D and D
[2003] FMCAfam 59
•4 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2003] FMCAfam 59 |
| FAMILY LAW – CHILDREN – Residence – best interests of child – wishes of child – weight to be given to expressed wishes – two children residing with mother – boy aged nine years and girl aged six years – boy expresses strong wish to reside with father. Family Law Act 1975, ss.60B,65E,68F M & M (1988) 166 CLR 69 |
| Applicant: | G E D |
| Respondent: | L J D |
| File No: | PAM 3845 of 2002 |
| Delivered on: | 4 March 2003 |
| Delivered at: | Parramatta |
| Hearing Dates: | 4, 5 and 28 February 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Macpherson |
| Solicitors for the Applicant: | Reimer Winter Williamson |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | Lamrocks |
ORDERS
The orders made by consent in the Family Court of Australia at Parramatta on 2 November 2001 are discharged.
The children of the marriage D A D born 10 September 1993 and B T D born 3 June 1996 are to reside with the applicant father.
The respondent mother is to have contact with the said children as follows:
(a)For the first, second and third weekends of each month during school term time from 6.00 pm on the Friday to the commencement of school on the Monday morning provided that where the Monday is a public holiday then contact will conclude at the commencement of school on the Tuesday.
(b)For one half of each New South Wales school holiday period at times to be agreed between the parties. Failing agreement for the first half of the school holiday period in years ending with an odd number, not to include Christmas Day, and for the second half of the school holiday period in years ending with an even number.
(c)From 3.00 pm on Christmas Day until 6.00 pm on Boxing Day in each year.
(d)From 12.00 pm until 7.00 pm on each of the children's birthdays and on Mother's Day.
(e)From 9.00 am on Mother's Day each year until the commencement of school on the Monday immediately following Mother's Day if that day should fall on a weekend when the mother would not otherwise be entitled to contact.
(f)At such other times as the parties shall agree.
The mother is not to exercise contact to the said children between 9.00 am on Father's Day and the commencement of school on the Monday immediately following Father's Day.
School holiday periods are deemed to commence at 9.00 am on the morning after school term concludes and to conclude on the day before the first day the children are required to attend school at the commencement of the new school term.
For the purpose of contact changeover pursuant to order 3(a), the mother is to collect the children from the father's residence at the commencement of each contact period and return the children at the conclusion of each contact period.
For the purpose of contact changeover pursuant to the balance of
order (3), the mother is to collect the children from the father's residence at the commencement of contact and the father is to collect the children from the mother's residence at the conclusion of contact.The application is removed from the pending cases list.
All documents produced in answer to subpoena with the exception of exhibits may be returned.
I require a transcript of my reasons for this decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM3845 of 2002
| G E D |
Applicant
And
| L J D |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of two children, a boy aged nine years and a girl aged six years, to discharge consent orders made in the Family Court of Australia at Parramatta on 2 November 2001.
Those orders had provided that the two children should reside with their mother and that the father have contact each weekday afternoon, each alternate weekend, each other Sunday evening until Monday evening, half of school holidays and other special days such as Christmas day. What the father now seeks is that the children should reside with him and the mother should have generous contact with the children.
In her response filed 27 September 2002 the mother sought to vary the original orders by reducing the father's contact to a more standard arrangement of alternate weekends, half school holidays and other special days. The solicitor who filed the response is no longer acting for the mother. On the first day of the hearing of this matter
4 February 2003, it was the mother's position that she was unclear as to what orders she sought, other than that the current order should remain.
On the final day of the hearing, the mother, through her counsel, indicated that the orders that she sought were essentially those set out in her response with the addition that the father should have contact with the children each Monday, Wednesday and Friday afternoon from after school until 6.00 pm.
The father and mother are respectively 41 and 39 years old. The father was born on 23 December 1961 and the mother was born on 23 June 1963. They commenced to reside together in 1991 and they were married on 12 September 1992. There are two children of the marriage; D A D was born on 10 September 1993 and B T D was born on 3 June 1996. The children presently reside with the mother, although they spend time with their father every afternoon after school.
The father was made redundant from his work in July 1993 and later obtained part-time employment for two days a week as a taxi driver. The mother returned to work about 18 months after the child B was born, although she worked casually 4 hour shifts once or twice a week. The father commenced working shift work in 1998 and in that same year, the mother commenced full-time work with the New South Wales R and T Authority.
The parties initially separated in January 2000, but were reconciled. The final separation came in January 2001 when the father left the matrimonial home. The mother has since formed a relationship with a Mr J H. The father has not re-partnered.
On 2 November 2001 orders were made by consent in the Family Court at Parramatta. Those orders provided that the children should reside with the mother and the father should have contact on weekends after school and during half the school holidays. There have been disagreements between the parties about the payment of child support by the father. The Child Support Agency took action to garnishee the father's wages in late 2002. The father has since left his employment and is currently unemployed.
The mother claims that the father has left his employment to avoid paying child support, the application for residence is connected to this. The father says that he has commenced these proceedings because the mother would no longer communicate with him about the children, except by text messages on their mobile telephones. The mother says that she only sent text messages to advise the father when she was going to be late home from work. In any event, the mother has now agreed that she will make direct telephone calls to communicate with the father and this situation has commenced since the matter was first before the Court early in February.
The father says the child D strongly wishes to live with him and that he is acting out because he cannot do so. The mother denies this saying that the child has had a history of behaviour problems since he was little. She says that the child's expressed wish to reside with his father should not be given any weight as he changes his mind regularly. Nine year olds, she says, are fickle.
She accuses the father of attempting to buy the child by promising him a motor bike if he goes to live with him. Neither parent wishes to entertain the idea of separating the children. It is noted that the child B does not express the same strong wish to live with the father as her brother does.
The father gave evidence by affidavit and was cross-examined by
Ms Judge, the mother's counsel. The father called no other witnesses. The mother gave evidence by affidavit and was cross-examined by
Mr MacPherson for the father. The mother also provided affidavit evidence from J L H and a friend called P C. Neither of these witnesses was required for cross-examination.
I ordered a family report pursuant to s.62G of the Family Law Act 1975 (Cth). Ms Lilly Cheng, a court counsellor prepared this report. In her report, Ms Cheng said that D stated very clearly at the outset, he wanted to live with his father. She said that if his wish to live with his father were not heeded, he would be likely to be unhappy. Moreover if his contact with his father were to be cut down, he would probably be extremely angry towards his mother.
Ms Chen did not find that the younger child B was expressing a wish to live with the father in anything like the strong terms that the brother was. She said that she did not wish to choose with which parent she wanted to live. She has a split loyalty and would prefer that her parents were together again. The children were asked to do some drawings. The counsellor observed drawings by the child D where he drew pictures of his parents with a bubble coming from his mother's mouth saying "I hate you" towards the father, he drew his parents in the future with a bubble coming from her mouth saying "I love you" towards his father. The counsellor saw that, as do I, as indicative of the child's perception of a conflict between the mother and the father. In her report Ms Cheng expressed the opinion that the father appeared to be more focussed on the children than the mother did, she described the mother as appearing to be more focussed on the father's shortcomings as a parent and her past difficulties with him.
Section 60B of the Family Law Act 1975 sets out the object of Part VII of the Act which deals with applications relating to children. Section 60B(1) says that:
The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
Section 60B(2) sets out the principles underlying the object in s.60B(1).
It is also quite clear from s.65E of the Act that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. In the decision of M v M (1988) 166 CLR 69 the High Court of Australia said that the ultimate and paramount issue to be decided in proceedings for custody of or access to a child is whether the making of the order sought is in the interests of the welfare of the child.
Section 68F(2) sets out the matters that the Court must consider when deciding what is in the child's best interests. Those matters were considered by the Full Court of the Family Court of Australia in B v B; Family Law Reform Act 1995 (1997) FLC 92-755; 21 FLR 676. The Court held that in proceedings under Part VII relating to parenting orders, which include relocation cases, the best interests of the particular child in that case remains the paramount consideration: s.65E. In that process the Court must consider the matters set out in s.68F to the extent that they are relevant in a particular case, the weight to be attached to any one consideration depending upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The Court must consider all the matters in s.68F although not all of them will be relevant in every case, and I have done so in the matter before me.
Section 68F(2)(a) is to my mind important in this particular matter. It relates to any wishes expressed by the child and any factor such as the child's maturity or level of understanding that the Court thinks relevant to the weight that it should give the child's wishes. The Court should consider the children's wishes and give them such weight as the Court considers appropriate in the circumstances; I refer to Harrison v Woollard, a decision of the Full Court of the Family Court in 1995, it is also reported as H v W. The Court must take children's wishes into account but is not bound by them; I refer to R and R: Children's wishes (2000) 25 FLR 712; FLC 93-000. See also In the Marriage of R: Children's wishes (2002) FamCA 383; 29 FLR 230.
Whilst the ages of the children concerned will have a bearing on the weight that the Court will give to their expressed wishes, even the wishes of relatively young children will be relevant. In Joannou (1985) FLC 91-642 the four children concerned were aged eight, seven, five and four. The Full Court of the Family Court held that the evidence of the wishes of those children would not have been irrelevant; it may or may not have been helpful depending on factors which could only become clear when the counsellor had seen the children and given the report. In Radford v Alpe (No.2) (1985) FLC the Full Court upheld a decision by the trial Judge that the children were likely to be so resentful if they were taken from the care of their mother that their resentment would be such as to damage irreparably their relationship with the father and his new wife.
The children in this case are aged nine years and six months and six years and nine months. Their wishes are certainly not irrelevant to this matter and will be taken into account. It is noteworthy that the child D has expressed a clear wish to live with his father and this has come through strongly in the report.
Section 68F(2)(b) refers to the nature of the relationship of the child with each of the child's parents and with other persons. Clearly the children would need to have contact with both parents. If D were to live with his father the evidence suggests that he would be happier although the mother denies this. Mr MacPherson of counsel pointed out in his submissions the current arrangements have been a form of shared care in any event; the children spending every school afternoon with their father.
Section 68F(2)(d) refers to the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations in direct contact with both parents on a regular basis. The parents live at C Park and E Park which are suburbs in the same general area of S. They already go from the father's house to the mother's each weekday evening during school term time and I am not of a view that there is any significant difficulty from a practical point of view in the children having contact with either parent.
Section 68F(2)(e) looks at the capacity of each parent or of any persons to provide for the needs of the child including emotional and intellectual needs. This is a matter of some relevance in these proceedings. The mother's view is that she is more aware of the children's educational needs than the father and more likely to supervise their homework. She points to the fact that the father did not complete his high school education. Against this the children's school reports show that they are both doing well and that their homework is mostly done and there is a special section in each school report dealing with the issue of homework. Mr MacPherson of counsel pointed out that the children go to their father's residence after school, which would seem to show that he must have had some supervisory role with their homework. The mother was not of a view that the father deserved any credit for this and she commented that she had had some communication from the school in respect of the child D relating to the fact that some of his homework was incomplete.
The mother was critical of the father's cooking for the children, claiming that they largely have take-aways. The children staunchly defended his culinary expertise to the counsellor, the father gave evidence that he does not rely on take-aways but he was focused on preparing nutritious meals.
It is interesting that the father was described by the counsellor as more child focussed than the mother. The mother received some criticism from the counsellor as more focused on her past difficulties with the father and less able to focus on her children's needs.
I look at the children's maturity, sex and background as set out in s.68F(2)(f). D is aged nine years and six months, Bis aged six years and nine months. There is no judicial preference that the father is the preferred custodian for the boy (see the decision in Mulligan (1976) FLC 90-080) any more than there is a preference that the mother is the best person with whom young female children should reside with;
I look at the decision in Raby reported that same year (1976) 2 Fam LR 11,348; FLC 90-104. The proper approach is to make a full investigation of the relevant circumstances so as to make an accurate assessment of the suitability of each parent. The Full Court said this as recently as 1998 in Re Evelyn (1998) 23 Fam LR 53 and FLC 92-807.
The Court must under s.68F(2) look at the need to protect the child from physical or psychological harm caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour. The Court must look at any family violence involving the child or a member of the child's family and whether any family violence order applies to the child or a member of the child's family. These are just not relevant considerations as far as these parents are concerned. There is no evidence before me about violence or potential violence and I propose to take that issue as being irrelevant.
I look at the attitude to the child and to the responsibilities of parentH demonstrated by each of the child's parents. In that case the family report tended to favour the father. The counsellor indicated that Mr D is dedicated to the needs of his children and would make a satisfactory residence parent, although untried and untested. She said Mr D appeared to be genuine when he said that the children could still see their mother every day, although the counsellor commented that such arrangement would appear to be impracticable as the children would have to get out every night to have time with their mother and then go home to their father's place to go to bed.
The mother was described as a good enough parent. There are no perfect parents. The counsellor said she appeared to be focused, as I said, on her past difficulties with Mr D and appeared to be less able to focus on her children's needs.
I look at s.68F(2)(k) and whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. Mr McPherson submits that an order that the children should reside with the father with generous contact to the mother would be least likely to lead to further proceedings. Ms Judge of counsel for the mother submitted that the proposal that the mother put on the final day of the hearing, namely a return to the existing orders with the exception of the children spending Mondays, Wednesdays and Friday afternoons with their father and the mother taking time off work to finish early in the afternoon to spend more time with their children would be a more satisfactory arrangement for the children and would be least likely to lead to further litigation.
What then are the conclusions? The mother has, perhaps from necessity, been working for a fair amount of the children's lives and she is currently in full time employment. Nevertheless she is prepared to change that arrangement as she sees that as something which could well be to the benefit of the children. She would be prepared to work less hours at least on some afternoons so that she could spend more time with the children. She does in fact propose the children would spend more time with her and consequently less with the father.
The father is not working and wishes to remain as a full time parent and devote his full time to the care of the children. There have been issues over child support and indeed the mother's view is that the father's attitude to these proceedings is largely prompted by his desire to not have to pay child support or have a garnishment order against his wages. I would comment that if the father seriously believes that by having the children come and live with him it is a way of saving money, he would probably be seriously mistaken. Nevertheless it is noteworthy that of the two children B wishes to be with both parents and expresses the wish that they could get back together again. It seems to be unlikely. D has expressed a strong wish to go to his father and if his contact with his father were to be diminished as the mother proposes, I am of a view that this would cause the child some resentment. If the child's wish to go to his father is frustrated, this will certainly not lead to his increased happiness and may lead to a continuation of his acting out behaviour. The father is of the view that the child does not act out to anything like the same extent the mother's says, the mother says he has been doing it since he was a small child.
The mother in fact has constantly discounted the child's expressed preference to spend time with the father. This is not a case where a shared care arrangement would work; the communication between the parents is not as good as it could be and indeed as I said, Mr McPherson pointed out there had been a form of shared care.
This is not a case where the siblings should be separated. In most cases Courts exercising jurisdiction under the Family Law Act are reluctant to separate siblings unless there is some good reason to do so. It is not an option that the parents would want to countenance and each one of, them to their credit, feel that the children are better off together. It is not an option that I consider would be in the best interests of the children, based on the evidence before me.
The mother, of course, has a relationship with Mr H which appears to be a part time living-in relationship. The children were observed by the counsellor with him and they appear to have an easy interaction with him and their relationship with Mr H appeared to be a positive one. Mr H was not required from cross-examination and I am of the view that the only inferences that I can draw about Mr H are positive ones as far as his interaction with the children is concerned.
What then is the best order for the Court to make in the best interests of these children? It has been strongly submitted that I should not give a great deal of weight to the strongly expressed views of the child D and that I should make orders which would continue the present arrangements except the father's contact would be reduced somewhat but compensated by the mother altering her working hours. The father is of the view that he is available to be a full time parent and wishes to be one, at the same time he wishes to take a generous attitude to the mother as far as contact is concerned. The father appeared to be strongly ceased of the fact that regular contact with the mother and frequent contact with the mother would be in the children's best interests.
Having weighed up all the evidence, having observed the parties in the witness box and heard their evidence, having looked at the issues of education, nutrition, the availability of the father to be a full time carer, I am of the view that it is in the best interests of the children that they should reside with the father. There should be contact with the mother. I am not satisfied, as the counsellor is not satisfied, that the weekday contact with the mother is going to be in the children's interests but the mother is available on weekends and more than the usual alternate weekend arrangement for contact in my mind would meet the children's need, particularly B's needs to spend time with the mother.
For these reasons I make the following orders.
The father's contact, which is this weekend, so that residence would in fact commence Monday, 8 March 2003.
That the children go to the father from Friday afternoon, or Saturday, but certainly Friday, 7 March.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 10 March 2003.
0