening in the Court proceedings. The Court has formed a strong impression from the totality of the material before it that these parents have not been successful in containing the parental conflict, and not allowing it to be played out in front of the children. The strong impression is formed that the three children know far too much about this Court case, and their parents’ perspectives on it.
As will be seen from the discussion of the evidence below, the Court has particular concerns about the Mother’s actions which, whether advertent or inadvertent, have inappropriately involved both X and Z in the issues before the Court.
The Mother’s evidence
The Court must, of course, be cautious about making findings, or even allowing itself to form a strong impression about matters based on material presented before it at an interim hearing. That caution is, of course, appropriate. In this case, however, the Court’s concerns and strong impressions are based on the Mother’s evidence itself, and thus the Court finds itself on firmer ground.
The Mother’s 75 page affidavit consisted of 468 paragraphs. There are a number of disturbing features about it, quite apart from its length. The main purpose of an affidavit is to present evidence by way of facts to the Court. It is not a platform for a parent to express their views and feelings. It is not an opportunity to engage in hyperbole. The Mother’s affidavit is short on facts, but long on feeling and hyperbole. This detracted from its forensic utility. Regrettably, it created the impression of the Mother that she was prepared to exaggerate the facts, and let her subjective emotions cloud the interpretation of events.
Quite apart from these very frustrating characteristics of the Mother’s affidavit from the Court’s perspective, there are many notable inconsistencies in her evidence. For example, at several places in the affidavit she expresses concerns in the most serious terms about her son Y. For example, at paragraph 67:
I believe Y’s welfare is at substantial risk now …
At paragraph 71:
I do not like him living with his father during the week days and I think it would be in his interests if he was living with me and my partner …
Notwithstanding this, the Mother’s own proposal at the interim hearing was that Y remain with his father.
The Mother’s criticism of Y’s behaviour is somewhat surprising. She would be far more aware of the developmental challenges that Y confronts, than the Court would be. She seems to make no allowance for that in her complaints about Y. For example, at paragraph 84 she complains that Y “has also behaved in an unacceptable way physically towards his sister Z”.
At paragraph 85 she raises concerns about the “dishonest behaviour by Y involving the use of my partner Mr T’s credit facilities …”. Nonetheless, by paragraph 89 she states:
I dearly love Y and so do his sisters Z … and X … They should all be together in one home going to the one school …
The Mother alleges at paragraph 82 that:
I believe Y is bullied by the children of the applicant’s father …
The basis of the Mother’s belief is not set out, a common feature of her evidence. At paragraph 99 she seems to acknowledge that Y is anxious and concludes:
Being away from me causing Y anxiety … I believe Y is a loving little boy still, who has been separated from me far too long and should be living with me and his sisters.
At paragraph 107 he talks about Y’s close relationship with his sisters, but at 109 refers to Y as being “guilty of serious misbehaviour with his younger sister in recent weeks.”
The dissonance between the Mother’s concerns about Y, and her proposal to the Court, is quite baffling.
The Court has previously recorded its concerns that the children have been involved in inappropriate discussions with their parents about the Court case. What is striking about the Mother’s affidavit is that she actively complains that she cannot discuss these matters with her children, thus conveying to the Court her belief that it would be better for them if she could. For example, at paragraph 115 she states:
With my children I have been placed in an impossible position, I cannot discuss with them frankly and honestly the issues about the Court proceedings.
At paragraph 117 she again complains “another matter of great concern” is that she cannot discuss the proceedings with Y. Clearly, her attitude is that she would prefer to do this, quite oblivious to the inappropriateness of this, and the difficult position it places the children in.
Paragraph 119 is insightful:
Z tells me that her father says she will be staying with him this year and does not describe honestly the nature of the Court proceedings. He does not disclose to her that if she wishes to be with her sister and living with me a Court may determine that may be in her best interest.
A number of concerns arise. Firstly, the Mother seems to be unequivocally accepting Z’s recount of what her father allegedly said to her. So much so, indeed, that she criticises the Father for not presenting the full perspective that she, the Mother, believes would be appropriate. At no stage did the Mother consider the possibility that Z’s recount is not accurate, that Z may be telling her mother what she feels her mother wants to hear, or the impossible divided loyalty that Z must be feeling when she says these things to her mother.
At several points in her affidavit the Mother complains that when the Independent Children’s Lawyer made an appointment to see the children on the first day of school term this year, the Father cancelled the appointment, having formed the view that it was more important for the children to attend the first day of term this year, particularly, Y. The best example is at paragraph 140 of her affidavit:
In the case of Z it is powerfully against her interests that the applicant father forced her to go to the open day at the new school when she was supposed to be seeing lawyers.
The Mother’s own evidence in this regard creates an impression of a focus on the litigation, rather than a focus on the children. What, in fact, happened is that the children’s appointment with the Independent Children’s Lawyer was rescheduled, with no prejudice whatsoever to the timing of these proceedings.
The Mother gives evidence about the events which led to Judge Monahan ordering that Z be returned to her father’s care. The Mother characterises this as X and Z refusing to return to their father. Indeed, in a perfect example of the Mother’s hyperbole at paragraph 32 of her affidavit, she describes it as “… my two daughters fled …” into her care.
At paragraph 141 she refers to a discussion in mid-August 2012 with X, when, according to the Mother, X refused to go back into her father’s care. Of course, in August 2012 X was 12 years old. The Mother recounts the conversation. X said to her:
Why do I have to go back? I don’t want to.
The Mother said:
I can’t make that decision for you. You need to be sure this is what you want. Why don’t you take some time to think about it?
X was only 12 years old. It was not X’s decision. It was the decision that the Mother should have made. The Mother’s own evidence reflects an irresponsible abrogation of her role as a parent while seeking to empower a child to make an inappropriate decision.
Another example of this is at paragraph 171 where the Mother gives evidence about the events on Sunday 6 November 2016, when the Mother retained Z in her care, contrary to the orders. The Mother explains that before they left for changeover Z asked:
Do I have to go home?
The Mother explains that she said to her:
That’s your decision. I can’t say anything for you.
She then goes on to narrate that she said this to her “because it was my belief that I should not influence her choice or her decision”. Again, this is an example of the Mother abrogating her responsibility as a parent and inappropriately empowering Z to make a decision that was not hers to make. The Mother’s confused thinking was plainly evident when she narrates her belief that she was not influencing Z’s choice - she clearly was, by leaving it open to Z to form the view that it was her choice, when it really wasn’t.
An example of a completely inappropriate discussion with the children is found at paragraph 172 of the Mother’s affidavit. This bears reproduction in full:
My children also witnesses how that happened and here I refer to paragraph 32. The children throughout the five years have asked me, each of them together and separately, “Why can’t we live with you, mum?” and on each occasion I have said to them, “It is because I agreed to Court order that you live with your father.” They then asked, “Why did you do that?” and I told them, “I didn’t want it that way but at the same time I wanted what was best for them and thought they couldn’t leave school, I didn’t have the right lawyer to fight for them and I wasn’t strong enough to fight for them and also Y’s school was good for him with his learning difficulties.
The Mother’s own evidence is that this is a conversation she has had with the children “throughout the five years” that they have been in their father’s care. On the Mother’s own evidence, the children have been exposed to this sort of conversation. One wonders what would the children make of the inherent inconsistency in what the Mother was saying - that she did not want it that way, but it was nonetheless best for them . One must wonder how on earth it could assist the children to know that their mother “wasn’t strong enough to fight for them” and, in any event, how is that consistent with her obvious belief that it was not in Y’s interests to change school at the time? These were obviously quite appropriate ruminations for the Mother herself, but it was not for her daughter’s consumption.
What is apparent, once again, from the Mother’s own evidence is that the Father had himself acknowledged to her that Z had sometimes indicated that she wanted to live with her mother, but at other times seemed quite content. The Father seemed to acknowledge that Z was in some form of emotional turmoil about the issue. The Court observes at this juncture that it is hardly surprising given the extent to which the Mother had involved her in totally inappropriate conversations. But when the Father suggested that Z should talk to someone about the issue, and suggested a psychologist, the Mother’s response was, at paragraph 182:
Z doesn’t need to talk to a psychologist. She’s not mentally unstable.
The Father’s suggestion about Z seeing a psychologist was well-intended. He was clearly seeking to address what he even observed was some emotional turmoil in Z. The Mother’s response was somewhat odd. It is difficult to see how any reasonable inference could be drawn that he was suggesting that Z had a mental health issue. This incident again reflects the Mother’s somewhat unorthodox view of the situation.
A further example is at paragraph 184 when the Father said to her, on ascertaining that the Mother was going to retain Z that “You’ll be hearing about this. I’ll be talking to someone.” She says that:
I took this as a threat and fearful that he might do something to me or the children.
On the evidence before the Court, it is very difficult indeed to understand how the Mother might reasonably characterise what the Father said as a threat. In any event, she acknowledges that she then said “defiantly” the following words, “Bring it on”. Now all of this transpired in front of the children, and when the Father remonstrated to her about this fact, the Mother’s narrative is to say that she was scared. No doubt the parents will be cross-examined about this incident at the final hearing. One reasonably suspects, based on experience in this jurisdiction, that neither will come out of it in a good light. What concerns the Court is the impression of an exaggerated response by the Mother, out of proportion with the facts as she alleges them.
Perhaps the single greatest concern that this Court has about the Mother’s evidence, and the extent to which what she has said and done over many years may have advertently, or inadvertently, had an influence on the views purportedly expressed by Z, is found at paragraph 195 of her affidavit. This happened the day following the Mother’s unilateral retention of the children, i.e., Monday 7 November 2016. The Mother deposes that “legal advice was sought from both a solicitor and a barrister” and, as a result, a letter was forwarded to the Father. Paragraph 195 makes no reference at all to the fact that both Z and X were actually involved in this process of obtaining legal advice. This important fact only becomes apparent when reading the letter of 11 November 2016 sent to the Father by the Mother’s current lawyers. At paragraphs 4 and 5 of that letter, the Mother’s lawyers state:
4. In the company of counsel, both your daughters have been separately interviewed and have made clear that they do not wish to live with you and have not been happy that they have been made to live with you over five years.
5. Both state that they are afraid of you and at the same time state they do not wish to lose contact with you and would wish to be with you every second weekend so long as you do not shout at them or make them afraid of you.
The letter refers to what can only be described as an extraordinary event. The Mother’s solicitor and Counsel (at the time) separately interviewed X and Z. The Court does not know who else was present. The Court does not know who said what and in what manner. The Court does not know if a record of interview was created. The Court does not know anything about the qualifications and experience of both solicitor and Counsel who thought it appropriate to interview children who are caught in the middle of a high conflict dispute between their parents, in circumstances where many a judge would not be willing to meet with children in the course of proceedings.
What is striking is that the Mother expresses not the slightest regret, apology or even some insight into how inappropriate this was, and how it might have affected both X and Z. The Father’s solicitor’s response of 15 November 2016 is, in the circumstances, a restrained and measured one. Their description of the interview as being “extraordinary and indeed outrageous” is an understatement.
If nothing else, this event casts a giant shadow over all subsequent events when the children had an opportunity to express their views to a highly trained professional (the family consultant on 19 December 2016 and later the Independent Children’s Lawyer). For example, how can the Court be reassured that whatever was said and done on 7 November 2016 did not influence X and Z’s views as expressed at those later events? Moreover, this event merely confirms the concerns that the Court has already expressed so far in these reasons for judgment, based on the Mother’s evidence alone, that she has inappropriately involved the children in this matter and has failed to demonstrate in her own evidence that she has any insight into the potential impacts on her children, of what she is doing.
The letter that the solicitors sent on 11 November 2016 is interesting for other reasons. It raises the police welfare check that was performed at the request of the Father on 11 November 2016. According to the Mother’s evidence, she was not at home when the police visited, but the children were (it is unclear why they were not at school). The Father probably was not to know that the children would answer the door when the police came, but that does not detract from the lack of wisdom in his actions. Even on the papers, it is abundantly clear to the Court that the parents lack insight.
The letter also makes some serious allegation about the Father’s conduct towards Y. The allegation is made that the Father is bullying him, including physical violence. The allegation is made that the Father’s partner’s sons are also bullying him, including physical violence. An allegation is made that the children are left unsupervised (somewhat hypocritical in view of the Mother’s evidence at paragraph 219 of her own affidavit). But despite these very serious allegations, the proposed consent order which is enclosed in the letter proposes that Y lives with his father, and spends time with his mother.
Quite frankly, there is much more that the Court could say in these reasons for judgment about the Mother’s affidavit of 15 March 2017. There is no need to go on. There is ample material before the Court for it to safely conclude that whatever views Z may have expressed to the school counsellor, to the family consultant, and to the Independent Children’s Lawyer are unreliable in circumstances where the Mother’s own evidence suggests that she has been inappropriately involved in adult matters relating to the Court proceedings.
Under s.60CC(3)(a) Z’s views must be taken into account together with “any factors” that the Court thinks are relevant to the weight it should give to her views. The other factors referred to above lead the Court to conclude, even at an interim level, that no weight should be given to them at this stage. The Court is concerned that Z is under enormous pressure at this point and has assumed a responsibility for the decision which is the Court’s alone to make.
Z will need to be told by the Independent Children’s Lawyer that the Court has heard the views that she expressed both to the Independent Children’s Lawyer and to the Family Consultant, but has nonetheless concluded that there were other reasons why the decision was made.
Conclusion
Notwithstanding the strong views that Z appears to have expressed, the Court is more concerned about other considerations. Not enough is known about the nature of Z’s relationship with both of her parents, and their partners. Not enough is known about the impact on Y of Z living away from him, with their mother. The Court is concerned that the children may have been adversely psychologically affected by their embroilment in the parental separation and this litigation. The Court is concerned about issues of parental lack of insight. All of these matters are matters in respect of which proper expert evidence is needed.
When the matter came before the Court for interim hearing it signalled to the parties and their representatives that it no longer considered a family report to be the most appropriate form of expert evidence in this case. The Independent Children’s Lawyer was asked to investigate, and co-ordinate with both parents and their representatives, the engagement of the most appropriate form of expert.
There is obvious urgency in bringing this matter to an early conclusion. The Court will do everything it can to list this matter for hearing before the end of this year, so that there is some chance of a decision being made such that it may be implemented in 2018.
The Mother’s application in a case is dismissed. A number of the orders proposed by the Independent Children’s Lawyer remain appropriate. The Independent Children’s Lawyer’s proposal that X be empowered to decide for herself who she lives with, and what communication she has with each parent and her siblings, is appropriate in circumstances where she is 17 years old. The Independent Children’s Lawyer’s proposed order for her parents to refer her for a mental health plan is also appropriate.
The Court does not agree with the Independent Children’s Lawyer’s proposal in relation to Z. The Court does, however, agree with the Independent Children’s Lawyers proposal about Y, i.e., that he live with his father and spend time with his mother from 10 am until 7.30 pm on Saturdays each alternate week. The Court believes that this is a better alternative than the Father’s proposal which leaves it to himself to decide.
Y does need therapeutic assistance, and thus the orders that the Independent Children’s Lawyer proposes are appropriate in this regard. The Independent Children’s Lawyer proposed a number of other non-contentious issues. The Court, therefore, proposes to make orders 2 - 3, 8 - 11, and 15 - 22 of the Independent Children’s Lawyer’s minute of order.
It is the Court’s intention that, to the extent possible, the existing arrangement for Z to spend time with her mother in accordance with the existing orders continue. The Court had considered the possibility of extending her time with her mother but the high conflict between the parents, the highly strained communication between them, and the distance that separates the families’ homes makes this impracticable.
The Court will discuss with the parties the progress in relation to obtaining expert evidence, as well as hearing dates, when these reasons for judgment are published and orders made.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 9 May 2017
Key Legal Topics
Areas of Law
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Family Law
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Expert Evidence
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Procedural Fairness
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