Donovan and Hargrave
[2013] FCCA 146
•26 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DONOVAN & HARGRAVE | [2013] FCCA 146 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility whether children’s father should have sole parental responsibility – whether children should reside with their mother – children’s views considered. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 60CD, 61DA, 62G, 68L, 65DAA |
| Cases cited: Donovan & Hargrave [2010] FMCAfam 1458 Donovan & Hargrave [2011] FMCAfam 1494 Donovan & Hargrave [2012] FMCAfam 306 Donovan & Hargrave [2012] FMCAfam 410 In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713 |
| Applicant: | MS DONOVAN |
| Respondent: | MR HARGRAVE |
| File Number: | PAC 1122 of 2009 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 24 September 2012 |
| Date of Last Submission: | 24 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| Counsel for the Respondent: | The Respondent appeared in person |
| Independent Children’s Lawyer : | Ms Karagiannis |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
PARENTING ORDERS
All previous parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children of the marriage [X] born [in] 1997 and [Y] born [in] 2000.
The children [X] and [Y] are to live with the Respondent Father.
The child [X] is to spend time with the Applicant Mother in accordance with his wishes.
The child [Y] is to spend time with the Applicant Mother as follows:
(a)for a period of two (2) weeks over the December/January school holidays in each year from 2 January to 16 January in each year;
(b)on Mother’s Day in each year from 9:00am until 6:00pm;
(c)on Christmas Day 25 December in each year from 9:00am until 6:00pm;
(d)on Good Friday in each year from 9:00am until 6:00pm;
(e)on the child [Y]’s birthday [date omitted] in each year from 4:00pm to 8:00pm if that day should fall on a school day and from 10:00am to 6:00pm if that day should fall on a day other than a school day;
(f)from 10:00am to 6:00pm on the middle Sunday of the Winter school holiday period in each year and the middle Sunday of the Spring school holiday period in each year
(g)such other time including overnight time as the child [Y] wishes.
The Respondent Father must do all things reasonably necessary to facilitate the children [X] and [Y] spending time with the Applicant Mother whenever they wish to do so.
The Independent Children’s Lawyer is to explain these orders to the children [X] and [Y] within fourteen (14) days.
These Orders operate as an authority for the Applicant Mother to obtain copies of school reports and any other documents including newsletters and information about school photographs ordinarily provided to parents of children attending the children’s school.
The Applicant Mother is permitted to attend the children’s school for the purpose of participating in parent-teacher interviews in respect of each of the children [X] and [Y].
The Respondent Father must advise the Applicant Mother as soon as is reasonably practicable in the event of any medical emergency or other emergency relating to either of the children [X] or [Y].
These Orders operate as an authority for the Applicant Mother to obtain copies of any medical records or other documents and also to authorise any treating medical practitioner to consult with the Applicant Mother about the health and medical condition of both or either of the children [X] or [Y].
The Respondent Father must keep the Applicant Mother advised of each child’s mobile telephone number and email address and must advise the Applicant Mother of any change to the mobile telephone number or email address of either of the children within three (3) days of any change occurring.
The Applicant Mother is to have liberal telephone and email and other electronic communication with each of the children [X] and [Y].
The passports of the children [X] and [Y] are to be held by the Sydney Registry of the Federal Circuit Court to be released only on the joint signatures of the Applicant and the Respondent or Order of the Court.
THE COURT NOTES THAT:
A.Mother’s Day falls on the second Sunday in May each year and next falls on Sunday 12 May 2013.
B.Good Friday next falls on Friday 18 April 2014.
C.The middle Sunday of the Winter school holiday period in New South Wales Public Schools in 2013 is Sunday 7 July.
D.The middle Sunday of the Spring school holiday period in New South Wales Public Schools in 2013 is Sunday 29 September 2013.
IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 1122 of 2009
| MS DONOVAN |
Applicant
And
| MR HARGRAVE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the Mother of two boys, [X], who is now aged sixteen, and [Y], who is nearly thirteen years of age. The Mother seeks orders that the children should live with her and spend time with their father, her former husband.
The Father opposes these proposed orders. He seeks orders providing that the two boys should continue to live with him and spend time with their mother at their request.
Background
The parties are both from Vietnam, where they were married [in] 1997. They now reside permanently in Australia.
There are two children of the marriage. [X] was born [in] 1997, so he has recently attained the age of sixteen. [Y] was born [in] 2000. He is now twelve years and [omitted] months old.
The Father works as a [omitted] and the Mother is a [omitted]. She has her own [omitted] business.
The parties separated under the one roof but their accounts differ as to the date the separation commenced. The Father claims it commenced on 24th December 2006 but the mother claims that the separation did not commence until about the end of 2008.
The parties were divorced on 9th May 2009.
The children commenced living with their father on 2nd July 2010. The Father claimed that this was the result of an agreement because of the Mother’s extensive working hours but the Mother claimed that the Father had in fact retained the children without her consent and did not return them to her until 16th July. They remained with the Mother until 23rd July when the Mother claims that the Father took them to his home without her consent. The Mother did not see them until 19th August. The Father took the children back to his home on 20th August 2010 and they have remained living with him since then.
The Mother has not remarried but the father married Ms L on [date omitted] 2010.
Litigation History
The parties have been involved in litigation about their children since 3rd November 2010, when the Mother filed an Application seeking interim orders that the children should live with the Father and spend time with her. The Father filed a Response on 9th December of that year, seeking orders that the children should live with him and spend limited time with their mother.
The Mother’s Application came before the Court on 12th November 2010. The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they did on 15th November. There was no agreement between the parties. The Family Consultant noted the significant child protection allegations, each parent claiming that the children were scared of the other parent. The Family consultant recommended that the children’s interests should be represented by an Independent Children’s Lawyer and that a Family Report should be ordered.
After an interim hearing, Orders were made on 21st December 2010[1] that:
[1] Donovan & Hargrave [2010] FMCAfam 1458
a)The children [X] and [Y] would live with the Father;
b)The parties would have equal shared parental responsibility for them;
c)The Mother would spend time with the children:
i)from after school to 7:00pm each Monday;
ii)from 9:00am to 5:00pm each Sunday during the school term;
iii)from 9:00am to 7:00pm each Monday during the school holidays from 27th December 2010;
iv)from 9:00am to 7:00pm each Sunday during the school holidays from 2nd January 2011;
v)from 2:00pm to 7:00pm on Christmas Day.
vi)from 9:00am to 7:00pm on Boxing Day;
vii)such other times as the parties may agree.
An Independent Children’s Lawyer was appointed.
The Mother was ordered to deliver the children’s passports to the Sydney Registry.
On 11th February 2011 interim orders were made by consent providing that:
a)The Mother was to allow the children to attend to their own showering, toileting and bathing;
b)The Mother was not to leave the children unattended or in the care of a third party;
c)The Mother was to spend time with the children during school terms each Sunday from 11:00am to 8:00pm and from after school Monday until 8:00pm; and
d)Commencing 20th February from 11:00am on Sunday to 8:00pm on Monday and every third weekend thereafter.
On 18th April 2011 the Court made interim orders providing that:
a)The Mother’s application for final parenting orders was to be heard on 13th and 14th December 2011;
b)Changeover was to be at [omitted] Contact Service for each Sunday contact;
c)The children were to spend time with the Mother from 20th to 24th April 2011 for the purpose of her taking them to [omitted]; and
d)Varying previous orders so that the Mother was to spend time wit the children:
i)each second Sunday from 11:00am to 5:00pm;
ii)each other Sunday from 11:00am until before school on Monday;
iii)each third Monday from after school until before school on Tuesday;
iv)from after school until 8:00pm each Wednesday; and
v)from after school until 8:00pm on Mondays.
A Family Report was ordered and released to the parties on 1st December 2011.
The Mother filed an Amended Application on 29th November 2011 seeking final orders providing that:
a)the children should live with her; and
b)the children should spend time with the Father on alternate weekends and for half of the school holidays.
The hearing took place on 13th and 14th December 2011. There were also contravention proceedings heard that day, alleging that the Father had failed to comply with earlier parenting orders. Both parties gave evidence, as did the Family Consultant, Ms M. On 16th December 2011[2], I made interim Orders rather than final Orders, at the suggestion of the Independent Children’s Lawyer.
[2] Donovan & Hargrave [2011] FMCAfam 1494
My reasons were as follows:
69.This is an unusual case where the Independent Children’s Lawyer has submitted that the Court should make interim orders rather than final orders, and review the situation in about three months. One purpose of this is to allow the children to spend time with the Mother for two consecutive nights during the school term, from after school on the first day until the commencement of school two days later, as recommended by the Family Consultant.
70.The other purpose is, again as recommended by the Family Consultant, to enable the mother to attend upon a counsellor to assist her in meeting the children’s needs and allow her to attend a workshop for Vietnamese parents of adolescent children.
71.This proposal is not opposed by the Mother or the Father and appears to be in the best interests of the children at this stage.[3]
[3] [2011] FMCAfam 1494 at [69]-[71]
Orders were made until further order that:
a)the children would spend defined time with the Mother;
b)the Father must encourage the children to spend time with the Mother;
c)the Mother must contact ‘Creating Links’ at [omitted] and arrange to attend and complete the first available ‘Parenting Adolescents for Vietnamese Parents’ workshop and attend and complete any further programs offered by that Centre to assist her to meet the children’s needs whilst they are spending time with her;
d)the Mother must contact the [omitted] Women’s Health Centre and arrange to attend upon a female Vietnamese counsellor and continue to attend on that counsellor for the duration and at the frequency recommended by the counsellor to assist her to meet the children’s needs when spending time with her.
e)The Mother was restrained from discussing any of the following with the children:
i)the children’s views as to where they wished to live or why they did not live with her;
ii)any allegation made in the proceedings; or
iii)the proceedings generally.
f)The Father was restrained from engaging the children in any discussion relating to:
i)whether they wished to spend time with the Mother; or
ii)any allegation made in the proceedings or any other matter relating to the proceedings.
The proceedings were adjourned to 26th March 2012 for further mention. On that date, certain issues were raised and the Mother was directed to file an Application in a Case, returnable on 3rd April 2012. The Mother filed her Application in a Case on 30th March 2012, seeking a variation of the Orders made on 16th December 2011, so that she could take the two children out of Australia between 5th and 25th April for the purpose of a holiday in Vietnam and Cambodia.
On 3rd April 2012 I made findings in respect of the Mother’s contravention application, that:
(1)The Respondent Father did on 1 3February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the children [X] born [in] 1997 and [Y] born [in] 2000 to [omitted] McDonald’s in order that the Applicant Mother could spend time with them.
(2)The Respondent Father did on 27 February 2011without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the said children [X] and [Y] to [omitted] McDonald’s in order that the Applicant Mother could spend time with them.
(3)Count 2 alleging a contravention of Order 6.2 made on 1 February 2011 is dismissed.
(4)Count 4 alleging a contravention on an unspecified date or on unspecified dates of Order 13 made on 21 December 2010 is dismissed.[4]
[4] Donovan & Hargrave [2011] FMCAfam 306
This matter remains to be finalised.
The Mother has filed two further Contravention Applications, on 21st May 2012 and 18th June 2012, which have yet to be heard. It is unclear whether the Mother is pressing these Applications.
Also, on 3rd April 2012, I heard an interim Application arising from the Mother’s Application in a Case filed on 30th March 2012. On that same day, I delivered an ex tempore decision[5] permitting the Mother to take the children out of Australia for a holiday in Vietnam and Cambodia between 8th and 25th April 2012. I further ordered that the Registrar deliver the children’s passports to the Mother and that she must return them by 27th April.
[5] Donovan & Hargrave [2011] FMCAfam 410
On 21st May 2012 the proceedings were listed for final hearing on 24th September 2012 and an updated Family Report was ordered.
Orders Sought
The Mother filed an Amended Application in which she sought both parenting and property orders. The property orders are being dealt with separately.
The Mother now seeks the following parenting orders:
1.That the children, namely [X] ([X]) born [in] 1997 and [Y] ([Y]) live with the mother.
2.That the parties have equal shared parental responsibility for the children of the marriage.
3.That each party shall have the day to day care and control of the children when the children are in their respective care.
4.That if the Court finds that the children are to live with the mother, then the father spend time with the children on the following days and times:
4.1each alternate weekend from 5pm Friday until 7.30pm the following Sunday;
4.2for half of each school holiday period, failing agreement for the first half in odd numbered years and the second half in even numbered years.
4.3on Christmas Day from 2pm, until 12 noon Boxing day in even numbered years and from 12 noon on 24 December until 2pm Christmas Day in odd numbered years.
4.4on his birthday and the children’s birthdays for an agreed 4 hour period;
4.5other times are mutually agreed.
5.That in the alternative to Order 1, the children live with the father and spend time with the mother:
5.1every Monday from 5pm until before school Thursday;
5.2each alternate Sunday from 11am – 6pm;
5.3for half of each school holiday period, failing agreement for the first half in odd numbered years and the second half in even numbered years.
5.4on Christmas Day from 2pm, until 12 noon Boxing Day in even numbered years and from 12 noon on 24 December until 29m Christmas Day in odd numbered years.
5.5on her birthday and the children’s birthdays for an agreed 4 hour period;
5.6other times are mutually agreed.
6.That for the purposes of Order 4, the father will collect the children from school or the mother’s residence at the commencement of time and the mother will collect the children from the father’s residence at the conclusion.
7.That for the purposes of Order 5.1, the father will drop the children to the mother’s residence on the Monday evening and will then immediately leave the area and is restrained from collecting [Y] from the mother’s residence or the surrounding area unless expressly requested to do so by the mother.
8.That for the purposes of Order 5.1, the mother will deliver the children to and from school and the father is restrained from collecting [Y] from school unless expressly requested to do so by the mother.
9.That for the purposes of Order 5.1, the father is to use his best endeavours to ensure that his Wife does not collect [Y] from school during this time and if he returns home to find [Y] there he is to deliver [Y] to the mother at her residence.
10.That for the purposes of Order 5.2 – 5.5 the father will deliver the children to the mother’s residence at the commencement of the time and the mother will deliver the children to the father’s residence at the conclusion.
(There is no proposed Order 11)
12.That there is no contravention of these Orders if [X] indicates to his mother in writing by a text message or in a phone call that he does not want to spend time with her in accordance with these Orders.
13.That the father is able to contact the children by telephone and email at any reasonable times and the mother will encourage the children to communicate with their father in this manner.
14.That for the purposes of Order 4.3 and 5.3, school holiday time is deemed to commence from 3pm on the last day of school, until 9am on the first day back at school.
15.That the child[6] will spend Mother’s Day with the mother. If Mother’s Day falls on a contact period of the father, then the father will return the child to the mother by 9am that Sunday and his contact period will be over save for a holiday contact period where the father will collect the child at 6pm.
16.That the child will spend Father’s Day with the father. If Father’s Day falls when the child is in the care of the mother, then the father is to collect the child at 9am and return the child at 6pm that Sunday.
17.That on the child’s birthday, they[7]will spend time with each parent for a period of time to be agreed between the mother and the father.
18.That the child will spend time with the respective parents, step parents and step sister on their birthdays, at times to be agreed between the parties.
19.That the children’s passports continue to be held in the Sydney Registry of the Federal Magistrates Court[8] to be released only upon the joint signatures of the parties or Order of the Court.
20.If illness should prevent the child from travel to the respective parent’s residence, a doctor’s certificate will need to be provided to the other parent within twenty four (24) hours.
21.That should the child suffer any injury or illness which requires treatment at a hospital or by a specialist medical practitioner, psychologist or any health care provider, that the parent in whose care he is, is to notify the other within (2) hours of the need of such treatment.
22.That the parties will keep each other informed of a mobile telephone number, landline and address and will make it available to the other party within 24 hours of a change.
23.That the mother will do all things and sign all documents to enable the father to obtain directly from the children’s school copies of any reports, letters and school bulletins.
24.That the Respondent pay the Applicant’s costs of the Proceedings.
[6] It is not clear which child is being referred to in this and subsequent proposed orders that just refer to “the child”.
[7] sic
[8] Now the Federal Circuit Court
The Father filed a Response on 9th December 2010. He has not filed an Amended Response. In his Response, the father seeks these final orders:
1.That the children, namely [X] ([X]) born [in] 1997 and [Y] ([Y]) born [in] 2000 to live with the father Mr Hargrave.
2.That the parties have shared parental responsibility for the children of the relationship.
3.That each party shall have the day to day care and control of the children when the children are in their respective care.
4.That the mother spend time with the children upon request of the children. The mother is to pick them up and drop them off at [address omitted], except during public and school holidays the times will be mutually agreed.
5.That the mother return the children’s passports to the father immediately.
6.That the mother is able to contact the children by telephone and email at reasonable times.
7.That the mother to stop harassing the children with unnecessary SMS’s and emails at all hours of the night.
8.That the mother is hereby restrained from applying for a passport in the names of the children.
9.That the mother is hereby restrained from removing or attempting to remove the children namely [X] born [in] 1997 and [Y] born [in] 2000 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order b y registering the children on the Watchlist.
10If illness should prevent the children from travel to the respective parent’s residence, a doctor’s certificate will need to be provided to the other parent within twenty four (24) hours.
11.That the father be permitted unrestricted domestic and international travel with the children.
12.That the mother is hereby restrained from changing the schools of the children without the father’s express written consent.
13.(This proposed order is almost a duplicate of the father’s proposed Order 9).
14.That on the children’s birthdays, they will spend time with the mother for a period of time to be agreed between the mother and the father.
15.That on Mother’s Day, the children will spend time with the mother for a period of time to be agreed between the mother sand the father.
16.That the parties will keep each other informed of a mobile telephone number, landline and address and will make it available to the other party within 24 hours of a change.
The Independent Children’s Lawyer submitted an Outline of Case Document on the day of the hearing saying:
The Independent Children’s Lawyer is not in a position to formulate orders for consideration by this Honourable court.
However, at the conclusion of the hearing on 24th September, 2012, the Independent Children’s Lawyer submitted a Minute of Proposed Orders, which said:
1.That the parties continue to have equal shared parental responsibility for the children [X] born on [in] 1997 and [Y] born [in] 2000.
2.That the children live with the father.
3.That the child [X] shall spend time with the mother in accordance with his wishes.
4.That the child [Y] shall spend time with the mother as follows:
a)For a period of two weeks over the December – January school holidays as agreed and failing agreement, from 2 January.
b)From 9am until 6pm on:
i.Mother’s Day,
ii.25 December,
iii.Good Friday,
iv.On [Y]’s birthday from 4pm-8pm ia school day, otherwise from 10am-6pm,
v.On the mother’s birthday from 4pm-8pm if a school day, otherwise from 10am-6pm,
vi.On the middle Sunday of the June-July school holidays and the middle Sunday of the September school holidays from 10am-6pm,
vii.Additional time in accordance with [Y]’s wishes including overnight time.
5.The father shall facilitate the children spending time with the mother whenever they wish to do so.
6. That these orders be explained to the children by their independent children’s lawyer.
7. That these orders operate as an authority for the mother to obtain copies of school reports and any other document ordinarily provided to the parents by the children’s schools.
8.The father shall advise the mother as soon as is practicable in the event of any medical or other emergency relating to either of the children.
9.That these orders shall operate as an authority for the mother to obtain copies of any medical records or other document and also to authorise any treating medical practitioner to consult with the mother.
10.The father shall keep the mother advised of each child’s mobile telephone number and email address and he shall advise the mother of any change to the children’s mobile number[9] or email address within three days of any change.
11.The mother shall have liberal electronic and telephonic communication with the children.
[9] sic
Evidence
The Mother has filed four affidavits since the earlier proceedings, sworn on:
a)21st May 2012;
b)4th June 2012;
c)18th June 2012; and
d)17th September 2012, which also referred to property matters.
The Mother gave oral evidence. Her evidence in her affidavit of 17th September 2012 was that she saw the children only for short times. In particular, [Y] will tell her that he does not want to stay. He has told her that he only wants to see her every Sunday.[10] She was cross-examined by Ms Karagiannis for the Independent Children’s Lawyer. The Father elected not to ask her any questions by way of cross-examination.
[10] Affidavit of Ms Donovan 17.9.2012 at [68]
The Father gave oral evidence and was cross-examined by
Mr Jamieson of counsel, who appeared for the Mother, and by
Ms Karagiannis.
The Family Reports
The original Family Report was prepared by Ms M, a Family Consultant, on 15th November 2011. The contents of the Family Report, and Ms M’s cross-examination, are set out in the earlier decision of Donovan & Hargrave[11] at [32]-[56].
[11] [2011] FMCAfam 1494
The updated Family Report was prepared by Ms M on 10th September 2012 and released to the parties on 18th September.
For the purpose of preparing her Report, Ms M interviewed the following parties on 20th July 2012:
a)the Mother;
b)the Father;
c)Ms L, the Father’s wife; and
d)the two children, both jointly and individually.
In her Report, Ms M noted the two boys continued to live with their father, his wife and her daughter in the house that the Father and his wife have recently purchased. Both boys now attend [C] High School.
Despite the previous parenting orders that have been made, Ms M noted:
It appears that the children, especially [Y], have in fact spent little time with their mother since these orders were made.[12]
[12] Family Report page 3 at paragraph [3]
Ms M reported that, even when interviewing the Mother with the assistance of a Vietnamese interpreter, it was difficult to gain a clear understanding of the Mother’s proposed parenting arrangements for the boys. Ms M gathered that the Mother was no longer proposing that the children should live predominantly with her:
She is now proposing that they spend time with her from Thursday until Sunday each week.[13]
[13] Ibid at [4]
Interestingly, from the Mother’s Amended Application filed just prior to the hearing, on 17th September 2012, it was clear that she had changed this proposal to one where the children live with her and spend alternate weekends with their father.
The Mother reported to the Family Consultant that the children had spent little time with her for many months:
She also said, however, that [X] has been spending time with her, including overnight time, but that [Y] usually “just comes and says hello to me and leaves”[14].
[14] Ibid at [7]
The Mother told Ms M that in the last couple of months she and the Father had stopped “fighting about custody” and [X] had asked her not to go to Court. She also said that she often spoke to [X] about things and has a good relationship with him.
Ms M reported that the Father told her that he was no longer seeking any parenting orders in respect of the two boys because he had “become a man of God”[15] and believed that the parenting dispute did not have to continue.
[15] A claim he was to repeat in his cross-examination
The Father:
…reported that [X] sees his mother when he wants to, but [Y] does not want to see his mother at all. He said that [Y] finds it particularly difficult that she comes to his school and waits to see him there. He said that [Y] has told him that he is teased about this.[16]
[16] Family Report at [14]
When the children were interviewed by the Family Consultant, it appeared that little had changed since the children were interviewed for the earlier report.
The children expressed the same views as before, [X] saying that he was happy to spend time with his mother but [Y] expressing a reluctance to spend time, especially overnight time, with her.
The Family Consultant’s evaluation in the Family Report presents a gloomy picture. There is naught for the Mother’s comfort in Ms M’s evaluation:
Neither parent seems capable of putting aside their conflict with each other and focusing on what is best for the children.
Ms Donovan continues to seek parenting orders which seem unrealistic given the situation and the history of what has occurred when previous orders have been made that the children spend time with her. Ms Donovan seems to take the view that Orders should be stronger and more enforceable and that this would solve the problem. She does not seem able to consider what effect this would have on the children, particularly [Y].
Mr Hargrave does seem to have complied with the current orders but does not seem to have done so in a way that might assist the situation, as he has adhered to the minutiae of the orders but does not seem to have worked towards the intent of the orders, that is to facilitate [X]’s and [Y]’s relationships with their mother.[17]
[17] Ibid at [26]
Ms M made the following recommendations in the Family Report:
a)That the Father have sole parental responsibility for [X] and [Y] but provide the Mother with copies of all school reports, school photographs etc and inform her of any medical issues that might arise for either or both of the boys;
b)That [X] and [Y] spend time with their mother according to their wishes; and
c)That [X] and [Y] spend at least one two-week holiday period a year with their mother.
Ms M’s evidence in cross-examination was that even though the Mother had attended a Triple P parenting program, nothing appeared to have changed substantially, including the Mother’s approach to the children. [X] said he would see his mother when he wanted to, but [Y] was reluctant to see her.
Ms M said that there was a bond between the children. It was in the children’s interest to have a good relationship with both parents.
The Court’s ability to change the Father’s attitude appears to be quite limited. The Father does not see the Mother as having any need to have a significant role in the children’s lives. From the beginning, it was the Father’s view that basically it was up to him. He had established a family and the Mother was irrelevant.
Ms M said that there have been ongoing problems with the children spending time with their mother straight from school. She did not think that the children living with their mother was a sensible option. [Y] has left his mother’s place of his own volition on a number of occasions. The Family consultant doubted the Mother’s ability to deal with the situation.
Ms M’s evidence in the Family Report was unshaken in cross-examination.
Submissions
Ms Karagiannis submitted on behalf of the Independent Children’s Lawyer that this was “a truly tragic case”. Whilst the first Family Report contained at paragraph 56 some hope that the relationship between the children and their mother would be repaired. The current evidence of the Family Consultant was that [X] has maintained a relationship with his mother that has survived, but [Y] is even more aligned with his father than before.
The Independent Children’s Lawyer was seeking an order that the parties should have equal shared parental responsibility. There was no basis for the Mother to be shut out in any way from the children’s lives.
Ms Karagiannis said that there would be no application for costs on behalf of the Independent Children’s Lawyer.
The Father submitted that he had said two years ago that it was not he who had not facilitated the children seeing their mother, but rather the Mother herself. He said that offers of time with the children have been refused and for months the Mother had never turned up to see the children on a Tuesday. There have been occasions when he has taken the children to the Mother’s house on Mother’s Day or on a Sunday she has not been home.
Realistically, he said, it is the children’s wishes that they should not stay overnight with their mother. He said that they even cry and jump out of the Mother’s car.
Mr Jamieson of counsel, for the Mother, submitted that if the Court was contemplating the orders proposed by the Independent Children’s Lawyer the Court would be led into appealable error because the proposed orders do not comply with s.60CC of the Family Law Act. He said that the proposed orders did not provide for a meaningful relationship between the children and their mother, a loving mother who had not been given the opportunity to expand upon the relationship with the children.
It was submitted that the child [Y] was so alienated from his mother that the Court should intervene and place the children with her. There was emotional abuse of the children by their father.
Mr Jamieson further submitted that when considering the wishes of the children, it is clear that [X] goes to stay with his mother on Tuesdays after he goes to the gym. What is troubling is that the younger boy is primed to leave.
The relationship between the parents was also described as “troubling”. The Father wanted to take the Mother out of the picture completely. Further, it was submitted that the Father did not show a willingness to facilitate and encourage a close and continuing relationship between the children and their mother. He had done nothing to encourage the children to spend time with her.
There was no evidence to suggest that living with the Mother would have any deterrent effect on the children spending time or having a meaningful relationship with their father.
Mr Jamieson submitted that the orders sought by the Independent Children’s Lawyer did not favour the Mother. She has adjusted her attitude to parenting and has done the course recommended by the Family Consultant and the Independent Children’s Lawyer. The Father, on the other hand, had done nothing.
Counsel for the Mother also submitted that the Court should deal with the Father for the contravention of the earlier parenting orders which had been found in the decision of 3rd April 2012[18].
[18] Donovan & Hargrave [2012] FMCAfam 306
Mr Jamieson warned that if the Court were to make the orders suggested by the Independent Children’s Lawyer, it would lead to parenting issues being back before the Court in the near future.
The Law to be applied in Parenting Applications
Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child or children as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2), (2A) and (3) of s.60CC of the Act.
Subsection 60CC(2A) became operative on 7th June 2012 and provides that, in applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b), which requires the Court to consider:
the need to protect the child from psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
Also, when making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.
The presumption does not apply in case of abuse or family violence (see s.61DA(2)) and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child (s.61DA(4)).
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) to consider whether it would be both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an equal time order, it must then, under s.65DAA(2), consider whether it would be both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
Substantial and significant time is defined by s.65DAA(3) of the Act.
In determining whether equal time or substantial and significant time is reasonably practicable, the Court is required to have regard to the matters contained in s.65DAA(5), which include such things as how far apart the child or children’s parents live from each other.
All of the matters in ss.60CA, 60CC, 61DA and 65DAA have been considered, insofar as they are relevant.
Conclusions
In this case I have considered the evidence of the parties and of the Family Consultant. The parties have each proposed orders to be made, as has the Independent Children’s Lawyer. The Court is not bound by the proposals of the parties, and in rejecting orders proposed by one party it is not obliged to make orders as proposed by the opposing party, or by the Independent Children’s Lawyer. The Court must make the orders that it considers will best meet the best interests of the children concerned.
Each parent has proposed that the children should live with them and spend time with the other parent. The Mother proposes an arrangement whereby the children spend alternate weekends and half the school holidays with the Father. The Father’s proposal is that the two boys spend time with their mother as and when they request.
In my view, for the reasons that will be set out, neither proposal entirely meets the requirement that the best interests of the children must be the paramount consideration. The orders proposed by the Independent Children’s Lawyer come closest, in my view, to meeting that requirement, but even they will not be adopted in their entirety.
The Mother’s proposal that the children should live with her is unrealistic and unworkable. The children do not comply with the existing orders, with or without the tacit connivance of their father. The likelihood that they would comply with an order requiring them to live with their mother full-time is virtually nil.
Against this, the Father’s proposal that both children should only see their mother as and when they please does not appear to be in [Y]’s best interests, bearing in mind his age and what appears to be his alienation from his mother and his alignment with his father
From the evidence, it appears that [X] has worked out his own arrangements, which do involve his spending time with his mother, including overnight time. At the age of 16, as [X] now is, [X] is going to continue on his own path and neither parent can expect a Court order to change that situation. In this regard, the Father appears to have a more realistic view than the Mother.
In making this decision, I have given considerable weight to the views of the Family Consultant expressed in both Family Reports and her oral evidence to the Court. It should not be thought that the Court will automatically adopt all of the recommendations in a Family Report, and it will be seen that I have not done so, and I will set out the reasons for departing from a recommendation in the Family Report. However, I am following the general tenor of the Family Report because I consider it to be a reliable guide to the matters which are in the best interests of these two children.
It is not the case that the Family Report will necessarily will be accepted in its entirety, nor is it the case that the Family Consultant who decides the matter. The case is decided by the Judge, based on the entirety of the evidence. As the Full Court of the Family Court (Evatt CJ, Asche SJ and Hogan J) held in a well-known decision, In the Marriage of Hall[19] at 615, 78,819:
(a)There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor[20] is usurping the role of the court or that the judge is abdicating his responsibilities…
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination or cross examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
[19] (1979) 5 Fam LR 609; FLC 90-713
[20] Counsellors are now called “Family Consultants”
One area where I propose to depart from the recommendations of the Family Consultant is in the area of parental responsibility. The Family Consultant recommended that the Father should have sole parental responsibility for the boys, but the Independent Children’s Lawyer submits that that the parties should retain equal shared parental responsibility for the boys. The submission, which I accept, is that there is no basis for the Mother to be shut out in any way from the children’s lives.
Subsection 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child (or children, in this case) for the parents to have equal shared parental responsibility for the child or children. There are no reasonable grounds to believe that either parent has engaged in abuse of the children or family violence. There is no evidence before the Court that satisfies me that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
Accordingly, I will order that the parties are to have equal shared parental responsibility for the two boys.
In my view, there is a benefit to these children in having a meaningful relationship with both parents. They live with their father. [X] has clearly formed a view that he wishes to continue a relationship with his mother, although [Y] has taken a more negative approach.
Although counsel for the Mother claims that the Father has emotionally abused the children by not encouraging them to spend more time with her, or spend time with her at all, I am not satisfied that this claim is entirely justified by the evidence.
The children are not being exposed to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is a case where the views of the children, and the weight that the Court should give to those views, is particularly important. The Court may inform itself by having regard to a Family Report given to the Court under subsection 62G(2) or by making an order under section 68L that the children’s interests should be separately represented by a lawyer (s.60CD). The Court has the benefit of both a Family Report and the submissions of the Independent Children’s Lawyer.
The Family Report describes the children’s views in this way:
[X] indicated that he is happy to spend time with his mother but wants to be able to do this when he wishes to. Although he spoke about his mother behaving in ways which he does not like, such as nagging, he said that he realises that this is “what she is like” and he loves her and wants to continue to see her. He said, however, that he definitely does not want to live with her.
22.[X] said that [Y] finds it very difficult when their mother “nags and cries a lot” when they spend time with her. [Y] said that he is very embarrassed by his mother when she comes to the school and he has asked her not to do this but she does not taken any notice of what she says. [Y] said that he does not want to spend time with her and especially does not want to spend overnight time with her.[21]
[21] Family Report at [21]-[22]
At the time they spoke to the Family Consultant, [X] was aged 15 years and 3 months, and [Y] was five weeks short of turning twelve. I am of the view that the boys’ views should be given weight, particularly in the case of [X].
The children appear to have good relationship with their father and, apparently, with their stepmother. Their relationship with their mother is strained, especially in [Y]’s case. [X] clearly loves his mother and wants to spend time with her, but on his terms. He appears to be resigned to her behaviour towards him and his brother, although [Y] has greater difficulty in tolerating her “nagging and crying”, which apparently makes him embarrassed and uncomfortable.
The Father is participating in making decisions about major long-term issues in relation to the children, to the exclusion of the Mother. The Father spends time with the children and communicates with them. They live with him.
The Mother complained that the father did not tell her about the children’s parent teacher interviews. [X] told her, so she went to [X]’s interview.[22]
[22] Affidavit of Ms Donovan 17.9.2012 at [132]
The Mother also deposed that she went to [Y]’s interview:
His step mother was also there. I heard her say as I approached the table that she was [Y]’s mother. I sat down and said I was [Y]’s mother. She then left the table and went outside and took [X] home.[23]
[23] Affidavit of Ms Donovan 17.9.2012 at [133]
To avoid unfortunate incidents at parent teacher interviews, it would be open to the Mother to arrange separate interviews with the children’s teachers. She has equal shared parental responsibility and should be informed about what is happening to the children at their school.
The Mother wants to spend more time with the children and is frustrated that this is being thwarted, apparently by the Father. However, [X] does spend time with her, including overnight time, which his father does not apparently frustrate. [X] appears to be able to have a relationship with his mother on his terms, although this is not sufficient to satisfy the Mother.
[Y] is more aligned with his father and chooses not to spend much time with his mother. He does see her when delivered by the Father but then he goes. This does not appear to be entirely the fault of the Father because [Y] complains about her behaviour towards him.
The Court must consider the likely effect of any changes in the children’s circumstances, including the effect of any separation from either parent or any other child. The Mother seeks orders that the children’s circumstances should change by a Court Order forcing them to live with her. It would not work; they would not stay.
There is no real practical difficulty or expense in the Mother spending time with or communicating with the children. She has changed her address so as to be nearer to where the children now live. The difficulty stems from the children’s reluctance to spend a great deal of time with her.
The Mother deposes in her affidavit of 17th September 2012:
134.I have not been able to see the children in accordance with the Orders of 16 December 2011, 3 April 2012 and 18 June 2012. Since the commencement of school last school holidays I did not spend any time with either child for 2 months. I have only spent a few overnights, mostly with [X] and to the best of my recollection I have only spent one overnight with [Y] since we all went to Vietnam in the April school holidays.
135.Every Tuesday I continue to go tom the children’s school to try to collect them [Y] does not come with me and I just talk with him and give him (some) food and a hug and a kiss. [X] comes most times after he has been to the gym. He enjoys going to the temple with me called [omitted]. I enjoy spending time with him there.[24]
[24] Affidavit of Ms Donovan 17.9.2012 at [134]-[135]
The Mother did spend a fortnight on holiday in Vietnam and Cambodia with the children in April 2012. The father was not present. The Mother had the opportunity to spend direct time with the children without the Father’s influence, which should have been an opportunity for her to improve the relationship with them. Despite this, [Y] is still reluctant to spend time with his mother.
The parents have the ability to provide for the children’s physical and intellectual needs. It is questionable that either party has the capacity to deal adequately with the children’s emotional needs.
[X] is a boy now aged 16 who is apparently at an age-appropriate stage of maturity. [Y] is a boy who is nearly thirteen years of age and, presumably also at an age-appropriate stage of maturity. They are both of Vietnamese background but they have spent most of their lives in Australia.
The parties have different attitudes to the children and to the responsibilities of parenthood. The father seems to place little value on maintaining anything more than a nominal relationship with their natural mother. The Mother appears to have difficulty relating to two boys who have grown up in an Australian urban society and appears to believe that the all difficulties will be solved if the Court would only “make stronger orders”[25], presumably to make the children live with her and spend more time with her.
[25] Family Report at [7]
Sadly, the Mother’s views are not realistic in Australia in 2013.
There are no issues of family violence and no family violence orders, nor is there any evidence that there ever have been.
The Court must consider the requirement in s.60CC(3)(l):
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.
An order requiring the children to live with the Mother would in my view be most likely to lead to the institution of further proceedings in respect of the children. Neither child would be at all willing to comply with that order, on the evidence before the Court.
Regrettably for the Mother, the best interests of the children dictate that they should continue to live with their father.
Even though an order has been made that the parents should retain equal shared parental responsibility for the children, this is not a case where it is either in the children’s best interests or reasonably practicable for the children to spend equal time with each parent.
The Court must consider the requirements of s.65DAA(5) in determining whether it is reasonably practicable for the children to spend equal time, or substantial and significant time, with each parent. Although the mother now lives a “30 minute drive from the children’s school and Mr Hargrave’s[26] residence”, I am not satisfied as to the parties’ current and future capacity to implement an arrangement for the children to spend equal time or substantial and significant time with each of them.
[26] i.e. the father
Again, I am not satisfied as to the parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing either an equal time arrangement or an arrangement that the children spend substantial and significant time with the Mother.
Another relevant matter is that neither child wishes to participate in an arrangement where they spend equal time with each parent. Neither child has expressed a wish to spend substantial and significant time with their mother. [X] is spending time with his mother as he wishes, and it is clearly less than substantial and significant as defined in subsection 65DAA(3). [Y] is reluctant to spend much time with his mother at all, certainly not overnight time.
[X] has worked out an arrangement to see his mother when it suits him, despite certain aspects of her behaviour that he finds difficult. This does include overnight time. He expressed no complaint about going away to Vietnam for a holiday with his mother and brother. At the age of 16 years, this arrangement suits [X] and he is likely to react against an order forcing him to spend more time with his mother.
I propose to order that the status quo should remain so far as [X] is concerned. He is to spend time with his mother in accordance with his wishes.
[Y] is in a different situation. He is about three years younger than his brother, and should not be put in a position where he decides whether or not he spends time with his mother, and for how long. The orders proposed by the Independent Children’s Lawyer go a long way towards meeting a requirement for him to spend time with his mother, which should not be too onerous on him.
However, I am not prepared to follow the suggestion of the Independent Children’s Lawyer that [Y] should spend time with his mother “for a period of two weeks over the December-January school holidays as agreed and failing agreement from 2 January”. I have serious doubts about the parties’ ability to agree on such matters. I propose to make an order prescribing 2nd January to 16th January as the holiday period, so that there will be no doubt.
If [X] wishes to go on a holiday with his mother and brother at that time, these Orders will allow him to do so.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 26 April 2013
Key Legal Topics
Areas of Law
-
Family Law
0
4
2