BIGGS & TYSON
[2015] FCCA 2715
•8 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIGGS & TYSON | [2015] FCCA 2715 |
| Catchwords: FAMILY LAW – Children – parenting orders – best interests of the child – credibility issues – whether child should live with the mother instead of the father – where child has lived most of her life with the father – where recommendation in Family Report not followed – where insufficient evidence of any change of circumstances to justify the serious step of reversing a decision of the Court on 8 March 2011 that child should live with father – application of rule in Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA |
| Cases cited: Goodner & Jeppesen [2012] FamCA 463 Hall & Hall (1979) 5 Fam LR 609; FLC 90-713 R & R: Children’s Wishes [2000] FamCA 43; (2000) 25 Fam LR 712; FLC 93-000 Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 |
| Applicant: | MR BIGGS |
| Respondent: | MS TYSON |
| File Number: | BRC 4225 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 23 & 24 September 2015 |
| Date of Last Submission: | 24 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Priestley |
| Solicitors for the Applicant: | Coastal Law & Conveyancing Pty Limited |
| Counsel for the Respondent: | Mr Theobald |
| Solicitors for the Respondent: | Coffs Coast Family Law |
ORDERS
The Response filed by the mother on 12 May 2014 is dismissed.
The Orders of this Court made on 8 March 2011 providing that:
1. The child X born (omitted) 2007 live with the father.
2. The parties have equal shared parental responsibility for the child.
3. The child spend time with the mother as agreed between the parties and failing agreement for the whole of each New South Wales Gazetted school holiday period (save for Christmas) with the mother to meet the travel costs and make proper arrangements.
4. The child spend time with the mother on the Christmas school holidays as agreed between the parties and failing agreement the father to have the first two (2) weeks and the last two (2) weeks of the school holiday period and the mother to pay the balance with the mother to meet the travel costs and make proper arrangements.
are to remain in force.
If either party seeks an Order for Costs that party must file and serve an Application in a Case and an affidavit in support setting out the amount of costs sought and the basis upon which those costs are calculated within twenty-eight (28) days of the date of this Order and the other party must file and serve a Response to an Application in a Case and an affidavit in support within a further period of twenty-eight (28) days.
IT IS NOTED that publication of this judgment under the pseudonym Biggs & Tyson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
BRC 4225 of 2010
| MR BIGGS |
Applicant
And
| MS TYSON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of a little girl called X for final parenting orders. X was born on (omitted) 2007 and is now 8 years old. She currently resides with the father and has done so since May of 2010.
The mother wishes the child to live with her.
Orders Sought
These particular proceedings were commenced by the father filing an Application for a Recovery Order at the Local Court at Coffs Harbour on 9 May 2014, seeking the return to the child to his care. Curiously, he sought the following final orders:
1. That the child X born (omitted) 2007 live with the father.
2. That the father have sole parental responsibility for X.
3. That the mother spend time with X in (omitted) only as agreed between the parties.
The final orders sought were somewhat redundant as there were already Orders in force made by this Court on 8 March 2011 stating:
1. The child X born (omitted) 2007 live with the father.
2. The parties have equal shared parental responsibility for the child.
3. The child spend time with the mother as agreed between the parties and failing agreement for the whole of each New South Wales Gazetted school holiday period (save for Christmas) with the mother to meet the travel costs and make proper arrangements.
4. The child spend time with the mother on the Christmas school holidays as agreed between the parties and failing agreement the father to have the first two (2) weeks and the last two (2) weeks of the school holiday period and the mother to have the balance with the mother to meet the travel costs and make proper arrangements.
Indeed, it was those very orders that the father sought to enforce in his Application to the Local Court.
On 12 May 2014 the mother filed a Response in the Local Court in which she sought the following Orders:
1. That the child X born (omitted) 2007 live with the mother.
2. That the mother have sole parental responsibility for X.
3. That the father spend time with X in (omitted) only as agreed between the parties.
4. Both parties to undertake regular drug testing.
It is those orders that the mother still seeks.
The proceedings in the Local Court were transferred back to this Court and in due course the child was returned to the care of the father.
On 3 September 2014 the father filed an Amended Initiating Application in which he sought these Orders:
1. That the Mother’s Application be dismissed.
2. That the Orders made 8 March 2011 by Federal Magistrate Jarrett (as he then was) continue.
3. That the Mother pay the Father’s costs of this Amended Application.
It is those Orders that the father still seeks.
Background
The father’s counsel, Mr Priestley, has prepared a detailed chronology which appears in the father’s Outline of Case. It has been useful in setting out the relevant background facts.
The father was born on (omitted) 1975. He is shortly about to attain the age of 40 years.
The mother was born on (omitted) 1985. She is now 30 years old.
The parties met on the Internet in 2004. The mother, who lived in Western Australia, came to (omitted). They moved to Western Australia in August of that year but returned to (omitted) in (omitted) 2006.
The mother returned to Perth in (omitted) 2006 after she had been charged with a number of offences of Goods in Custody or Receiving Stolen Goods.
The father travelled to Perth in October of that year and the parties resumed their relationship.
The child X was born in Perth on (omitted) 2007.
The parties returned to (omitted) in (omitted) 2009 with the child.
In August 2009 the parties separated. The child lived with the father.
After an incident between the parties, an Apprehended Domestic Violence Order was issued against the father on behalf of the mother. On 2 September 2009 the father consented to the ADVO without admissions.
The mother left for Queensland.
The mother returned to (omitted) in (omitted) 2010 and the parties resumed their relationship.
On 8 April 2010 the mother removed the child from day care and left with her for Western Australia.
The father applied for a Recovery Order in the Coffs Harbour Local Court. On 20 April 2010 the Local Court declined to make a Recovery Order and transferred the proceedings to the Family Court at Lismore.
The father flew to Western Australia and collected the child. He returned with the child on (omitted) 2010.
The proceedings came before this Court on 3 August 2010. Federal Magistrate Purdon-Sully[1] ordered that a Family Consultant interview the parties the following day and provide a short oral report.
[1] Now Judge Purdon-Sully
The Family Consultant prepared a Family Consultant Memorandum to Court in which she noted that the mother “said that she agreed that X could live with her father on the basis that she spent all of school holidays with her and she would pay all air fares in lieu of Child Support.” The Family Consultant expressed concern about the mother’s level of distress and the fact that she did not have legal representation.
On 5 August 2010 her Honour made Orders until further Order:
1. That the child X born (omitted) 2007 live with the father.
2. That the parties have equal shared parental responsibility for the child.
3. That the child spend time with the mother as agreed between the parties and failing agreement for the whole of each New South Wales gazetted school holiday period (save for Christmas) with the mother to meet the travel costs and make proper arrangements.
4. That the child spend time with the Mother on the Christmas school holidays as agreed between the parties and failing agreement the father to have the first two (2) weeks and the last two (2) weeks of the school holiday period and the mother to have the balance with the mother to meet the travel costs and make proper arrangements.
5. That this matter be adjourned to a date to be fixed in 2011 in the Federal Magistrates Court of Australia at Coffs Harbour.
The matter returned to Court in Coffs Harbour on 8 March 2011. The mother did not attend court, nor was she represented. The father was represented by a solicitor. Jarrett FM made the Orders set out in paragraph [4] above.
On 19 April 2014 the child travelled to Western Australia to spend time with the mother in accordance with the Orders.
The mother sent a text message to the father saying that she and the child had missed their flight. The Police contacted the mother on 1 May, who told them that she would not be returning the child to the father.
The father applied to the Local Court at Coffs Harbour for a Recovery Order. On 20 May 2014 the Court made the following Orders:
Until Further Order:
1. Respondent Mother to do all things required to return the Child to the applicant no later than 4pm on 24/05/2014.
2. In the event of the Child not being returned to the Father pursuant to order 1 a warrant to issue in the usual manner for return of the Child to the Father.
Matter adjourned to 27/05/2014 to ascertain up to date position.
The child was returned to the care of the father on 24 May 2014.
On 27 May 2014 the proceedings were transferred from the Local Court to this Court.
On 29 September 2014 in this Court his Honour Judge Kemp ordered a Family Report to be prepared under the provisions of s.62G of the Family Law Act 1975 (Cth).
The Family Report was completed on 27 January 2015 and released to the parties on 2 February 2015.
On 9 February the matter was adjourned to 13 April 2015, on which date the Application was listed for final hearing on 23 and 24 September 2015.
Evidence
The father relied on his affidavit of 17 August 2015. He was cross-examined by Mr Theobald of Counsel, who appeared for the mother.
The mother relied on her affidavit of 18 August 2015. She was cross-examined by Mr Priestley of Counsel for the father.
The father deposed that when the parties separated in August 2009, they were living at his mother’s home. He stated:
In August 2009 Ms Tyson and I had a conversation. She said to me ‘Would you like to have X?’. I said ‘Yes, most definitely’. Ms Tyson moved out of my mother’s home into a shared house and X came to live with me. In September 2009 we went into Centrelink together and Ms Tyson signed papers stating that I would be having X 100% of the time and she would not be looking after her. I was granted a full sole parenting pension on 24 September 2009.[2]
[2] Affidavit of Mr Biggs 17.8.2015 at paragraph [14]
It was the father’s evidence that the mother did not see the child for about a month and then started to see the child on an erratic basis. In February 2010 the mother started spending more time with the child and then asked if she could move back in until she could save some money.
The mother stayed with him until 8 April 2010, when she left while he was at work. She collected the child from day care and took her away. The father spoke to her on the telephone the following day but she would not tell him where the child was. He ascertained from a friend of hers on 11 April that the mother and child were in Perth.
The father applied for a Recovery Order and on 3 August he received a telephone call from the mother in which she said:
“I can’t handle her (meaning X) come and get her”.[3]
[3] Ibid at [27]
The father flew to Perth to collect the child.
The father deposed that from the time that the parenting Orders were made by Jarrett FM on 8 March 2011, the mother continued to see the child in accordance with those Orders until April 2014. It was later that month that the mother sent the father a text message saying that she and the child had missed their flight to Sydney. On 1 May he sent the mother a text asking when the flight was booked and the mother eventually replied:
“U know what fuck u. She’s happy here. Leave me alone!!!”[4]
[4] Affidavit if Mr Biggs 17.8.2015 at [34] and Annexure “C”
The father then applied for a Recovery Order and the child was returned to him.
The father deposed that the child spent time with her mother for sixteen days during the July school holidays. Although he asked the mother to send the child back a couple of days before school recommenced the mother replied that the flights (presumably during the school holidays) were too expensive.
It is the father’s evidence that the child attends the (omitted) Public School, where she is repeating Year 2 because she was “struggling” the previous year. However, her most recent school report (forming Annexure “F” to his affidavit) shows that she has been doing well.
The father stated that the child speaks to her mother by telephone and Facetime, sometimes twice a week and on other weeks they do not hear from the mother at all.
The father also deposed that occasionally the child says to him “I miss my Mum. I wish she hadn’t moved away”.[5] He said he usually responds by reassuring her that both her parents love her and she can telephone her mother at any time.
[5] Ibid at [67]
It was put to the father in cross-examination that he had enrolled the child at (omitted) Public School without consulting the mother. It was his evidence that he had to act quickly to enrol her because when he had picked the child up from Pre School in December they had told him “Don’t bring her back next year, she’s ready for big school”. The child was four and a half years of age at the time.
Mr Theobald asked the father about arrangements for the child to spend time with the mother during the week that the proceedings were being heard in Court. The mother had asked him about seeing the child earlier in the week and he replied “Let’s wait to see what happens after court.”
The mother invited him and the child out to dinner but he declined. The father told Mr Theobald that he did not know that by doing that he was in breach of a Court Order. He said that he had no objection to the child having dinner with her mother that night.
The father conceded that he used to be a frequent user of marijuana but said that he stopped about three years ago, through the use of willpower. He said he had not used marijuana at all since 2012.
The father said that he did not know whether the mother was still taking painkilling medication or not.
It was put to the father in cross-examination that the child was overweight. He said that she weighed approximately 40 kilograms and conceded that she was “a little overweight”. The child’s doctor told him that she was slightly overweight. He said that the child has a regimented eating program and does not get much junk food.
The mother deposed in her affidavit affirmed on 18 August 2015 that she and the father moved to (omitted) when the child (referred to as “X) was about two years old but the relationship broke down again and the parties separated on a final basis. She complained that she had no support in (omitted) and that they could not manage financially.
The mother said that the father physically assaulted her and the Police took an Apprehended Violence Order against the father. The parties’ relationship broke down completely and the mother moved back to Western Australia.
The mother deposed that the father enrolled the child at the (omitted) Public School in 2012 without consulting her. When she tried to discuss the child’s schooling with the father he said words to the effect of:
“You need to stop interfering and mind your own fucking business”.[6]
[6] Affidavit of Ms Tyson 18.8.2015 at
It was a feature of the mother’s evidence that the child has expressed distress when the time has come to return her from her mother’s care to the care of the father, and that this has occurred since January 2012. The mother deposed:
When the time came for X to go back to Mr Biggs in January 2012 she cried on the plane trip. She said words to the following effect: “I don’t want to go to Daddy’s”.[7]
[7] Ibid at [7]
Again, the mother deposed that when the child was with her in April 2012:
When it came time for her to go to her father’s she was not happy and begged me not to send her. I listened to her but was not sure what to do and I did not know if she was just telling me stories to stay so I did return her. At the time she was very distressed, crying and asking me not to make her go.”[8]
[8] Ibid at [9]
The mother stated that at the beginning of 2014 she tried to talk to the father about the child living with her but no agreement was reached.
As for the incident in April 2014 when the mother did not return the child to the father at the end of school holidays, the mother deposed that the child had told her she was unable to call her on the telephone when staying with her father as he hid the phone and she could not find it. She further deposed that, when she decided not to return the child to the father, she initially did not tell him that she did not want to return the child to him because she was “too scared” of the father’s violent temper and the way he controlled her.[9]
[9] Ibid at [18]
The mother expressed concern about the child’s schooling, stating:
X does not attend school regularly as far as I know. We had an agreement that I was to receive copies of her school reports but I have not been getting them. I called the school in September 2013 to see how X was progressing. I spoke to the Principal and I was surprised to be told that X was spending quite a bit of time in detention and has missed many days of school. X has repeated Year 2 in 2015 in (omitted) due to her not achieving her milestones.[10]
[10] Affidavit of Ms Tyson 18.8.2015 at [10]
The mother set out her current living circumstances in paragraphs [20] and [25] of her affidavit:
20. I currently live in a home owned by my mother and my sister Ms J. My mother is 60 years old and my sister is 35 years old. My mother has worked for the past 25 years at the (omitted) Primary School. As my mother works school hours she is always available to care for X if my work hours extend past school hours. I have checked with the (omitted) Primary School and have been advised that X can enrol in that school.
…
25. Now that I live with my mother and sister I have their support and have had a good look at myself and my past behaviours. I am not the same person as I was.[11]
[11] Ibid at [20] & [25]
Neither the mother’s mother nor her sister deposed to affidavits.
The mother was cross-examined at some length by Mr Priestley, for the father.
The mother conceded that the incident in 2014 was the second time that she had unilaterally taken the child back to Western Australia. On the latter occasion, the mother said that she told the child:
‘You do not have to go back. I will take care of it”.
The mother enrolled the child on the first day of the school term at the (omitted) Primary School. The mother said that she did not regret what she did. It was put to her and she did not deny that she was prepared to breach Orders if it was what the child wanted.
Mr Priestley put to the mother that she had a number of convictions for dishonesty relating to stealing from shops. She conceded that she had been convicted of stealing offences on four occasions.
It was the mother’s evidence that she was not aware that the Orders made by the Court on 8 March 2011. She said she did not know that the court proceedings were taking place. She claimed that the Court failed to advise her, notwithstanding being shown a copy of a letter from the Coffs Harbour Local Court, it was her belief that what she had with the father was an agreement about the child, not a set of Court Orders. The mother denied having received a copy of the orders made by this court on 5 August 2010.
The mother conceded in cross-examination that she had lied on several occasions, including to the father. I found her oral evidence in cross-examination to be unconvincing, to say the least. I am not satisfied that she was telling the truth when shown a letter from (omitted) Primary School as to when the she enrolled the child at that school. I am not satisfied that she was telling the truth when cross-examined about her knowledge of the proceedings before the Local Court in 2010 and before this Court in 2010 and 2011. In particular, the mother denied having received a letter to her dated 21 December 2010 from the Chambers of Federal Magistrate Jarrett stating:
Orders were made in this matter by Federal Magistrate Purdon-Sully adjourning it to a date to be fixed in 2011.
As such the matter has now been listed to:
8 March 2011 at 11.30 am before His Honour Federal Magistrate Jarrett in Coffs Harbour
Your attendance in Court is required on this day. Upon arrival you should proceed to Coffs Harbour court located at (omitted). Should you wish to attend by telephone for this event please inform the Court as soon as practicable.
I note that the letter was addressed to the mother at the same address as she gives as her home address on her affidavit. In a number of respects I did not regard the mother as a witness of truth.
The Family Report
A Family Report was ordered by Judge Kemp on 29 September 2014. It was completed on 27 January 2015.
For the purposes of the Report the Family Consultant interviewed the father and the mother. She also conducted joint sessions with the child and:
a)the father; and
b)the mother.
The Family Consultant also had an individual session with the child and observed her as the interviews progressed.
The mother’s elder sister, Ms J, and her mother did not attend the Family Report interviews.
The Family Consultant noted that the mother and the father each had critical comments to make of the other:
Ms Tyson asserted that her overriding concern had been X’s[12] apparent inability ‘to be a kid in her father’s household.’ And she said ‘when I see her she is like a mini adult; she worries about money and was making paper planes to sell at a market’. Ms Tyson mentioned that she noticed true disorder in Mr Biggs’ home and she explained ‘when X and I Skype, I can see the mess and X has no top on or she has her father’s shirt on’.[13]
[12] sic
[13] Family Report page 7 at paragraph [18]
The father is reported in this way:
Mr Biggs, while acknowledging that X ‘loves her mother very much’ emphasised that ‘in Perth it is like a holiday; here I have rules’.[14]
[14] Ibid at [19]
The Family Consultant noted the following issues in dispute:
a)Where and with whom the child should live including related holiday arrangements;
b)Allusions made regarding Mr Biggs’ illicit drug use and Ms Tyson’s over the counter drug use.
The Family Consultant also issued the following issues during the assessment:
a)X’s views and perceptions;
b)The absence of functional communication between the parties;
c)The level of mistrust between the parties;
d)Parenting and co-parenting issues;
e)The parties’ differing views with respect to X’s best interests; and
f)The impact of the ongoing conflict on the child.[15]
[15] Family Report page 9 at [30]
The Family Consultant described the father in this way:
Mr Biggs (aged 39 years) impressed as good-natured and cooperative at interview; he gave the impression of being a caring father whose major concern was X’s health and well being. [16]
[16] Ibid at [30]
The Family Consultant described the mother in this way:
Ms Tyson (aged 29 years) impressed as a concerned, caring and loving mother for X; she contributed fully at interview and answered questions openly though moderately. Ms Tyson conveyed a sense of desperation with what she experienced as being marginalised as a parent; she said that she had not been involved and was often in the dark about X’s progress.[17]
[17] Ibid pages 11-12 at [41]
The Family Consultant described the child as “an engaging youngster with a ready charming smile; she indicated that school was okay because she had a few good friends and she nominated C[18] as her ‘best friend’.[19]
[18] sic
[19] Ibid page 14 at [51]
The Family Consultant said that the child told her that her father was “really nice” but her mother was nicer; “she is very, very nice”.[20] The child said that her mother was a better cook than her father and “Mum would let me have all the games I like”.[21]
[20] Family Report page 15 at [57]
[21] Ibid
The interaction between the father and the child was described as “playful and somewhat challenging…X talked openly with her father and it was assessed that she enjoys a close bond with him”.[22]
[22] Ibid at [58]
The interaction between the mother and the child was described as “comfortable, loving and supportive. X gave the impression of being part of a safe and sound mother-daughter relationship; she was assessed as sharing a close and loving bond with her mother.”[23]
[23] Ibid at [59]
The Family Consultant’s evaluation was that:
X would benefit from spending time with her mother I a relatively predictable, safe and secure home environment. Ms Tyson acknowledged that she had been unable to provide such environment for her daughter at the time of the parties’ separation. She impressed as confident, able and devoted to parenting X who in turn was keen to live with her mother in (omitted).[24]
[24] Ibid page 20 at [78]
The Family Consultant made recommended that the Court should consider a parenting arrangement whereby the child lives with her mother during the school semesters and spends most holiday times with her father[25]. In effect, what is recommended is a reverse of the present arrangements.
[25] Ibid at [79]-[83]
The Family Consultant was briefly cross-examined by both Counsel. She told Mr Priestley for the father that the child had been suffering from the effects of instability and uncertainty in her life and said that it would be good if the parents were to understand that the instability would not be good for her. The child has a close relationship with both parents.
The Family Consultant told Mr Theobald for the mother that the child needs to be protected from ongoing parental conflict. There is evidence that this year the child has been doing well at (omitted) Public School.
She further said that the child had expressed a strong wish to live with her mother. Although the father has cared for the child for the past four years, children identify very strongly with the same sex parent around the ages of seven, eight and nine. It may be the case that this child now identifies with her mother and this may increase as she gets older.
Submissions
Mr Theobald of Counsel submitted for the mother that the Family Report clearly establishes the child’s wishes as to where she wants to live. The child had nominated her mother as her favourite grownup. The child is balanced in her approach but clearly favours her mother.
Whilst the mother had not provided any evidence from her mother and sister or the household in which the child is going to live, it has been the case that the child has spent lengthy periods of time in the mother’s household and there has never been any criticism made of the maternal; grandmother or the mother’s sister.
It was further submitted that this case is about communication as well as the child’s wishes. The Family Consultant felt that the mother would communicate more with the father than the father would, or has done, with the mother.
Further, the mother continually said that she did not know that the Orders of 8 March 2011 had been made and referred to an agreement between the parents.
In summary, the child has made her wishes known and has spent a lot of time with each parent.
Mr Priestley of Counsel submitted for the father that the threshold test in Rice v Asplund[26] have not been met, as there have not been shown any overriding circumstances that would support a change of the existing Orders. The circumstances of the child’s life have not changed to such an extent to warrant a change. Change alone is not sufficient. Change is an ever present factor in life and needs to be of a serious nature to justify a review of final parenting orders (Goodner & Jeppesen[27]).
[26] (1978) 6 Fam LR 570; (1979) FLC 90-725
[27] [2012] FamCA 463
Mr Priestley pointed out that the child is doing well at school and communication between the parents is better.
The main reason given by the Family Consultant for her recommendation of a change in the parenting arrangements is the wishes expressed by the child (see R & R: Children’s Wishes[28]).
[28] [2000] FamCA 43; (2000) 25 Fam LR 712; FLC 93-000
When one considers the child’s reasons, they amount to the fact that her mother is the better cook and would also allow her to have all the games she wants. The child was aged seven and the Court should give her wishes little weight. There is nothing to show that the child appreciates that if she were to go to live with her mother she would see a lot less of her father.
Mr Priestley submitted that the father was a credible witness and the Court would prefer his evidence to that of the mother. There was an almost complete lack of corroboration of the mother’s evidence. If the mother had signed an agreement, as she said, it is unbelievable that she did not keep a copy of it.
It was also submitted that the Court should have regard to the mother’s evidence in cross-examination about what she would about obeying Court Orders if she thought something else was better. The Court would have no faith that the mother would comply with Court Orders.
The Court should also have regard to the mother’s inability to see the harm that could have been done to the child by retaining her in Western Australia in 2014.
Applications for Parenting Orders
When a Court is dealing with applications for parenting orders, it must consider various sections contained in Part VII of the Family Law Act 1975. The particular sections that should mainly be considered are:
a)Section 60B, setting out the objects of Part VII and the principles underlying those objects;
b)Section 60CA, providing that the Court must regard the best interests of the child as the paramount consideration;
c)Section 60CC, which shows how the Court determines what is in a child’s best interests;
d)Section 61DA, which contains the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which applies if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child and requires the Court to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent or, in the alternative, for the child to spend substantial and significant time with each parent.
What needs to be considered first, however, is whether the Court should make a parenting order that varies or discharges the existing Orders.
Conclusions
This is a case where the child, X, is now eight years old. She was born on (omitted) 2007. She has lived with the father for most of her life. The facts are that the child lived with both of her parents from her birth in (omitted) 2007 until the parents separated in August 2009, when the mother offered to the father that the child should live with him.
The father was then the child’s primary caregiver until April 2010, when the mother took the child with her to Western Australia. She then went back into the care of the father in July of that year. The mother consented to this situation, at a Child Dispute Conference on 4 August 2010 and then as a result of the Orders of 8 March 2011.
The child remained in the care of the father and spent time with the mother until 19 April, when she was to spend time with her mother, but the mother retained her in her care until 24 May 2014.
The child has lived with the father ever since. Whilst the Family Consultant said in her oral evidence that the child had lived with the father for the past four years, the fact is that she has lived with him for nearly six years (five years and ten months) since her parents separated in August 2009 and has lived with him since July 2010 except for spending time with her mother as agreed and the period from 19 April to 24 May 2014 when the mother retained the child in her care contrary to the existing Orders.
Bearing in mind that this child has spent most of her life in the care of the mother, the Court must consider the rule in Rice v Asplund[29]. This principle, which has been considered in many decisions since, was expressed in the decision of Evatt CJ, with whom Pawley SJ and Fogarty J agreed:
The principles which, in my view, should apply in such cases are 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 any application to reverse an earlier custody order. To do so would be to invite endless litigation for…change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant 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…These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing.[30]
[29] supra
[30] (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905
In this case, the earlier Orders were made in circumstances where the mother did not attend court but had previously informed a Family Consultant at a Child Dispute Conference of her consent to the child remaining with the father. The mother denies that she had any knowledge of the Court proceedings and states that there was some sort of agreement, a copy of which she was unable to produce. I do not accept the mother’s evidence on this point.
This case is unusual in that the Rice v Asplund[31] issue was not argued as a preliminary point but after a defended hearing where the evidence of the parties and of the Family Consultant who prepared the Family Report has all been tested by cross-examination.
[31] (1978) 6 Fam LR 570; (1979) FLC 90-725
The evidence in support of the mother’s case comes from the mother herself and from the Family Report.
The mother’s evidence is uncorroborated. I found her an unsatisfactory witness and my contemporaneous notes during her cross-examination are that I did not believe that she was telling the truth. She admitted in cross-examination that she had told lies. The highest that her evidence can go is that when the child is spending time with her she says that she wants to stay living with her.
The mother relies on the Family Report, where the Family Consultant noted the child’s preference for living with her mother. Clearly, the Court must take that evidence into account (see Family Law Act, s.60CC(3)(a)), but I am not satisfied that those views of a child then aged seven years and seven months should be given much weight. The child’s reasons appeared to be that her mother was a better cook and would allow her to have all the games she wanted.
There is evidence from the Family Consultant that each parent has a loving relationship with the child and each parent recognises the importance of the child’s relationship with the other.
There is no evidence that the child is not doing well in the care of her father. She appears to be doing well at school this year, although she struggled last year and had to repeat. Her school report produced in evidence is very positive.
There is no credible evidence that the father has continued in his use of marijuana or that the mother has continued in her abuse of painkilling drugs.
The Family Report contains a recommendation that the parenting situation should be reversed, and the child should go from the care of the father, with whom she has lived since July 2010, to the care of the mother. This recommendation appears to be based on the expressed wishes of the child and the Family Consultant’s favourable view of the mother.
I do not propose to follow the recommendations in the Family Report. The overall evidence does not support the Family Consultant’s recommendation, in my view. The decision of the Full Court of the Family Court in Hall & Hall[32] provides, with respect, a useful guide for a trial court to follow:
[32] (1979) 5 Fam LR 609; FLC 90-713
(a) There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor[33] is usurping the role of the court or that the judge is abdicating his responsibilities…
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions.
(c) While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weight the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong…
[33] Now called a family consultant
(e) Sometimes the family report will necessarily be neutral.
(f) Whether the report contains appositive recommendation, or whether it be neutral; whether the report is accepted by the judge or whether it is not; the report will still serve the court well and assist the court’s investigation.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors.
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied.[34]
[34] (1979) 5 Fam LR 609 at 615-616; FLC 90-713 at 78,819 -78,820 per Evatt CJ, Asche SJ and Hogan J
In this case, I have had the opportunity of hearing the evidence of the parties under cross-examination and observing their demeanour. I have formed a less favourable view of the mother than the Family Consultant apparently has. I have considered the history and note that the mother has acted unilaterally in removing the child from the care of the father in defiance of Court Orders, based on her own views, requiring the father to apply to a Court for a Recovery Order. It is the father who has had recourse to the proper process of the law rather than the mother, who has taken the law into her own hands as and when she thought fit. She told the Court that she did not regret her actions. I am not persuaded that the mother can be relied on to comply with Court Orders in the future.
The Family Consultant’s recommendation is also based on the expressed views of the child. I have no doubt that these views are reported accurately, but, with respect, they do not appear to be of such sufficient weight for the Court to find that those views constitute a change of circumstances sufficient to justify reversing a previous parenting Order.
The Family Report states at [78] that the child would benefit from spending “in a relatively predictable, safe and secure home environment”. On the evidence before the Court, such an environment has been provided by the father.
There is insufficient evidence of a change of circumstances of such weight as to justify reversing the Orders made by this Court on 8 March 2011. It follows that the father’s Application will be successful and the application of the mother, contained in her Response, must fail.
I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 8 October 2015
0
2
2