Boslem and Rankin and Anor

[2007] FamCA 1251

FAMILY COURT OF AUSTRALIA

BOSLEM & RANKIN AND ANOR   [2007] FamCA 1251

FAMILY LAW – CHILDREN - With whom a child spends time - Interim parental responsibility – School to be attended

Family Law Act 1975 (Cth)

APPLICANT: Ms Boslem

RESPONDENT:

SECOND RESPONDENT:

Mr Rankin

Ms Harker

INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

FILE NUMBER: SYC 2503 of 2007

DATE DELIVERED: 18 October 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 4 July & 2 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Robyn Sexton & Associates

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: McDonell Milne Toltz, Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Johnston

SOLICITOR FOR THE SECOND RESPONDENT: McDonell Milne Toltz, Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Orders

1. That all previous parenting orders shall be suspended pending further order.

2. That pending further order the child S born on … June 1995 shall live with her mother and the mother shall have sole parental responsibility for the child.

3. That pending further order the father communicate by telephone or SMS with the child no more than once a day between the hours of 7:00 pm and 8:00 pm.

4. That pending further order the child spend time with her father and her paternal aunt Ms Harker as agreed between the parties.

5. That pending further order the mother, the father and Ms Harker are restrained from discussing these proceedings or the father’s criminal proceedings in the presence or hearing of the child.

6. That pending further order the mother is restrained from drinking alcohol at a level which would cause her blood alcohol level to exceed the limit for lawfully driving a motor vehicle (0.05) and from using any non-prescribed drug.

7. That pending further order the mother is restrained from changing the child’s residence from the Newcastle area and from changing the child’s school enrolment without the permission of the Independent Child Lawyer.

8. That the mother forthwith make an appointment with her general medical practitioner (Dr G) and inform him about the details of her history of bi-polar disorder and alcoholism.

9. That the mother forthwith provide written authorisation to the Independent Child Lawyer to discuss her medical history and condition with her said medical practitioner and that the Independent Child Lawyer provide a sealed copy of these orders to the medical practitioner.

10. That pending further order the mother shall comply with all directions and prescriptions of her medical practitioner.

11. That all parties have leave to re-list these proceedings on 72 hours notice.

12. That the substantive proceedings are adjourned for directions by me at 10:00 am on 4 December 2007 although this date may be varied by arrangement with my Associate.

IT IS NOTED that publication of this judgment under the pseudonym Boslem & Rankin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2503 of 2007

MS BOSLEM  

Applicant

And

MR RANKIN  

Respondent

And

MS HARKER

Second Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. These are interim proceedings concerning the parenting arrangements for the child S born in June 1995. The child’s parents are Mr Rankin, to whom for convenience I shall refer as “the father”, and Mr Boslem, to whom for convenience I shall refer as “the mother”.  There is a second respondent in the proceedings namely Ms Harker.  Ms Harker is the child’s paternal aunt and for convenience I shall refer to her as “the aunt”.

2. The child’s mother seeks an order to the effect that pending further order the child live with her.  The mother also seeks an order to the effect that the child communicate with her father by telephone and / or letter and spend such face to face time with her father as the child dispute consultant might recommend. 

3. The mother’s application is opposed by the child’s father who seeks an order that the mother’s application be dismissed.  The father also seeks an order to the effect that pending the hearing in the substantive proceedings the child’s aunt have parental responsibility for the child on the basis that the child be re-enrolled as a boarder at R School pending further order.  The father also seeks an order to the effect that the child otherwise spend time with her mother, her father and her aunt at times when she is not required to attend R School.  The father also seeks an order that he pay all school fees due and payable in respect of the child’s attendance at R School. 

4. Because of the complexity of this case an Independent Child Lawyer was appointed for the child.  Mr Sperling solicitor appears in that capacity.  The Independent Child Lawyer seeks an order to the effect that pending further order the child attend R School as a boarder until Year 12.  The Independent Child Lawyer also seeks an order to the effect that the child’s mother and father share parental responsibility for the child’s education and that otherwise the mother exercise parental responsibility for the child. In particular the Independent Child Lawyer seeks an order that the child spend time with her mother each alternate weekend, that she spend time with her aunt for a period of four consecutive days and four consecutive nights during each school holiday period, or as otherwise agreed by the parties.  The Independent Child Lawyer also seeks an order to the effect that the child spend the balance of the school holidays with her mother.  The Independent Child Lawyer also seeks orders for payment by the father of the school fees and certain other orders by way of restraints and I shall deal with these below.

Background

1. The mother and father married in November 1994 and they separated in 1997.  The mother has two other children C born in October 1999 and J born in February 2001.

2. In June 1998 final orders were made by this Court by consent.  The effect of these orders was for the child to spend equal time with each parent.  Unfortunately, after a time the mother suffered serious problems in respect of her mental health.  In April 1999 final orders were made varying the earlier orders in that the child was to live primarily with her father and spend supervised time with her mother.

3. Subsequently, the father moved with the child to the B district where he operated a farming enterprise.  From this time the child spent time with her mother primarily during school holidays.  Such time was spent with the mother without the supervision which was required by the orders.  In late 2006 or early 2007, the mother moved to Newcastle.

4. In January 2007, in anticipation of moving from his farm to V, the father enrolled the child as a boarder at the R School.  The child visited each of her parents on alternate weekends.  The child also visited her paternal aunt and her family in the school holidays.  The aunt is married with three children, these being 13 year old male triplets.  The child subsequently became a day pupil at the school when the father established a residence at V.

5. Early this year the father was convicted of a sexual offence involving a child.  The child was a witness at the trial.  The father has been incarcerated on a sentence which will require him to serve a minimum prison term of four years.  I understand that an appeal is pending. 

6. Upon his incarceration, the father arranged for the child to be cared for initially by his friends Ms K and Mr P.  But after a short period the child came into her mother’s care in Newcastle this being in May 2007.  Since 21 May 2007 the child has been attending M Public School in Newcastle. 

Issue

1. The issue in these proceedings is whether it is in the child’s best interests to continue living with her mother in Newcastle and attending her present school or to become re-enrolled at R School. 

The Applicable Law

1. The relevant law is contained in Part VII of the Family Law Act 1975 (Cth). Section 60B sets out the objects of this Part and the principles underlying it. These include that the objects 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 section goes on to provide that the underlying principles 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.

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

4. Section 60CC makes specific provision for how the Court is to go about the exercise of determining what is in the child’s best interests and numerous legislative provisions are involved in this exercise. 

5. Sub-section 60CC(2) provides that the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. 

6. The additional considerations are provided by s 60CC(3).  I propose to now deal with those which are relevant in this case. 

The Child’s views

1. The first of such considerations is any views expressed by the child and any factors such as the child’s maturity or level of understanding the Court thinks are relevant to the weight it should give to the child’s views.

2. Given the age of the child, that is 12 years, it was considered appropriate for the child to be given an opportunity to express her views.  This occurred through the process of arranging for a family consultant to interview the child and then report to the Court as a consequence of such interview. 

3. Dr F, family consultant, prepared a written report about this matter in July 2007.  In respect of the child’s views concerning her attending R School Dr F reported as follows:

   “[The child] indicated that she is happy that she is currently attending school but also feels that she would be happier if she went to [R] School, primarily because she would no longer feel “in the middle” (of her parents’ dispute).  … [The child] reported many positive things about her prior attendance at [R] School. She liked being involved in sporting and extracurricular activities and she made several friends, one of whom she has kept in contact with, albeit sporadically.  [The child] reported positive things about her attendance at [M] Public School.  She indicated that she has made friends, has continued her involvement with swimming and is participating in netball as well.  She reported that she would like to continue to learn the violin, which she did at [R] and prior to attending [R], but felt that she would be able to do this if she also had lessons where she is currently living.”

4. Dr F then set out the weight to be attached to the child’s views having regard to her age, maturity and any other issue she considered relevant to the weight as follows:

   “[The child] presents as well spoken and intelligent.  She is aware of a lot of the adult issues but unable to make sense of the information she is being exposed to.  Her focus appears to be on pleasing others as a way of minimising her distress and she is therefore less able to focus on more developmentally normal issues.  Given her age, [the child] is unable to anticipate the longer term implications of this decision about her school.  She expressed some confusion about feeling that she “has to choose” what happens.  …

   [The child] is under the impression that if her father’s criminal appeal is successful, that he will be released and she will live with him, pending a resolution in the criminal Courts.  This is another reason she feels that she should attend [R] School.  She feels that he would live close to [R] School and she could then attend as a day student.  However, the nature of [the child]’s relationship with her father has not been fully assessed. 

   [The child] reported feeling repeatedly “disappointed” about “being told” that her father’s criminal appeal was going to happen and has not.  It is clear that the knowledge of, and uncertainty about this, is creating significant anxiety for her.  …”.

5. Dr F went on to report on her conclusions about how the child’s views have been formed and whether they are properly held as follows:

   “There are indications that [the child] is very aware of her father’s views about where she should attend school and why.  [The child] indicated that she speaks with her father “more than once a day” and that they discuss “everything”.  She is also aware of her mother’s view, but this does not appear to be causing [the child] any confusion. It appears that although [the child] expresses a preference for attending [R] School, this preference seems to have arisen in part out of a need to diminish the feeling of being torn between her parents.”

6. Dr F was cross-examined vigorously by all of the legal representatives. 

7. What emerged from the cross-examination was that the child felt very much in the middle of her parent’s dispute because she was only too aware that each of her parents wanted something quite different.  Firstly, her father made it very clear to her that he expected that she would continue living as a boarder at R School.  On the other hand the child knew that her mother wanted her to live in Newcastle with her and to go to her present school there.  It also emerged that the father had been in the habit of telephoning the child numerous times every day and reinforcing this message.  The clear impression that Dr F had was that the child was feeling distressed about being in the middle of her parents wishes in this regard and that the father’s many telephone calls to the child were adding to her distress. 

8. It also emerged from the cross-examination that Dr F held the view that the child’s expressed wish to return to be a boarder at R School was strongly influenced by a need on her part to please her father.  Dr F said that the child had said that her father was really angry that she was not at R, that she wanted him to be happy and then everything would be OK.  The child also said that her parents were the bread and that she was the meat in the sandwich.  Dr F also said that if the father desisted in placing pressure on the child that the child would be happier as a result. 

9. It was also suggested to Dr F by learned counsel for the father and the second respondent that Dr F’s opinion was coloured by an adverse view that she took about the father because he had been convicted of a sexual offence involving a minor. While Dr F acknowledged that she had concerns about the father having a relationship with the child in view of the subject matter of his conviction, she strongly rejected this matter as having coloured her view.  I accept Dr F’s evidence in this regard.

10. What I make of this material is that although the child has expressed a wish to return to attending R School this wish seems to be far from unequivocal. Clearly, it is heavily influenced by her perception of what her father wants of her. 

Relationships

1. The next relevant consideration under s 60CC(3) is the nature of the relationship of the child with each of her parents and her paternal aunt.  There is no question that the child has a close relationship with her father.  He has been her primary parent now for many years.  It is clear that she is heavily influenced by him as indicated in the report by Dr F.  As I have indicated, the father has been in the habit of telephoning the child many times each day.  As also indicated above, the Independent Child Lawyer seeks an order to limit the father’s telephone communication with the child to one phone call per day.  This is something which, in my view, would be of benefit to the child and I propose to put an order in place to this effect.

2. The relationship between the father and the child has not been assessed by an appropriate expert.  As I have said, clearly Dr F has serious concerns about the father’s relationship with the child on the basis of the very serious offence of which he has been convicted.  However, one would anticipate that this is a matter which would be addressed in the substantive proceedings.  It seems to me at this interim stage, that on the basis that the father’s telephone calls would be limited and on the basis that the father is in prison, this is not a matter which is going to loom large in the immediate proceedings. 

3. So far as the child’s relationship with her paternal aunt is concerned the child’s aunt says that she has a close relationship with the child.  This is unclear to me although it would be surprising if this was not the case on the basis that the child is very attached to her father.  It appears that the father and paternal aunt have quite a close relationship which one would expect would flow on to the child. 

4. The relationship between the child and her mother has not been assessed in these proceedings because the report was limited to the wishes of the child concerning attendance at R School.  The child is aware of the fact that her mother has suffered from bi-polar disorder and from problems with alcohol.  The child’s relationship with her mother appears to be complicated by virtue of the child’s closeness to her father.  Obviously, the father has been critical of the mother over many years.  Yet there do not appear to have been significant problems with the child settling into her mother’s care.  The mother has been able to arrange for her to commence at a new school as I have said apparently without difficulty.  Dr F indicated, as I have said, that the child is happy at her current school and reported positive things about her attendance there including having made friends, continuing her enrolment with swimming and playing netball. This is not the stuff of a child in difficulty at school.  In addition the mother has been able to gain the child’s cooperation in the counselling process.  There is no evidence that the child has been oppositional or distressed.  In the light of these matters and in the absence of any professional assessment of their relationship, it is more probable than not that the child and her mother have a good relationship.

Capacity and attitude

1. The next relevant matter pursuant to s 60CC(3) goes to the capacity of each of the child’s parents and the paternal aunt to provide for the needs of the child including emotional and intellectual needs.  In my view, this matter should be considered along with the consideration about the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents which is included in s 60CC(3)(i). 

1. In my view these matters really go to the heart of the issue that must be determined in these proceedings.  There is no question that the mother has demonstrated a number of vulnerabilities over the years.  These are primarily her history of suffering from bi-polar disorder and from some level of alcohol abuse. There are also allegations that she has been involved in domestic violence.  Were it not for these factors, in my view, there would be no question of consideration being given to re-enrolling the child in R School. 

2. The mother was diagnosed as suffering from bi-polar disorder and alcohol dependency in 1996. She had been admitted to N Clinic.  She was prescribed medication.

3. In April 1997 she was again admitted to N Clinic.  She says that this was after a fight with the child’s father.  The mother admitted herself to N Clinic briefly in 1998 during litigation with the father and she spent one evening in Hospital in February 1999.  The mother said that this latter hospitalisation was upon learning that she was pregnant with the child C.  She said that she had stopped taking her medication because of her pregnancy. 

4. The mother said that she was last hospitalised in 2002.  There is no objective material which challenges this. 

5. In 2003 the mother was convicted of driving with a quantity of alcohol in her blood above the legal limit.  This resulted in the suspension of her driver’s license for a period.  The mother said by way of explanation, that she used alcohol to avoid taking her medication.  She says that after this incident she consulted her doctor and the doctor prescribed a different regime of medication.

6. Dr L has been the mother’s general practitioner in Sydney for many years.  It is clear from Dr L’s notes that in 2005 the mother reported that she had been suffering from mania characterised by nightmares and anxiety and that she had some self harm ideation.  Dr L made adjustments to the mother’s medication.

7. As indicated above, the child’s father opposes an order that the child continue to live primarily with her mother.  In his latest material he is critical of the mother.  He says that the child informed him in May 2007 that she was frightened in the mother’s home and wanted to be removed therefrom.  He also referred to the mother’s conviction for drink driving in 2003.  He said that he would be gravely concerned for the child’s well being if she was to remain living with her mother.  A friend of the father, Mr MC, said in his affidavit that in January 2007 when he was in Sydney for the father’s criminal trial he saw the mother in a state of complete intoxication and that she was using marijuana. 

8. In placing this material before the Court the father seems to be taking quite a different position from that which he took in late May 2006 when he swore an affidavit in support of the mother’s case in the parenting proceedings against Mr A who is the father of the children C and J.  In that affidavit the father said that the children have a warm relationship with their mother and that their mother is extremely patient and gentle with them.  He said that since 2003 he had not observed any symptoms of the mother’s illness.  He said that he had not observed any of the moodiness or inappropriate behaviour present at the time of their separation.  He said that he had observed the mother consume moderate amounts of alcohol but had not been in her presence when she was intoxicated.  Significantly, he said that he had no concerns about leaving the child S in her care. 

9. The father now says in these proceedings that in swearing that affidavit he had relied heavily upon statements made to him by the mother and her assurances that she was not drinking and that she was taking her medication.  He says that he had subsequently ascertained that the mother had misrepresented the situation to him and alleges that subsequent to swearing the affidavit he was advised that the mother had been arrested and charged with drinking offences. 

10. There were references in the Family Report in the related proceedings concerning the children C and J in which Mr A made various serious allegations against the mother.  These included that the mother was imprisoned in September 2006 for violence involving Mr BD her former partner at a time when she was responsible for the care of the children, that the mother was involved in further violence in April 2007 and that the mother was driving an unregistered motor vehicle in March 2007.

11. I am not aware of any material which supports these most recent criticisms by the father, Mr MC and Mr A.  In relation to the allegation that the child had said that she was frightened in her mother’s home, there was nothing that emerged during the interview with Dr F which would lend weight to that assertion.  It is noted that during the course of Dr F’s interview with the child, the child made a comment about her mother’s drinking and Dr F asked her how much the mother was drinking.  Dr F said that the child replied a bottle of wine maybe a couple of times a week and that she was a quiet drinker. 

Discussion

1. On the one hand to require the child to become re-enrolled at R School would appear to have some advantages.

2. Firstly, the child attended the school for a few months from the commencement of this school year.  She appears to have been happy there, she had made some friends and appears to have been doing well.  She was class sports captain, she was involved in swimming, for which she appears to have talent, she was learning violin and was to have had an opportunity to participate in a theatrical production.

3. As indicated above, the child expressed a wish to return to the school although her reasons for doing so are equivocal in my view.  One aspect of this, as I have said, is that the child gave Dr F the impression that she would regard a return to R School as removing her from being in the middle of her parents dispute about where she should live.  If this was the case, and I am not sure that it would be, this would seem to be a positive in terms of the child’s interests.

4. The child is very close to her father and has made it clear that she feels very sorry for him in his predicament and wants to help him.  So, for her to comply with his wishes and live at R School is a way for her to do this.  But a part of this appears to be an idea that she has that her father’s appeal will be successful, that it will not be too long before he is living back in the vicinity of R School and that she will be able to resume living with him and attend R School as a day pupil.  The prospect of such occurring seems to be unlikely.

5. Another point in favour of the child returning to R School is that it would reduce opportunity for the mother to behave in a manner adverse to the child’s interest. Obviously the Court must be careful about the level of parental responsibility to place on the mother as a consequence of her history of difficulties with bi-polar disorder and abuse of alcohol. 

6. On the other hand, the child appears to have settled into her school at M.  She has made some friends there.  She appears to have a good relationship with her mother notwithstanding criticism of her mother by her father and probably others sympathetic with his case.  As indicated above, the father said that the child had complained to him about things in the mother’s household.  Yet Dr F did not report any serious matter adverse to the child’s interests. The only negative matter which emerged during the interview process was the reference to the mother’s consumption of alcohol referred to above.  In addition, there does not appear to be any signal from the child’s school that all is not well for the child either at home or at school.  Perhaps it is early yet in this regard.

7. In addition, one of the negatives previously in the mother’s household, Mr BD, is no longer a part thereof.  This has removed the major possibility of the child being exposed to domestic violence.

8. There is also the fact that over the many years during which the mother has suffered from bi-polar disorder and alcoholism the father has been prepared to trust the mother with the care of the child without supervision.  He is still prepared to do this although only for the relatively short periods involved at weekends and holidays.  The child has a close relationship with her sisters and the three girls are able to spend time each other weekend when the children C and J visit under the arrangements in place by this Court.  It is clear from the Family Report in the parenting proceedings involving the children C and J that they very much enjoy their time with the child S. It would be most surprising if this was not reciprocated.

9. Inherent in the submission by the Independent Child Lawyer is the assumption that the child would be able to continue her relationship with the only parent readily available to her on alternate weekends and the major part of the school holidays. With respect, this sounds fine in theory.  But I have serious reservations about the capacity of the child’s mother and aunt to be able to put in place and maintain the logistics and transport arrangements necessary to enable this to occur.  In my view, there would be a risk for the child under such an arrangement that she would end up with little real support from either of her parents and an inadequate opportunity to develop a relationship with her sisters.

10. In addition, as I have said, the child’s expressed wish to return to R School is equivocal, being heavily influenced by her father.  At this point, therefore, it is difficult to be confident that if the Court was to order the child to return to R School in the different circumstances that would now prevail, namely that her father would not be readily available to her as he had been when she attended at the school previously, that the child would readily settle down into the school and maintain a sense of wellbeing and happiness in her attendance at the school.

Conclusion

1. In the end result, in my view, there are risks with both options proposed for the child.  But upon a weighing of the risks I am not persuaded at this interim stage of the litigation, in the absence of appropriate opportunity for testing the evidence and availability of an appropriate report by a family consultant or other expert, that it would be in the child’s interest to remove her from her mother’s care and require her to live primarily under the care of the principal and teachers at R School.  This is not to lose sight of the potential for real difficulty for the child in her mother’s care if the mother was to lapse into the type of behaviours which have been of concern to the father and also to this Court.  However, I propose to put in place some measures in an endeavour to assist the mother and child in this regard.

2. These measures will include a requirement for the mother to forthwith consult her general medical practitioner Dr G, and inform him of the details of her history of suffering from bi-polar disorder and alcoholism and abide by his directions for management of these conditions including taking prescribed medication.  I shall also require the mother to authorise the Independent Child Lawyer to discuss all matters relevant to the mother’s medical condition with Dr G.

3. I also propose to make orders for certain restraints in relation to the mother.

4. This leaves the question of time to be spent by the child with her father and paternal aunt.

5. One would expect that because of the child’s close relationship with her father she would be missing direct contact with him very much.  As indicated above, she is keeping in close contact with him by telephone.  As Dr F observed, there has been no professional assessment of the child’s relationship with her father.  As also indicated above, Dr F expressed concern about the implications which the nature of the offence of which the father has been convicted might have for the child’s relationship with her father. Clearly, these matters require further consideration.

6. I propose to leave the matter of any face to face time between the child and her father and / or her paternal aunt to be resolved between all parties.  In the event that this cannot be achieved, all parties shall have liberty to re-list this matter before me for determination by arrangement with my Associate.

7. In relation to the future conduct of the substantive proceedings I adjourn the proceedings for mention before me at 10:00 am on 4 December 2007 which date may be varied by arrangement with my Associate

I certify that the preceding sixty (60) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:   18 October 2007