Callaway and Marni

[2013] FamCA 440

FAMILY COURT OF AUSTRALIA

CALLAWAY & MARNI [2013] FamCA 440

FAMILY LAW – CHILDREN – Child 12½ years with strong views having witnessed conflictual relationship of parents for 10 years – Child not mature enough to make own arrangements at this age but may at the end of 2014.

Family Law Act 1975 (Cth)

R v R (Children’s wishes) (2002) FLC 93-108
Re:  F (Litigants in person guidelines) (2001) FLC 93-072

APPLICANT: Ms Callaway

RESPONDENT: Mr Marni

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7438 of 2008

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McNamee

SOLICITOR FOR THE APPLICANT: McKean & Park

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Combes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich

Orders

1. That all extant orders are discharged.

2. That the mother have sole parental responsibility for the child N born … November 2000, (“the child”). 

3. That the child live with the mother.

4. That until the end of the 2014 school year, the child spend time with her father as follows:

   (a)on the last weekend of each month from 10.00am Saturday until 6.00pm on the Sunday with the mother delivering the child to the father at his residence at the commencement of that period and the father returning the child to the mother at the conclusion of that period;

   (b)on the second and third Thursday nights in each month from the conclusion of school on the Thursday until the commencement of school on the Friday morning; and

   (c)for some period of each of the school term holidays and long summer holidays by agreement between the father and the child and in default of agreement, no such time occur.

5. That the monthly weekend and the overnights on the Thursdays shall continue during school holidays.

6. That as and from 1 January 2015, all time pursuant to these orders between the child and her father is discharged and any time thereafter shall be by arrangement between the child and the father.

7. That all extant applications are otherwise dismissed.

8. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callaway & Marni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7438  of 2008

Ms Callaway

Applicant

And

Mr Marni

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. N, (“the child”) is 12½ years old.  Her parents Mr Marni (“the father”) and Ms Callaway (“the mother”) have been litigating for approximately 10 years.  They disagree whether they have had “about 22 court appearances” or “over 25” attendances at court; it obviously matters little who is correct but it is noticeable that this intractable conflict is documented in five volumes of court files and the community’s resource through its judicial process has been significantly used up to the prejudice of other court users.  Suffice to say, this is just another parenting dispute as the child edges ever closer to adulthood.

2. This case is whether the child should, from the mother’s perspective, be able to choose whether she spends time with her father at her wish or, from the father’s perspective, spends time with each parent on a week-about basis.

3. Other initially contentious issues were whether the child should have a passport and whether the mother should have sole parental responsibility.  The father argued neither of those matters.  Indeed, he agreed that there should be a passport issued. 

4. In his opening position, the father sought the continuation of the week-about order for the child but as the case ended, after the evidence was heard and tested, he sought that if the original position was rejected by the Court, he should have the child for alternate weekends and half of school holidays.

5. An Independent Children’s Lawyer was appointed and adopted the position that the child did want to see her father but not on the basis that he proposed.  In final submission, counsel for the Independent Children’s Lawyer said that orders should be made for one weekend per month and some overnight time in between.  Each party and the Independent Children’s Lawyer had an opportunity to address an alternate position to that of the Independent Children’s Lawyer.  I suggested that there be a sundown clause on any order so that the child knew she had no absolute right to presently decide what her contact with her father would be.

6. It was the Independent Children’s Lawyer’s submission but not that of the mother that there is a good relationship between the child and the father.  It is hard however on the evidence presented, to judge exactly the depth and nature of that relationship.  It is clear on the evidence that the child is entering her teenage years and very much asserting a view about what she wants.  Whilst children at this tender age would not normally be given a licence to decide their future, it is important to take into account that the child has only ever known conflict between her parents.  As part of that conflict she has shuffled back and forward between them.  It is not at all surprising that the child has had enough.

7. In my view, it is proper as well as in the child’s best interest for orders to be made that she spends a dedicated weekend a month with her father but also two week day overnights per month with her father until the end of the 2014 school year.  That will enable the good relationship to continue but at the same time, send a message to the child that she is not completely in a position to determine her own future.

8. In addition to the parenting orders mentioned above, the mother should also have sole parental responsibility.  These are my reasons.

9. The mother is a 36 year old healthcare worker who is studying and about to commence her own business.  The father is a 49 year old public servant.  These parties were in a relationship for two years ending in 2001.  Final consent orders were made by Guest J in 2006.  The significance of those orders was that, by consent, the child was to live with the father and to spend a variety of times with her mother.  Only two years later, further proceedings occurred and this time on 24 September 2008, the orders of Guest J were reversed.  Since that time, the child has lived virtually on a full-time basis with her mother and spent some weekends with her father.  Early in 2013 however, that changed.  Since early in this year, the child’s time with her father has been extremely limited.

10. Each party has children from other relationships.  Each agreed their communication levels with each other were not good even though recently they met at an hotel to discuss what to do about the child.  But even arising out of that meeting they disagreed about the outcome.  For reasons which follow I accept the mother’s version of the outcome of that meeting. 

11. To a limited extent, each party put their credibility in issue and having had the opportunity to watch and hear each, I am content to find that of the two, I found the mother a more reliable witness.  She was more precise, focussed and importantly, has a major attachment figure with the child which is clearly not evident in the father’s life.

12. The father was unrepresented and when challenged about the paucity of his evidence, he simply shrugged his shoulders and said that he did not consider the things that he was being questioned about were terribly relevant.

13. Perhaps unfortunately, there was one conflictual issue about an SMS message sent by the child to the father.  In her evidence, the mother quoted that message.  The father did not challenge that evidence notwithstanding a warning about unchallenged evidence.  In evidence in chief, the father said he did not have the message on his mobile telephone anymore and questioned whether it had even been sent.  I have little doubt that it was sent because it was consistent with some other evidence of what the child has done particularly since the start of 2013.  In the end, but only after considerable cross-examination, the father conceded that the child was probably saying that she did not want to spend the week-about arrangement with him but his hypothesis was that the child was under pressure from her mother.  There is no evidence of such pressure and at its highest, I find that the mother is ambivalent about the relationship between the child and her father.

14. I explained to the father the process that the Court would follow using the guidelines in Re:  F (Litigants in person guidelines) (2001) FLC 93-072. The father acknowledged that he recognised and knew the process well. Indeed, his actions confirmed that.

15. Wherever there is a dispute between the parties, I have determined the matter on the balance of probabilities.

16. Prior to the case coming on for hearing, it was listed for directions and orders were made for affidavit material to be filed.  The father’s affidavit was extremely limited in its focus and indeed, much of what he had to say was conjecture and irrelevant.

17. There are two important facts in this case which were not disputed by the father.  They were:

    (a)The child has on at least one occasion, run away from a weekend with the father; and

    (b)The child has written to her father and he to her, indicating a very powerful understanding of what is going through her mind and what she wants.

18. As an indication of the litigious nature of this intractable conflict, there was a contravention application brought by the father against the mother arising out of the weekend in which the child ran away.  The application that the mother be dealt with for contravening the order was dismissed.  The following appears in the judgment of 19 December 2011:

    3.The evidence, which seems relatively uncontroversial, is that sometime in the middle of the afternoon of the Sunday, [the child] was on a trampoline with her mobile telephone, she jumped off the trampoline and was seen running away.  Her father followed her in his car.  His evidence is silent on what happened then other than the fact that he suspects that the mother somehow or other orchestrated that. 

    4.His suspicion, unfortunately, is not borne out by the evidence of the mother.  Her evidence is that, in the afternoon of the Sunday, [the child] telephoned to her and asked her to come and collect her.  [The child] was quite distressed, bordering on hysterical.  At a point in time thereafter, the mother drove towards the area, which is about six to eight kilometres away, and turned into a road where she saw a car in the street in which [the child] was sitting.  [The child] was in the company of a passer-by who had obviously come to her aid. 

    5.No discussion took place between the parents, which is indicative of the nature of their capacity to communicate with one another.  Somehow or other, some other people intervened and suggested that [the child] be taken home.

19. I find that since 2011, the child’s view about time with her father has begun to appear regularly.

20. In October 2011, Senior Registrar FitzGibbon made orders by consent of the parties that earlier parenting orders remain in force.  It is noticeable however that additional orders were made by consent of the parties restraining the father from consuming alcohol.  The father endorsed the order with a notation that he agreed to it without the admission of its necessity but according to the evidence of the mother in this hearing, the issue has not gone away. 

21. Furthermore, in the orders made by consent in October 2011, each of the parties agreed to be restrained from denigrating each other or discussing the proceedings.  It is clear that in 2011, problems between the father and the child were looming. 

22. In her evidence, the mother said that because the child was now older, she had fewer concerns about the father’s parenting ability but it was her understanding that his drinking habits had not changed and that he frequently drank to excess, was loud and verbally abusive.  All of that information according to the mother came from the child.  The mother went on to say that the child told her that the father regularly became drunk.  The father’s response to that was that the allegation was not plausible because it had never been suggested that he could not do his job as a public servant properly.  I am not convinced that he saw the problem.  I am not in the position to make a finding that the father does drink to excess but I accept it has been a complaint made by the child to her mother.

23. The mother’s evidence was that over the last 12 months, the child had at times been teary-eyed, introverted and somewhat flat in her demeanour.  There was little to link this evidence with the intractable conflict of the parties.  There was one incident however which indicated that the child still sees some benefit in a relationship with her father.  The mother said that there had been an inappropriate use of Facebook by the child and her peers.  She stepped in to limit its use and had a dispute with the child.  The mother told the child to go to school but later found out that the child had gone to her father’s home.  Because of the poor relationship between the parties, the police were involved.  This ultimately led to a meeting between the parties at a hotel.  The mother said that this occurred on 26 March 2013 and that at the meeting, the father agreed that the child would reside with her on a full-time basis and contact him when she felt like it.  The father agreed the meeting took place but did not agree that he had made that concession.  The running away incident and the complaints by the child about her father were all occurring around this time.

24. In the weeks before that meeting took place, the child had written to her father clearly asserting (perhaps inappropriately) that she was in control.  She said:

    Im 12 and Im capable of making my own decisions and Ive been thinking about this for a while and I think it’s best if I stay at Mums now, I see you a couple times a week (sic).

    You’ve said that when Im in high school I’ll probally live at Mums coz it’s a “girl” thing. (sic)

    Ive been telling you I want things to be different but your not listining to me and what Im saying so now Im going to live at Mums and see you a couple times a week. (sic)

    Don’t come to school and embarress me, it will make me not come near you. (sic)

    I like spending time with you like when we went looking for a wet suit and surf board. (sic)

25. The father responded to that letter by saying that the court orders were to remain “regardless of what you say or write”.  The father then said:

    This is because the court will decide what is in your best interest.

26. The father’s letter obviously did not go well with the child.  She responded:  

    Leave me alone and respect what I want!  Im sick and tired of you and [Ms B] telling me what to do.

    The child went on to say that she did not want to be at her father’s house anymore and demanding that he understand what she was saying.  She then said that her mother could not make her go nor could anyone else.

27. The child’s letter even went so far to say that the letter that her father had written was not in his own handwriting.

28. The child’s second letter made reference to Ms B.  This gave rise to another dispute between the parties.  The mother said that the child had complained that the father’s partner frequently raised her voice at her even to the extent of screaming at her in a restaurant and embarrassing her.  The father’s version was that none of these things happened and that the child had a good relationship with Ms B and sought her out as soon as they met.  The father’s partner was not called to give evidence.

29. Whatever exactly is going on in the father’s household, I find the child is telling her mother the sorts of things that the mother gave in evidence and which remain unchallenged.  The absence of the father’s partner along with the letter written by the child indicates that the relationship between the child and the partner is not as good as it might be and indeed, could be creating some of the resistance by the child to spending time with the father.

30. Despite all of that doom and gloom, on the very Tuesday prior to the hearing beginning, the child chose to spend time with her father but all parties agreed that Ms B had not been present.

31. As mentioned earlier, the father’s evidence was sparse.  He said that he had been in a relationship with his partner for six years, two of which they had lived together.  Her absence as a witness was therefore noticeable.  Unfortunately, the father chose in his affidavit to make reference to the mother being diagnosed with bipolar disorder and being treated by medication.  Having regard to the nature of the application before the Court which would have sought a week-about arrangement from the father’s perspective, that evidence was irrelevant.  The father then accused the mother of making allegations of sexual abuse and none of that was relevant to these proceedings either.

32. In a disturbing statement which was not the subject of any cross-examination by either counsel for the Independent Children’s Lawyer or the mother, the father made reference to the child’s grandfather looking after her in an unsupervised fashion.  He said that he made a report to the Department of Human Services on the basis that they had informed him that an older person buying expensive gifts for a child without corresponding obligations on the part of the child to do chores was a recognised form of “grooming” for their own sexual satisfaction.  That allegation was scurrilous having regard to the nature of the proceedings.  The father did not call any evidence as to the outcome of any investigation by the Department nor, as I have indicated, did he seek to have the child removed from the environment of her mother.

33. Having regard to the extensive number of court appearances and the longevity of the litigation, the father well understood that he needed to produce evidence that would assist the Court in determining what was in the best interests of the child.  Indeed, as was indicated in his letter to the child, that is the test for the Court.

34. I find on the evidence therefore that the child understands what is going on between her parents and has adopted a position of defiance to continuing the relationship between she and her father that has been extant for a number of years.  There is sufficient evidence for me to find that the child is taking matters into her own hand.  That is troubling.  There is also sufficient evidence to enable me to find that the child does enjoy some time with her father and that she is not yet of an age where she should have an unfettered discretion as to whether or not she complies.  It is important that the relationship between the child and her father be continued.  It is not appropriate for the Court to simply accept what the child wrote in the letter about 12 years of age being the appropriate time for her to decide what she wants to do.  I do accept that by the end of 2014 however, she will be of an age where her views would carry a lot more weight than they do at the moment.

The legal issues

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the law in relation to parenting disputes. Section 65D empowers the Court to make an order regarding the care arrangements for children including who is to be responsible for making long-term decisions about them, who a child is to live with and a variety of contact arrangements.

1. Section 65D provides that the power is subject to the presumption of equal shared parental responsibility set out in s 61DA.  In this case the father simply seeks a continuation of the existing regime.  The existing regime includes equal shared parental responsibility but the parties do not communicate with one another at all.  It is quite clear on the evidence that the mother makes all of the decisions about the child’s long-term issues.  Having heard the father, I am satisfied that he has a very limited understanding of what the child’s needs are and has shown no significant interest in making decisions about her health or education.  At its highest in respect of the latter, he said that he helped the child with her homework but that has not occurred virtually at all in 2013. 

2. Section 61DA(4) permits the Court to rebut the presumption of equal shared parental responsibility where it is not in a child’s best interest.  Having regard to the agreed position of the parties that they do not communicate well if at all, it would not be in the child’s best interests for the parents to have equal shared parental responsibility.  The reality is in any event that the mother is carrying out that task of making long-term major decisions concerning the child by herself and I see every good reason in this case to put that into formal orders.

3. Section 64B(1) defines a parenting order.  An order may be made in relation to any aspect of the care, welfare or development of a child as well as any other aspect of parental responsibility. 

4. When making a parenting order, s 60CA requires the Court to consider that the child’s best interests are the paramount consideration.

5. To determine what is in the child’s best interest, s 60CC provides a check list of how those interests are determined.  The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. The words “meaningful relationship” do not just mean contact between parent and child.  There must be some benefit for the child in having that relationship.

7. There is already a relationship between both parents and the child.  The child is clearly attached to her mother and as her correspondence indicates, she has a desire to spend more time with her mother.  She is maintaining a relationship with her father including by text messages but according to the evidence of all parties, the messages are rather pre-emptory.  I find that there is a meaningful relationship between the child and her father and she will benefit from it more if there is less time but that the time should be dedicated to doing things that the child and her father enjoy best.

8. There is no evidence upon which I would find that there is a need to protect the child from physical or psychological harm notwithstanding the assertions of the father and the concerns expressed by the mother about the relationship of the father with his partner and the child’s exposure to it.

9. Section 60B of the Act provides the principals and objectives of Part VII of the Act. It is the right of the child to have contact with and communicate with both parents. It would not be appropriate in my view to simply allow the child at the age of 12½ to make decisions without consultation with her father but at the same time, I find it would be better for that contact and communication to be defined and more limited.

10. Section 60CC(3) sets out additional considerations to those that I have mentioned earlier and they can be dealt with globally in this case. 

11. The child has expressed a very clear view about the time that she wishes to spend with her father and to some extent, the Court will respect that view.  It would not be appropriate however to simply accept that the child is mature enough and understanding of the situation to allow her an unfettered role.  That can be seen in the Facebook dispute and the fact that she ran away from her mother but also in the contact period that she had with her father immediately prior to the hearing.  That type of relationship needs control by the parents and the mother needs to understand that she has to ensure that the child is to spend time with the father because the Court found that it was in her best interest to do so.  It is important also to note that the law says that children’s views must be taken into account but the Court is not bound by them (R v R (Children’s wishes) (2002) FLC 93-108). This is a case where the views will be followed but not entirely.

12. The evidence indicates that the relationship between the child and her father is limited.  Conversely, she has a very close and loving relationship with her mother.  The mother being her major attachment figure, it is important that that relationship not be strained.  Both mother and father need to indicate to the child what the Court’s view is about spending time with her father.  There is little evidence before me about how the father spends time with the child.  The mother explained to me the significant involvement she has in the child’s life.  Notwithstanding the absence of the child from the father’s life since the start of 2013, he had not been to any of her activities nor to her school.  His explanation was that he felt that that was inappropriate but at the same time, had he made the effort it would have enabled the child to at least know that he cared for her.  All of the activities are otherwise undertaken by the mother.  I am satisfied that the mother fulfils all of the child’s needs including her emotional and intellectual needs.

13. The attitude of parents to their children and the responsibilities of parenthood is another consideration that reflects best interests.  If a parent fails to work with another parent or significantly participate in a child’s life when it is a possibility, it reflects poorly on that parent.  Resorting to litigation as the father seems to do, is now showing how things have failed.  The child could not have missed all of those disputes and has clearly aligned herself with her mother.

14. There is no evidence in this case of family violence notwithstanding all of the litigation that has gone on in the past.  I find there is no basis for the Court to be concerned about the child’s physical welfare in the care of either parent.

15. Section 60CC encourages courts to consider whether it would be preferable to make an order which would be likely to preclude further proceedings involving the children.  This is an example of a case where constant litigation has defied that principle.  The parties have a very small window of opportunity left before the child does decide her own future.  It is not simply a case that the father needs to step away from his responsibilities as a parent.  The mother too is aware that the child may take matters into her own hands unless some counselling or other assistance is provided to the child.  Further litigation in this case will only exacerbate the problem.  Accordingly, I find it is in the best interests of the child that these be final orders and that there be a sundown clause on the assumption that the child at the end of next year will be not only engrossed in extra-curricular activity as a teenager but also labouring with high school studies and activities that will make leisure time with either parent difficult.  Accordingly, I propose to make an order that the orders cease at the end of the 2014 school year but that thereafter, the child’s time with her father be as she so desires.

16. I do not propose to make any further comments in relation to s 60CC(4) and (4A) as those matters have been adequately covered above.

17. In my view, it is in the best interests of the child that the existing orders be discharged and a new set of parenting orders be put in place.

I certify that the preceding Fifty Two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 June 2013.

Associate: 

Date:  14 June 2013