C and F
[2002] FMCAfam 360
•5 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & F | [2002] FMCAfam 360 |
| FAMILY LAW – Children – residence – best interests – wishes of child – family violence – separation of siblings. Family Law Act 1975, s.68F(2) B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 |
| Applicant: | L F C |
| Respondent: | R A F |
| File No: | HBM138 of 2002 |
| Delivered on: | 5 November 2002 |
| Delivered at: | Devonport |
| Hearing Dates: | 26 & 27 September 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | McVeity & Associates |
| Counsel for the Respondent: | Mr T McGuire |
| Solicitors for the Respondent: | Temple-Smith Barclay |
ORDERS
That Orders number 3, 4 and 5 of the Orders of the Family Court of Australia dated the 27th September, 2000 bearing number HB525 of 1999 be and are hereby discharged.
That the child T M A F born 4th August, 1988 (“T”) reside with L F C (“the mother”).
That the child A M F born 29th December, 1989 (“A”) reside with R A F (“the father”).
That the mother have the sole responsibility for the day to day care, welfare and development of T.
That the father have the sole responsibility for the day to day care, welfare and development of A.
That the mother have contact with A as follows:
(a)during school terms each second weekend from 5.00 p.m. on Friday until 5.00 p.m. on Sunday (extended to 5.00 p.m. on Monday if the Monday is a public holiday);
(b)for half of each of the Easter, May-June, August-September and the long summer school vacations;
(c)for one half of Christmas Day; and
(d)for such further contact as may be agreed between the parties.
That the father have contact with T as follows:
(a)during school terms each second weekend from 5.00 p.m. on Friday until 5.00 p.m. on Sunday (extended to 5.00 p.m. on Monday if the Monday is a public holiday);
(b)for half of each of the Easter, May-June, August-September and the long summer school vacations;
(c)for one half of Christmas Day; and
(d)for such further contact as may be agreed between the parties.
That the contact pursuant to Orders No. 6 and 7 hereof be exercised on the basis that T and A are together during contact periods.
That the parties share equally in the travel necessary to give effect to these Orders.
That the parties have liberty to apply in relation to the implementation of Orders No. 6 to 9 inclusive hereof.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM138 of 2002
| L F C |
Applicant
And
| R A F |
Respondent
REASONS FOR JUDGMENT
Background and applications
In this matter the applicant is L F C (“the mother”) and the respondent is R A F (“the father”). They lived together for a number of years commencing in 1982. Although they have different recollections of when they separated, that is not material to these reasons.
There are three children of their relationship, C R F born 7th August, 1986 (“C”), T M A F born 4th August, 1988 (“T”) and A M F born 29th December, 1989 (“A”).
By Orders of the Family Court of Australia of 27th September, 2000 all three children reside with the father and the mother has regular contact.
It is agreed between the parties that the eldest child, C, is able to make up her own mind about where she will live. The mother is applying for orders that T and A reside with her and that the father have contact with them on a regular basis. The father opposes that application.
The applicant relied upon her affidavit sworn 21st March, 2002 and an affidavit sworn by her husband T I C (the applicant’s husband) sworn 26th September, 2002. Both were cross examined.
The respondent relied upon his affidavit sworn 30th May, 2002 and an affidavit of his de facto partner, K E E (“the respondent’s partner”) sworn 25th September, 2002. The respondent and his partner were both cross examined.
The parties have litigated in the Family Court of Australia and in this Court over a number of years and three family reports have been prepared by Mr C, a Child and Family Counsellor attached to the Family Court of Australia (“the counsellor”).
Evidence
It is clear from the evidence that T is a troubled fourteen year old. He has been suspended from school on a number of occasions and he currently is suspended indefinitely and is receiving only minimal schooling with a tutor for a few hours per week. Although there were differences in evidence about how many hours per week he is being tutored, it seems to me that it is minimal and he must be slipping further and further behind his peers while that situation continues.
The mother’s evidence is that the reason for T’s bad behaviour at school is that he is not happy at home and that he wishes to live with her and her husband.
It is the father’s evidence that T is happy in his home life and that he enjoys the company of his extended family, particularly his eighteen year old step brother.
The mother lives in a three bedroom brick home in W in Tasmania, which is privately rented. T has his own bedroom and A and C share a bedroom when on contact visits.
The mother does seasonal work in the vegetable industry and her work hours vary according to demand. It is her position that in the event that she is not available, her husband would be available to support T and A. He is a Disability Support Pensioner.
The father has been in a de facto relationship with his partner for more than ten years. They have one child who is aged ten years. His partner has three children from a previous relationship and the youngest lives with them. The older two are adults and have left home.
The father and his partner live in a three bedroom house at R in Tasmania and it is clear that the house (and caravan on the property) houses five children between the ages of sixteen years and ten years, in addition to the father and his partner.
The father works, but he says that his partner is at home at all times and is able to supervise children and provide for their needs.
It is clear that the father and the mother separated at a time when the three children were all quite young. The evidence is also clear that the mother had some significant problems with alcohol leading up to, and after separation. It was primarily for that reason that the children have resided with the father.
The mother admitted that she had a drinking problem, in that she drank to excess every day for more then six years. However, she overcame that problem by “putting her mind to it” and with support from her husband and her sister. She acknowledges that the father has had the primary responsibility for looking after the children for ten years and that he has done a good job.
I accept the mother’s evidence that she has put her alcohol problems behind her and it is clear that she now has a much more responsible attitude to her children than she had in the early years after separation.
The father admits that T has stated on occasions that he wishes to live with his mother. Indeed, he accepts that T would probably prefer to live with his mother. However, his concern is that T has not expressed a “concrete reason” for wanting to change his place of residence. He says that he needs a reason before he will “turn T’s life upside down”.
The father admitted that he does not have any concerns about the mother’s alcohol consumption while she is living with her husband.
The father’s partner also admitted that T has indicated that he wishes to live with his mother. However, she is also concerned that T has not really given any real reason for wanting to move.
It was her evidence that T was only having two hours per week of tutoring from a representative of the Education Department.
In his first report, the counsellor reported that in June 2000 T was clear in his stated wish to live with his mother and that he had voiced that view to both parents. However, his view did not appear to be soundly based because his expressed reasons were that the applicant’s husband was a Hawthorn supporter and that there appeared to be more to do in the town where the mother lived. Further, T indicated that he “could live with it” if the Judge decided that he should remain with his father.
When interviews were conducted by the counsellor more than two years later (in September 2002) T was stating quite clearly that he wanted to live with his mother and that he had wanted that for some time. Both his sisters thought that his preference to live with his mother had existed for between two and four years.
T expressed a desire to re-enter the schooling system and appeared happy to attend a high school in the area where his mother lives. He also indicated that he would like to see his father on alternate weekends.
The counsellor commented: “It is clear there needs to be a serious re-assessment of the best arrangements for (T) before his high school years are lost in a mix of suspensions and limited home tutoring. The time would seem right, that little could be lost and much potentially gained from a change to living with his mother.”
In his second report, the counsellor reports that he made telephone contact with T’s school and the view was expressed that the sooner the changes occur for T the better. It was the view at T’s school that his disruptive behaviour was a manipulative attempt on his part to influence a change in his residence to be with his mother.
When the counsellor gave evidence, he indicated his view that the Court should not usually separate siblings unless compelling reasons exist, but that such compelling reasons exist in this case.
In relation to “A”, it is the mother’s evidence that she has expressed the wish to live with her mother on many occasions and with increasing strength. She says that T and A have an extremely close relationship and that A often wants to involve herself in T’s activities.
During his interview with the counsellor the father indicated his view that A tries to be fair to both parents. However, because she had not ever said anything to him about wanting to move, he assumed that she was content to continue living in his care.
The counsellor’s description of A is that she “is still a very reserved child and not uncommonly feels overwhelmed by pressures within her family, particularly to decide between her mother and father.”
The counsellor goes on to say that her simple statement was: “I can’t decide.”
The counsellor says that A thought that if T did go to live with his mother she would probably miss him but understood that she would still see him at weekends.
The counsellor commented that a helpful insight offered by C in the interview was that in their family girls talk with girls and boys talk with boys, and for A there are more girls for her to relate to at her father’s home, which includes her best friend. C commented that when at her mother’s home, A maybe a bit more reliant on T because of the absence of close friends there. The counsellor commented that this may also explain why the mother has reported on occasions that A claimed that she wanted to live with her.
The counsellor commented that the time for a move for A would not appear to be right at this stage because:
(a)she has not expressed a preference at this time;
(b)she needs the security of those people who are important to her, including her friends; and
(c)it is possible that a significant amount of time and energy will be taken up in re-establishing T, and A’s needs may not be as recognisable during that time.
In his third report, the counsellor indicated that the father and his partner were “currently going through a rough patch”. They were keeping their distance from each other and he was residing in the caravan at the family home. The counsellor asked him directly if the police had been called to his home and he confirmed that somebody had called them because of the “arguments and some pushing and shoving”.
Not surprisingly, this resulted in some extensive cross-examination of the father and his partner. The father conceded that he had been charged with some offence arising from the incident but that the charges had been dropped. He said that his partner had not told him that the relationship was over but she had used some vernacular to suggest that they needed to sort things out.
When the father’s partner was cross-examined, it became clear that there had been other such incidents. She said that during the incident in question, the father had punched her in the side of her face. She also said that they were both drunk at the time, but the father was not as drunk as she was.
The father’s partner said that her relationship with the father was not over.
Her evidence was that the occasion was not the first time that he had struck her but that previous occasions had been “years ago”.
The Law
It is perfectly clear that I should not make any Orders changing the residence of either T or A unless I consider it to be in the best interests of the particular child. Further, subsection (2) of section 68F of the Family Law Act 1975 sets out the matters that I must consider in determining what is in a child’s best interest. See B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755. Consequently, I shall consider those matters that are relevant to this particular matter.
The children’s wishes
In considering this factor, I am required also to consider other factors such as the children’s maturity or level of understanding that are relevant to the weight I should give to the children’s wishes.
It is clear that T holds a very strong wish to live with his mother and he has held that wish for some years. It is also clear that an undesirable manifestation of the frustration of that wish is his disruptive behaviour at school, which has caused him to be suspended.
T is now fourteen years old and, although the counsellor describes him as being a rather introverted young man who appears to have great difficulty expressing himself, there does not seem to be any uncertainty about the strength of his wishes.
There may be many causes for him not providing his father with concrete reasons for wishing to move, and one of them could be that he does not wish to hurt his father’s feelings. However, this does not lessen the intensity of his wishes.
On the other hand, A would clearly prefer not to make a decision about where she should live. She is nearly thirteen years old.
The nature of the relationship of the children with the parents and other persons
It seems clear that T and A both have good relationships with both of their parents. This is despite the fact that the parents own relationship with each other is not good, and has not been good for many years.
It seems clear to me that T has a normal teenage relationship with his two sisters and he appears to get on well with the respondent’s partner and her children.
I have no hesitation in accepting the evidence of the applicant’s husband that T and A share a very close relationship with him.
The likely effect of any changes in the children’s circumstances
It seems to me that a likely effect of a change of T’s residence to that of his mother is that will return school. That can only be in his interests because he is currently missing almost all the benefits of a formal education.
While it seems to me to be clear that T would initially miss his siblings if he is the only child to live with his mother, that would be alleviated to a great extent by regular and frequent contact.
On the other hand, a separation of A from her father, her sister and her friends could have a significant adverse effect upon her.
The capacity of each parent to provide for the needs of the children
This factor includes providing for the emotion and intellectual needs of the children. In this regard, it is clear that their father is not currently giving proper consideration to the intellectual and educational needs of T. The mother shows a more appropriate level of concern about T’s schooling and it is clear that T needs to be given the opportunity to resume his formal education as soon as possible.
In general, however, the parties are both able to provide for the children’s physical needs.
Both have shown a good appreciation of C’s emotional needs, in that they realise that she is mature enough to determine where she lives and how often she visits her parents.
Family violence
It was put to me by counsel for the mother that, although A had not expressed a clear preference of where she should live, she should live with her mother because there is no domestic violence in that household. However, it seems to me that the only evidence that I have about recent domestic violence relates to the father hitting his partner in the face one weekend shortly before the interviews for the counsellor’s third report. The father’s partner stated that she was more drunk than he was at the time and that he had not struck her for years prior to that.
Although it is likely that the children were awake at the time of that particular incident, they do not appear to have been physically present. Further, I have no evidence that this has had any adverse affect upon them. The counsellor interviewed them after that incident and no adverse effects were noted by him.
Consequently, it is clear that this is not one of those cases where the Court needs to act protectively in the interests of the children because of consistent domestic violence.
The Order that is less likely to lead to further proceedings
It appears that C is having some thoughts about leaving home, particularly in relation to the completion of her secondary education. She also appears to have some unrealistic thoughts about living on her own. That may mean that she could decide to live with her mother at some stage in the future. However, that is all supposition and there is certainly no clear evidence that will happen.
Counsel for the mother suggested that, because of that possibility, I should make orders that provide for both T and A to live with their mother. I do not see it that way and it seems to me that the possible disadvantages of making an order that A should reside with her mother outweigh any advantages.
The practical difficulty and expense of contact
If T is to live with his mother and A is to live with her father, then it is clear that contact between them should be as frequent as possible. In my view, the best way to accommodate that is for there to be alternating weekend contact during school terms on the basis that A goes to her mother’s house for one weekend and T goes to his father’s house for the next weekend, and so on. That would mean that the non-residence parent would be having contact every second weekend but the children would see each other every weekend.
The time that T and A spend with each other during school holidays should be maximised on a similar basis.
It is clear that such contact on a more frequent basis will impose a greater travel burden upon the parents. In this regard, I can see no reason why that travel burden should not be shared between them. It will be good for the children to see that their parents are both involved in the process of making contact work. However, for practical reasons, both parents may have to rely upon their respective partners for assistance on occasions with the transporting of the children between their respective households.
Conclusions
Having considered these matters carefully, I come to the conclusion that the Court should grant T his very strong wish to live with mother.
Further, the contact ordered should maximise the time that T and A spend together.
It is clear that C will determine for herself where she lives and how much contact she will have with her parents.
I was not addressed at any particular length in relation to contact by counsel for either party, so I shall grant liberty to apply in relation to the implementation of the contact orders that I make.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 5th November 2002
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