Donovan and Hargrave
[2011] FMCAfam 1494
•16 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONOVAN & HARGRAVE | [2011] FMCAfam 1494 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – two boys aged 14 years and 11 years living with father – whether children alienated from the mother – children’s wishes – where children express a wish to remain living with their father. |
| Family Law Act 1975, ss.60CA, 60CC, 60CD, 61DA, 61DB, 62G, 65DAA, 68L |
| Donovan & Hargrave [2011] FMCAfam 1468 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS DONOVAN |
| Respondent: | MR HARGRAVE |
| File Number: | PAC 1122 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 13 and 14 December 2011 |
| Date of Last Submission: | 14 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| Respondent: | In person |
| Solicitor for the Independent Children’s Lawyer: | Ms Karagiannis |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
The children [X] born [in] 1997 and [Y] born [in] 2000 are to spend time with the Applicant Mother as follows:
(a)From the conclusion of school on Friday 16 December 2011 until 6:00pm on Friday 23 December 2011;
(b)From 2:00pm to 6:00pm on Christmas Day 2011;
(c)From 11:00am to 6:00pm each alternate Sunday commencing on Sunday 8 January 2012;
(d)From 9:00am on Monday 16 January until 6:00pm on Sunday 22 January 2012; and
(e)From the conclusion of school each Monday until the commencement of school on Wednesday commencing on Monday 6 February 2012.
For the purpose of Order 1(a) the Mother is to collect the children from their school at the commencement of the time the children spend with her and return the children to the Father’s residence at the conclusion of the time.
For the purposes of Orders (1)(b), (1)(c) and (1)(d), the Mother is to collect the children from the Father’s residence at the commencement of the time the children spend with her and the Father is to collect the children from the Mother’s residence at the conclusion of the time.
For the purposes of Order (1)(e) the Mother is to collect the children from school at the commencement of the time and return the children to school at the conclusion of the time.
In the event that the Mother is not able to collect the children at the time specified in these Orders she must inform the Father by telephone at least one (1) hour beforehand.
The Father must ensure that whenever the children are to spend time with the Mother in accordance with these orders they are to attend school and take with them any clothing and any other possessions that they may require during the time they will be spending with the Mother.
If the children are not at school on a day when they are to be collected by the mother in accordance with these Orders, the Father must advise the Mother by 10:00am of the time and place when they are available for collection.
The Father is restrained from attending at the children’s schools at any time after 2:30pm on any day when the children are due to be collected by the Mother in accordance with these Orders.
The Father must encourage the children [X] and [Y] to spend time with the Mother in accordance with these Orders.
Within seven (7) days of these Orders, the Mother must contact ‘Creating Links’ at [B] 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.
Within seven (7) days of these Orders 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 and continue to attend on her for the duration and at the frequency recommended by the counsellor to assist her to meet the children’s needs when they are spending time with her.
The Mother is hereby restrained from discussing any of the following issues with the children:
(a)The children’s views as to where they wish to live or why they do not wish to live with her;
(b)Any allegation made in these proceedings; or
(c)These proceedings generally.
The Father is hereby restrained from engaging the children in any discussion relating to the following issues:
(a)Whether they wish to spend time with the mother; or
(b)Any allegation made in these proceedings or any other matter relating to these proceedings.
The Independent Children’s Lawyer is granted liberty to re-list this matter in the event of non-compliance on seven (7) days’ notice.
The Independent Children’s Lawyer is granted liberty to provide ‘Creating Links’ at [B] and any other service that the Mother may approach for counselling or other assistance with a copy of the Family Report.
The Independent Children’s Lawyer is granted liberty to provide the children’s schools with a copy of these Orders.
The Independent Children’s Lawyer is to explain these Orders to the children within three (3) days of the date of these Orders and the Father shall facilitate the children’s attendance upon the Independent Children’s Lawyer for this purpose.
The Application is adjourned to Monday 26 March 2012 for further mention.
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 MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 1122 of 2009
| MS DONOVAN |
Applicant
And
| MR HARGRAVE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of two children, [X] and [Y], for parenting Orders. The boys are aged 14 years and 8 months and 11 years and 7 months respectively.
The two boys currently live the Father and his new wife.
The Mother seeks orders that the children should live with her and spend time with the Father on a regular basis.
The Father opposes the Mother’s application. He seeks orders that the children should continue to live with him and spend time with their mother only on their request.
Issues
The Father claims that the children do not want to spend time with their mother, even though he has tried to persuade them to do so. On the other hand, the Mother is of the view that the children have been influenced by their father into rejecting her.
Areas of Agreement
The parties agree that they should have equal shared parental responsibility for the children.
Background
The parties were both born in Vietnam. They married in Vietnam [in] 1993.
There are two children of the marriage:
a)[X], born [in] 1997; and
b)[Y], born [in] 2000.
The Mother deposes in her originating affidavit that the parties physically separated when the Father left the former matrimonial home on 2nd April 2010, however, they were separated under the one roof for about a year and a half before that.
The Father has since remarried.
The Mother states that the children originally remained living with her in the former matrimonial home and the Father would spend time with them on alternate weekends. The children spent two weeks with their father during the July school holidays. They remained living with their mother until 23rd July 2010.
The Mother deposes that the Father collected the children from school on 23rd July 2010 and they have lived with him ever since. The Father has deposed that this arrangement was agreed between the parties because of the Mother’s extensive working hours.[1] The Mother is a [occupation omitted]. The Father is a [occupation omitted].
[1] Affidavit of Mr Hargrave 8.12.2010 at paragraph [14]
The parties attended mediation at the Family Relationship Centre at [B] in order to reach an agreement about spending time with the children but the Mother deposes that the Father would not abide by the agreement.
The Mother commenced proceedings for parenting orders in this Court on 3rd November 2010. The application came before the Court for the first time on 12th November 2010. On that date, the Court made interim parenting orders, providing that the Mother was to spend time with the children from 4:00pm to 7:00pm every Monday. The parties were directed to attend a Child Dispute Conference with a Family Consultant.
The parties attended the Child Dispute Conference on 15th November 2010. No agreement was reached.
An interim hearing took place on 17th December 2010.
On 21st December 2010 the Court made interim orders[2] providing that:
[2] Donovan & Hargrave [2011] FMCAfam 1468
·The children were to live with the Father;
·The parties were to have equal shared parental responsibility for the children;
·The children’s interests were to be independently represented by a lawyer under the provisions of s.68L of the Family Law Act;
·The children were to spend time with the Mother on Monday evenings after school, from 9:00am to 5:00pm each Sunday during the school term;
·From 9:00am to 5:00pm each Sunday and Monday during the school holidays;
·On Christmas Day;
·On Boxing Day;
·On the children’s birthdays; and
·On Mother’s Day.
The Mother’s application was set down for final hearing and a Family Report was ordered for the purposes of the hearing.
With the aid of the Independent Children’s Lawyer, Ms Davitt, the parties entered into Interim Consent Orders on 1st February 2011, varying the Orders made on 21st December 2010.
The Mother filed a Contravention Application on 3rd March 2011, claiming that the Father had contravened those Orders on 13th, 20th and 27th February 2011, and on an unspecified date but continuing. The Mother relied on an affidavit sworn on 28th February 2011 in support of the Contravention Application. She has sworn further affidavits on 28th March, 14th July and 29th November 2011 in which she claims that the Father has continued to breach the Orders. She also relies on an affidavit sworn on 6th July 2011 by her solicitor, Ms Jamieson.
The Father stated that the children would not agree to spend time with their mother on the occasions when she complained that he had breached the orders and thus he had a reasonable excuse.
A separate decision will be delivered in respect of the contravention proceedings.
Evidence
The Family Consultant who prepared the Family Report, Ms M, gave oral evidence and was cross examined by Ms Karagiannis, who appeared for the Independent Children’s Lawyer, by the Father, who appeared for himself, and by Mr Jamieson, who appeared for the Mother.
The Mother gave oral evidence with the aid of an interpreter in the Vietnamese language. In cross-examination by the Father, she said that she had an agreement with the older boy, [X], that he would work for her on Sundays. The arrangement was that she would collect him from him and drive him to work. However, he did not go with her on any Sundays, saying to her that he could not come.
The Mother said that although [X] said he was able to go on holiday with her in April 2011, when she went to collect the children at the pick up point, the McDonald’s at [B], the Father told her by SMS that the children were refusing to go on holiday with her.
The Mother said that she sent SMS messages to the Father about spending time with the children she would receive a reply that they would not agree to spend time with her. She believes that when they do not go with her it is because their father will not let them. When the children do spend time with her she takes them home. She plays with them and asks them about their studies.
The Mother tendered in evidence a film on her mobile phone showing the younger child [Y] dancing exuberantly at the Mother’s house on one occasions when he was with her.
The Father gave oral evidence. He said that he had complied with the orders that the children should spend time with their mother. However, the children have complained to him that when they were with their mother all they did was drive around in the Mother’s car. There were occasions on some Mondays when the Mother did not even turn up to collect the children to spend time with them.
The Father said that the Mother was in the habit of fabricating evidence.
He said that he had tried to facilitate a positive relationship between the children and their mother. He said he had tried to call and beg her to come to an agreement and stop saying that he was stopping her from seeing the children when she does not always turn up, but the response he gets is always “Talk to my lawyer”. However, when he does contact the Mother’s lawyers he receives an email saying that they would not make any arrangements unless they complied with current Court orders.
The Father said that the children must see their mother, no matter what she does, because she is their mother. He said he tells the children “You have to go”, because they have refused to go.
The Family Report
The Court has had the benefit of a Family Report prepared by a Family Consultant, Ms M 15th November 2011. The Report was released to the parties on 1st December 2011.
For the purpose of preparing her Report, Ms M interviewed:
a)the Mother
b)the Father
c)the Father’s wife, Ms L; and
d)the two children, both separately and together.
The Family Consultant observed the boys interacting with their mother, both separately and together. She also observed the boys with their father and, later, with their father together with his wife and her daughters.
The Mother was reported as saying that the children should live with her “even though she knows that both [X] and [Y] have said they do not want to live with her and wish to continue living with their father”. [3] The Mother said that the Father had “brainwashed” the children into saying that they did not want to live with her.
[3] Family Report page 6 at paragraph [8]
The Mother admitted to having hit the children in the past, although she does not do so now. She told the Family Consultant that the Father “spoils” the children and gives them more freedom than she does.
The Mother said that she had attended a parenting course at [omitted] where she had learned that it was important for the children that she and the Father stopped arguing and improved their communication.
The Father told the Family Consultant that the Mother had been very demanding and he realised that he was afraid of her. Further:
Mr Hargrave said that after he left the family home, Ms Donovan had been working a great deal and neglecting the children. He said that he took the children into his care with her permission…[4]
[4] Family Report page 10 at [18]
The Father said that his new wife assisted him with the care of the children but denied that he was trying to replace his new wife in the children’s lives in the place of their mother.
He also said that the Mother had at times not seen the children. He told the Family Consultant at a second interview that the children did not want to see their mother at all.[5]
[5] Ibid page 11 at [21]
The Father’s wife told the Family Consultant that she gets on well with the children. She has had little contact with their mother.
The older boy, [X], told the Family Consultant that he loves her and would like to spend time with her because he misses her. However, he said that she “nags” him and is annoying when she does not get her own way and “will not accept the situation”.[6]
[6] Ibid page 14 at [31]
[X] made it clear that he did not want to live with his mother. He said about his younger brother:
According to [X], [Y] does not want to see their mother “at all”. [X] said that [Y] will not spend time with his mother unless he ([X]) is with him.[7]
[7] Ibid page 15 at [34]
[Y], when interviewed, confirmed what his brother had said:
[Y] initially said that there are some good things about being with his mother but when asked what these were, he said his mother gives him and his brother “food and water”. He said that he is a little bit upset about having to go to his mother’s place but he goes because “[X] makes me”.[8]
[8] Ibid at [35]
[Y] went on to tell the Family Consultant that he was unable to remember anything nice about his mother and that if [X] did not go to see her, he would not go.
Nevertheless, when the children were observed with their mother they interacted with her without hesitation. [X] appeared to be relaxed with her and seemed comfortable when his mother was physically affectionate towards him.
[Y], whilst at first reserved, soon relaxed and appeared to enjoy his time with his mother.
The Family Consultant stated that the Mother interacted with the boys in an age-appropriate way.
When, the children were observed with their father, their play was “a little louder and more boisterous” and they cleared enjoyed their interaction with him.
In her evaluation, Ms M noted the major issues as being:
a)The children’s relationship with their mother; and
b)Whether their father is willing to facilitate a positive relationship between the children and their mother.
On the one hand, the boys, especially [Y], appeared to be aligned with their father against their mother. [Y] at times appeared to be becoming alienated from her. On the other hand:
…when the children were observed with their mother it appeared that they enjoy being with her and have a great deal of affection for her.[9]
[9] Family Report page 17 at [43]
The Father was observed to have an “extremely negative” view of the Mother and “does not appear to believe that she has anything positive to offer the children”.[10] He is said by the Family Consultant to feel that the children should be incorporated into the new family that he has created with his new wife “and sees little place for the children’s mother in this new arrangement”.[11] The Mother believes that the Father is trying to shut her out of the children’s lives.
[10] Ibid page 18 at [45]
[11] Ibid page 19 at [48]
However, Ms M expressed the view that it is in the children’s best interests, both in the long and short term, for their relationship with their mother to be repaired “and for this to occur they need to spend significant time with her”.[12]
[12] Family Report page 20 at [50]
The Family Consultant recommended that:
a)the children should spend time with their mother for two consecutive mid-week nights from the close of school on the first day until the commencement of school on the morning of the second night; and
b)the Mother should be referred to a Vietnamese-speaking counsellor and attend a parenting education course geared towards the parenting of adolescents.
Ms M maintained her position in cross-examination that the Father was not encouraging the relationship between the Mother and the children. She also confirmed her view that the Mother had a more rigid approach to parenting than the Father, which appears to have contributed to the boys’ view that they do not wish to live with her.
Whilst [X] is of an age where he is likely to maintain contact with his mother, he has made it clear that he does not wish to live with her. The children do have a relationship with their mother but it would be very difficult for the Mother to meet their needs if the children were to live with her. Ms M said it would not be a good thing for the children to be separated. If they were ordered to live with their mother she thought it likely they would move back with their father.
Submissions
Ms Karagiannis tendered a minute of orders proposed by the Independent Children’s Lawyer. She submitted that the Orders proposed by the parties did not appear to advance the children’s interests. Significantly, Ms Karagiannis sought that the orders made should be interim orders and that the proceedings be adjourned to a date in March to allow time for the Mother to follow the Family Consultant’s recommendations.
Ms Karagiannis submitted that it was appropriate for the boys to have a relationship with their mother. Any order leaving it up to the children to decide when they would spend time with their mother “would be a disaster”.
Counsel for the Mother, Mr Jamieson, told the Court that he did not wish to argue against the Court making interim orders but would still seek final orders at a later date. He submitted that the contravention by the Father of the earlier orders had been made out. The evidence was overwhelming that the Father has induced negative thoughts in the children about their mother. He was critical of the failure of the Father to call evidence from his new wife in support of his case and submitted that this was a case where a Jones v Dunkel[13] inference could be drawn.
[13] (1959) 101 CLR 298
However, a separate decision will be issued in respect of the contravention proceedings.
The Father submitted that he positively encourages the children to spend time with their mother. He is making an effort to make them go and see her and he always has done. However, the Mother does not turn up at the arranged time or, when she does, she nags the boys so that there is no positive time spent with her.
The Relevant Law
The Family Law Act makes it clear that when a Court is deciding whether to make a particular parenting order the Court must regard the best interests of the children as the paramount consideration (s.60CA).
The Court determines what is in children’s best wishes by considering the matters set out in subsections 60CC(2) and 60CC(3). One of the matters for consideration, and an important one in this case, is the views expressed by the children (s.60CC(3)(a)).
The Court informs itself of the views expressed by the children by:
a)having regard to anything contained in a Family Report under subsection 62G(2); or
b)by making an order under s.68L for the children’s interests in the proceedings to be independently represented by a lawyer (see s.60D).
The Court has done both of those things in this case.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and may be rebutted by evidence that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them (s.61DA(4)).
When the Court is making an interim order the presumption applies unless it would not be appropriate in the circumstances for the presumption to be applied (s.61DA(3)). When the Court makes a final parenting order, it is required by s.61DB to disregard the allocation of parental responsibility made in the interim order.
Where a parenting order provides that the children’s parents are to have equal shared parental responsibility, the Court is required by s.65DAA to consider whether it is in the children’s best interests and reasonably practicable for the Court to order that the children should spend equal time with each parent or, if not, to order that the children should spend substantial and significant time with each parent.
Conclusions
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.
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 to allow her to attend a workshop for Vietnamese parents of adolescent children.
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.
There is currently an order until further order that the parties have equal shared parental responsibility for the children. It is not appropriate to change this situation on an interim basis, but it will be considered in some depth when final orders are made. The Family Consultant has stated that:
Mr Hargrave has in the past acted as though he had sole parental responsibility for the children and it seems that he is likely to act in this manner irrespective of what Orders are made in relation to parental responsibility. Although it would be preferable if the parents were to share parental responsibility for [X] and [Y] this does not seem to be a feasible option. [14]
[14] Family Report pages 21-22 at [53]
The best interests of the children remain the paramount consideration. The Family Consultant has made it clear in the Family Report that there is a benefit to the children, both in the short term and in the long term, of having a meaningful relationship with their mother as well as their father.
There are no issues of abuse, neglect or family violence at present, although the Mother has admitted hitting the children to discipline them in the past. An interim order was made on 21st December 2010 that neither party was to use any physical discipline on the children. This should remain in force over the intervening period until the matter comes back to Court.
The views expressed by the children are very relevant to this matter. Subsection 60CC(3) at paragraph (a) requires the Court to consider their views and any factors such as the children’s maturity and level of understanding relevant to the weight to be given to their views.
Here, the Court has the benefit both of a Family Report and the submissions of the Independent Children’s Lawyer. The children have an affectionate relationship with their mother, notwithstanding her rigid parenting style and her apparent lack of insight into the effect that this has on them, but they are firm in their wish to live with their father and not with her.
The boys are of an age where their views will be given significant weight. [X] is aged 14 and [Y] is aged 11. They have expressed consistent and clear opinions on this subject and the Family Consultant has expressed the opinion that if orders were to be made requiring the boys to live with their mother, they would not comply.
The boys have a loving relationship with their father and clearly enjoy his company. They retain an affectionate relationship with their mother and appeared to the Family Consultant to enjoy spending time with her, but they do not wish to live with her. They appear to have a positive relationship with their stepmother. The boys have a good relationship with each other and the Family Consultant advises against separating them.
The Father’s dismissive attitude to the Mother and his belief that she has nothing to offer the boys indicates an unwillingness on his part to facilitate and encourage a close and continuing relationship between the boys and their mother. On the other hand, the Mother does not appear to display this view about the boys’ relationship with their father.
The likely effect of a change in the children’s circumstances, by ordering them to live with their mother instead of their father, is that they would not accept the situation and would wish to return to the care of their father. As they have good relationship with each other, an order separating them would be likely to cause them distress.
The practicality difficulty of the children spending time with their mother does not arise so much from the location of the residences of the parents, who are about half an hour’s drive from each other, but from the Father’s negative attitude towards the Mother. The Father has acted in a high-handed manner in the past and there is doubt that he will take an active role in facilitating the children spending time with their mother.
Each parent appears to have the capacity to provide for the physical and intellectual needs of the children. For different reasons, the capacity of the parents to meet the children’s emotional needs is problematic. The Father’s negative view of the Mother does not assist the children’s relationship with her. The Mother’s lack of insight into the negative effect of her parenting style on the children and her reporting nagging of them about whether they wish to live with her will have the effect of making interaction between them difficult.
These two boys are adolescents with a Vietnamese background. The Mother’s attitude to parenting appears to be a conservative attitude which apparently dates back to her own background in Vietnam. The children live in modern Australian society and have not responded well to their mother’s parenting.
The Father’s inability or unwillingness to acknowledge the importance of the children’s relationship with their mother does not show his attitude to the responsibilities of parenthood in a good light.
There are no family violence orders in place.
Whilst this is a final hearing, I accept the submission of the Independent Children’s Lawyer that interim orders should be made at this stage, in line with the recommendations contained in the Family Report.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 January 2012
2
1