Fagundes and Fagundes (No.4)
[2011] FMCAfam 1542
•4 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAGUNDES & FAGUNDES (No.4) | [2011] FMCAfam 1542 |
| FAMILY LAW – Whether siblings be split when wish to live together − whether 8 years old’s primary attachment to mother had abated – whether father withheld children without reason. |
| Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 65DA(2), 62B Federal Magistrates Court Rules 2001, r.21.15 |
| H & H (1995) FLC 92 599 |
| Applicant: | MR FAGUNDES |
| Respondent: | MS FAGUNDES |
| File Number: | DGC 3886 of 2009 |
| Judgment of: | Phipps FM |
| Hearing date: | 4 November 2011 |
| Date of Last Submission: | 4 November 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 4 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Macpherson & Kelley Lawyers |
| Counsel for the Respondent: | Ms Swart |
| Solicitors for the Respondent: | Julie Taylor |
| Counsel for the Respondent: | Ms Bonney |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
That all current parenting orders be discharged.
That the wife and husband have equal shared parental responsibility for [X], born [in] 1999, (“[X]”) and [Y], born [in] 2003, (“[Y]”), (“the children”).
That the children live with the husband.
That the children spend time with the wife as follows:
(a)For half of each of the three mid-year Western Australia school holidays, as agreed, and in default of agreement such time shall commence on the Saturday after the last day of the School term and conclude at a reasonable time on the middle Saturday of such holidays;
(b)For half of the Western Australia long summer Christmas school holidays in each year as agreed, and in default of agreement such time shall:
i.Commence immediately after school on the last day of the school term and conclude at a reasonable time on the middle day of such holidays in 2011/2012 and each alternate year thereafter; and
ii.Commence at a reasonable time on the middle day of such holidays and conclude at a reasonable time on the last Saturday of such holidays in 2012/2013 and each alternate year thereafter;
(c)On each of the children’s and the wife’s birthdays, when the wife is not otherwise spending time with the children, at times to be agreed between the parties, such time to be spent in Western Australia;
(d)As otherwise agreed between the parties; and
(e)It is not necessary for the children to spend the same amount of time with the wife pursuant to paragraph 4.4 herein, it may be that either [Y] or [X] spends more time with the wife during the holidays than their sibling;
(f)Upon the wife giving the husband not less than 28 days notice in writing the children spend time with the wife in Perth during school term time but not more than two occasions in each school term and for not longer than 4 days on each occasion. The wife must ensure that the children attend school and their usual extra curricular activities during the time they are with her.
That the wife may communicate with the children by telephone and or SKYPE at all reasonable times with the husband to facilitate such calls including; on the children’s birthdays, the mother’s birthday and Mothers Day.
That the husband may communicate with the children by telephone and or SKYPE during the holiday times the children spend with the wife at all reasonable times with the wife to facilitate such calls.
That for the purpose of the children’s changeover from the husband to the wife in order to spend time with the wife in Victoria pursuant to the orders contained herein:
(a)The husband shall book and pay for airline tickets for the children to travel from Perth to Melbourne and return for the first and third Western Australia school term holidays in each year and shall deliver the children to Perth Airport in order that they may travel to Melbourne;
(b)The husband shall email to the wife the children’s itinerary and flight details at least two weeks before they travel and the wife shall acknowledge the receipt of such an email and she shall deliver the children to Tullamarine Airport in order that they may return to Perth;
(c)The wife shall book and pay for airline tickets for the children to travel from Perth to Melbourne and return for the second Western Australia school term holidays and the long summer Christmas holidays in each year;
(d)The wife shall email to the husband the children’s itinerary and flight for details at least two weeks before they travel and the husband shall acknowledge the receipt of such an email and he shall deliver the children to Perth Airport in order that they may board their flight to Melbourne;
(e)The wife shall collect the children from Tullamarine Airport at the commencement of each period in which she is to spend time with the children in Victoria; and
(f)At the conclusion of such time the wife spends with the children pursuant to these orders she shall deliver them to Tullamarine Airport so that they are able to board their return flight or flights.
That the wife and the husband shall:
(a)Keep the other advised at all times of the current residential address and landline and or mobile telephone numbers of the children;
(b)Advise the other immediately in the event that the children or either of them suffers any serious illness or injury or that either parent suffers any serious illness or injury which impacts on their ability to care for the children;
(c)Authorize any medical practitioner upon whom the children may attend from time to time, to communicate with the other parent in respect to the children’s medical condition and/or requirements;
(d)Authorize all schools at which the children may attend to:
i.Provide the wife, at the expense of the wife, copies of all school reports, school notices and school photographs in relation to the children;
ii.Communicate with the wife, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their school;
iii.Each parent may attend all school functions to which parents are normally invited.
That the wife, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the husband or any member of his household in the presence or hearing of the children.
That the husband, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the wife or any member of her household in the presence or hearing of the children.
That the husband shall do all things necessary to ensure as soon as practicable that both children receive psychological or psychiatric counseling from a registered psychologist or psychiatrist specializing in child and adolescent psychology (“the health professional”) in order to address any issues the children may have in relation to the parental conflict, these proceedings and the implementation and effect of these orders:
(a)The husband shall pay the professional fees of such psychologist or psychiatrist;
(b)The husband shall provide the details of such a health professional to the wife and to the Independent Children’s Lawyer as soon as practicable;
(c)The husband shall provide a copy of these orders to the health professional;
(d)The husband shall authorize the wife to contact the health professional.
That both parties enroll in and complete a post separation parenting course as soon as practicable.
That the Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)The Principal or delegate of the Principal of the school attended by either or both of the children;
(b)Any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the wife or the Husband.
That the wife, on receipt of passport applications for each child from the husband shall sign each application and otherwise give all necessary authority to enable the children to obtain passports.
That each party is permitted to take the children out of the Commonwealth of Australia for the purpose of holidays. Not less than 28 days prior to the holiday the parent must email to the other parent the itinerary and flight details and a telephone number on which the children can be contacted during the holiday.
That each party is authorized to give a copy of the family report to any psychiatrist, psychologist or other health professional treating the children.
That pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and those particulars are included in these orders.
That the order of the Court appointing the Independent Children’s Lawyer be discharged in 30 days from the date of these orders or upon receipt of the details of the children’s attendance at the health professional as set out in order 12 of these orders, whichever occurs first.
That all applications in relation to parenting orders are otherwise dismissed.
That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
IT IS NOTED that publication of this judgment under the pseudonym Fagundes & Fagundes (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 3886 of 2009
| MR FAGUNDES |
Applicant
And
| MS FAGUNDES |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Ms Fagundes, the mother and Mr Fagundes, the father, have two children, [X], born [in] 1999, and [Y], born [in] 2003. [X] is twelve, and [Y] is eight. Currently both children are living with their father in Perth. The controversy between the parties is whether [Y] should remain living in Perth with his father, or whether he should return to Victoria to live with his mother in [W].
The mother’s proposal is that [X] should remain living in Perth with her father, and [Y] should live with her in Victoria. She then proposes that the children spend time with each parent so that they spend half of each school holidays with one parent and half with the other parent. She proposes that the father should pay the cost of travel. She is opposed to any passport being issued for the children. If an order is made that [Y] should remain living in Perth, she proposes that both children should spend 10 days of each school term holidays with her in Victoria, and four or four and a half weeks of the summer holidays with her in Victoria. The father’s proposal and the Independent Children’s Lawyer’s proposal are the same. That is that both children should live with the husband, that the children spend time with the wife for half of each of the school term holidays and for half of the Christmas school holidays. Both propose additional time if the mother is in Western Australia.
The father and Independent Children’s Lawyer include a proposal for an order that the time spent with the wife may also be spent in Western Australia. In final submissions there was some discussion that there could be a more detailed order to that effect. Communication by telephone or Skype, both when the children are in Perth and when they are in Victoria is proposed. The proposal for travel is that the parents should share the cost of travel by one of them booking and paying for the airline tickets for two of the occasions on which the children are coming to Victoria, and the other parent booking and paying for the tickets for the other occasion on which the children are coming to Victoria.
There are proposals for orders that each keep the other advised of addresses and telephone numbers, of events that cause serious illness or injury, for the authorisation of medical practitioners to communicate with the other parent, and to authorise the schools at which the children attend to provide the wife with copies of school reports, school notices and school photographs, and for the school to be authorised to communicate with the wife by telephone or in writing, or by personal attendance, and a proposal that each parent may attend all school functions to which parents are normally invited. There is a non-denigration clause proposed, and a proposal that the husband do all things necessary to ensure, as soon as practicable, that both children receive counselling and the husband pay the fees.
A history of the parties’ relationship gives much of the evidence which needs to be looked at in terms of the relevant provisions of the Family Law Act 1975 (Cth). I will refer to the parties as “mother” and “father”, for the purpose of convenience.
The mother was born [in] 1969. She is 42. The father was born [in] 1970. He is 41. They commenced a relationship in 1998, married [in] 2002, and separated on 7 September 2007. They met when on holiday in Queensland. They lived in Cairns for some time then moved to Victoria. The husband engaged in work in Victoria. In February 2002 they purchased a house in [omitted]. The husband then joined [occupation omitted] a little before they were married [in] 2002.
In February 2003 the husband[‘s employment was transferred to] Western Australia. The parties lived there until shortly before separation. The husband was discharged from [employer omitted] on psychiatric grounds on his own application in March 2007. The parties then returned to Melbourne, but then after they returned to Melbourne they separated on 7 September 2007. The husband then moved back to Western Australia. He has subsequently married Ms O. The wife alleges that the husband had commenced a relationship with Ms O prior to separation. The husband and Ms O say that that is not correct, that the husband was living in Ms O’s premises as a boarder, they having met through their work commitments, and it was only after the separation that they commenced their relationship. It is not necessary to resolve that controversy, but it is one of the elements in the acknowledged poor relationship, and indeed hostility between the mother and the father.
The family law proceedings are as follows. On 1 August 2008, consent orders provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and the children to spend time with the husband, as might be agreed from time to time, where practicable, such time to occur in Western Australia.
The order provided for the sale of the parties’ former matrimonial home at [omitted] in Western Australia, and the division of the proceeds. In May 2009, the father commenced proceedings in the Family Court of Western Australia. Interim orders were made on 14 August 2009 providing for the children to spend time with the father during school holidays in 2009 – 2010. The father was proposing that at least one of the children should live with him, but on 6 January 2010 he discontinued those proceedings.
The current proceedings were commenced in Victoria in the Federal Magistrates Court of Australia at Dandenong this year. Following the orders of 14 August 2009, the children spent time with the father in Western Australia. The father says that for a period of perhaps 18 months prior to January 2011 when [X] was staying with him, she was telling him that she wished to lived with him, and he said he told her that the arrangements or orders were that she should be living with her mother in Victoria, and so she was returned.
In about late September or early October 2010, the mother met Mr B. Both of them were volunteer workers at [M] in [W] which provided various community services in that district. In late October, they commenced a relationship. They did not live together, but Mr B, on occasions, stayed at the mother’s house. When the parties separated in 2007 the mother was living in the Melbourne suburb of [omitted] with the two children. They holidayed in [W], and the mother, following the property settlement and her receipt of payment, decided that [W] was a place where she could afford to purchase a home and would be a good place for her to bring up the children. She purchased a small property in [W], an [description of buiding omitted] which was in a very run-down condition, and renovated it. The mother and the children then moved to [W].
Filed on behalf of the mother are affidavits by Ms M, Ms B and the Reverend P. Ms M is the person who provided the mother with a house when she holidayed in [W]. Ms B is the centre manager of [M]. The Reverend P is the reverend of the [omitted] Church which the mother attends. All three of those depose to the mother’s achievement in purchasing the house in [W], renovating it, and establishing her home there with her children. All of them refer to the very successful and skilful manner in which she cared for the children. The mother had, by January 2011, successfully established herself in [W].
She commenced the relationship with Mr B, which lasted until 10 March 2011. She said that for the first six weeks or so, there was something of a honeymoon period, but then she began to have concerns about Mr B’s level of maturity in dealing with her two children. An example of what concerned her about Mr B’s behaviour was that when he was at their home he would insist that the television be turned to the program he wished to watch rather than the program the children wished to watch. He could be very loud and perhaps even aggressive.
The children went to stay with their father in January 2011. They went on 14 January 2011. Some few days into that holiday, [X] spoke to
Ms O, the father’s wife, and then to the father about what [X] said were events which had been happening in Victoria concerning Mr B. A particular issue was [X] saying that Mr B had been doing what is described as “playing the typewriter” on her chest. That is, sitting on her chest and drumming with his fingers on her chest, as if imitating a typewriter. She told Ms O and then her father that that had happened on four occasions. She said she had become so distressed that he was doing it and would not stop that she had wet herself.
She said that she had seen Mr B’s genitals. She said that she had heard her mother and Mr B having loud sex. She then complained about
Mr B’s behaviour generally. She described an incident which had happened on Christmas Eve. On that occasion, Mr B was driving the mother and the two children to a Christmas event at the mother’s relatives. Ms O says that [X]’s description of that event is this: [Y] had been asleep. He had woken up, stretched, and as he stretched, he kicked the back of Mr B’s seat. Mr B became angry, pulled the car over on the side of the [omitted] Freeway, close to where it finishes at [omitted] Road. She said that Mr B got out of the car in an angry fashion, opened the passenger side door where [Y] was sitting, and grabbed him by the upper arm and was attempting to pull him from the car. She said she held onto [Y]. Her mother got out of the other side of the car, and then pulled her and [Y] out of the car and moved them away and then went back and spoke to Mr B. Eventually they all got back in the car and continued the journey to the Christmas function.
The mother’s evidence is that [Y] was kicking the back of the driver’s seat, that is, Mr B’s seat, and that it happened “more than once”, although she did not put a number on it. She said Mr B has a back injury. He was telling [Y] to stop. [Y] did not, and Mr B stopped the car. She said she knew he was angry. She got out her side of the car, and pulled [X] out. [X] was holding [Y] and pulled him as well. She said that Mr B did not touch or seize [Y]. [X] told Ms O and her father that [Y] had a red mark on his arm. The mother then said she considered ringing one of her family to come and collect her, or ringing a taxi, but concluded that that could not be done, so she calmed Mr B down and they continued on their way.
The mother’s version of the typewriter incident is that she saw it only once. She said that all four were sitting in their house. It was a pleasant occasion. The mother said that when she was young, her brother used to play the typewriter on her chest. [X] asked what that was, and Mr B said, “I’ll show you”, sat on her chest and drummed his fingers on her chest. She said that [X] was laughing, and laughed so much that she wet herself. She said it only happened on the one occasion.
As well as [X] telling Ms O and her father of these events, she said that she wanted to stay in Perth and wanted to stay with the father and that she would not return to Victoria. The father says that he was not entirely sure what to make of these events, in the sense that he did not know whether it was sexual abuse or not. He contacted the Child Protection Authorities in Victoria and he spoke to a police officer in the Sexual Abuse and Child Abuse unit. He was asked by the police officer to send a statement, which he did by email, and was told by the police officer that he should do what was necessary to protect his child. He also says he contacted QANTAS by ringing their general number and enquired what would happen if a child was placed on the plane who did not want to return back to Melbourne. He was told that if a child was causing a problem like that, if there was a risk that it would interfere with the proper operation of the flight, the child would be removed and not remain on the plane.
The father did not contact the mother. [X] did contact the mother and told her that she did not want to return. Originally that was by text message. In the end, [X] did not return. All four, that is, the father, his wife and the two children went to Perth Airport for [Y] to return. They did not pack [X]’s bag. The father said he decided that he should not attempt to make [X] return. There was some discussion in the course of the proceedings, including cross-examination of the father about whether he should have spoken to the mother, or whether he should have made more effort to have [X] return, or taken some other steps.
In the end, the only relevance of that is to when I get to the s.60CC considerations. That consideration is the willingness and ability of each of the parents to promote a relationship with the other parent. But it is now agreed, the mother concedes, that [X] will remain living with her father in Perth. [Y] returned to Victoria. The mother, while she said she had determined that she should finish her relationship with Mr B, had not decided that she would do so. She said she found him a support in times which were, understandably, very difficult for her.
Before moving on to events in March, I need to say something about the mental health background of both parties. I have already said that the father was discharged from [employer omitted] on psychiatric grounds. Discharge papers and documents leading up to those discharge papers are annexed to one of the father’s affidavits. He describes depression and being treated by a psychiatrist and taking medication. He says that part of the effect on him was that he was abusive and violent towards his family at home.
The mother gives considerable detail about events during the relationship alleging violence and abuse. The father now says of his application to be discharged from [employer omitted] that he did what was necessary to be discharged. The fact is that he states in his own words that he was violent and abusive and he was being treated by a psychiatrist for depression. Following the separation in 2007 the father attempted suicide. He then had counselling for some 18 months and now says that he is well, he is very settled, and happy in his life with Ms O.
Regarding events in March 2011 the mother says since September 2007, after the separation, she has suffered from reactive depression. This has been controlled by the use of prescription medication. She was finding events in early 2011 very difficult. The mother made arrangements to travel to West Australia to spend time with [X] from 4 to 8 March 2011. Friends had booked tickets for her.
It did not happen because the mother says the father said he would not allow [X] to see her. It seems the father may have been concerned that the mother would return [X] to Victoria. On 10 March 2011 the mother and [Y] attended a social gathering, or a barbeque at a friend’s house, Mr B attended as well. They were discussing arrangements for a camping trip on the long weekend. At one stage, [Y] threw a stick for dogs into a vegetable patch. Mr B reacted very angrily.
The mother remonstrated with Mr B and she went home and decided at that point that she would end her relationship with Mr B. The next morning she told Mr B and she told [Y], who was disappointed about the camping trip. This is 11 March 2011. She took [Y] to school, telephoned [X], and arranged for [Y] to be cared for by friends, a police officer and a welfare worker. She then drank a substantial amount of alcohol and took an overdose of her medication, intending to kill herself. She attempted suicide.
The police attended and she was taken to the [W] Hospital. The Child Protection authorities were notified about [Y]’s position. The father was contacted and he came to Victoria. The Department of Human Services file shows conversations between him and the Department of Human Services workers about whether he could take [Y] back to West Australia and a response by the Department of Human Services workers that they could not say that because they did not know what the mother’s position was.
The father was permitted by the Child Protection officers to take [Y] to Western Australia. The mother spent overnight in hospital, was assessed by psychiatric services and since then she has been under psychiatric care by a Dr C and has an assigned caseworker. She still remains under their care. Dr C has written his original discharge letter to the mother’s general practitioner and two reports. He gave some brief oral evidence. Both the parties had a psychiatric examination by Dr K and his reports are part of the material before the court.
It is sufficient to say that the psychiatric evidence is that both parents are psychiatrically well. They have some difficulties but neither of them present any threat to the children. The mother remains in contact with the caseworker and is seeing Dr C on a five or six weekly basis. Dr C expects that to continue into next year. The mother is on medication and the evidence shows that she is complying with the treatment and cooperating with the treating professionals.
[Y] then went to Western Australia with his father. The father then commenced these proceedings on 16 March 2011 in this court. The matter first came before me on 5 April 2011 for contested interim hearing. I suspended the orders of 1 August 2008 and made an order that the children live with the father and spend time with the mother as agreed. That hearing came on on short notice. It was then adjourned to 15 April 2011. On 15 April 2011 I ordered that the father bring both children to Victoria to confer with a family consultant under an order I made under s.11F of the Family Law Act 1975 (Cth). That was to happen on 2 May 2011.
There was an order for the children to spend time with the mother from 9.30am to 4.30pm on Saturday, 30 April 2011 and Sunday, 1 May 2011 and I adjourned the matter to 2 May 2011. On 2 May 2011 an oral report was given by the family consultant, Ms G. Subsequently confirmed by a written report. That showed a strong desire by [X] to stay with her father, that [Y] was confused and missing his mother but that he wanted to be with his sister. The medical material before the court at that stage was Dr C’s letter to the mother’s general practitioner.
I then adjourned the matter to 6 June 2011 and ordered the mother to file a further report from Dr C and left the orders in place for interim orders for both children to live with their father. On 6 June 2011 a further interim hearing took place and there was a further report from Dr C. I then ordered that until further order [X] live with her father and [Y] live with the mother. I ordered that the father deliver [Y] to the mother at a police station in West Australia at 5.00pm on 10 June and that [X] spend time in Western Australia with the mother from 5.00pm 10 June 2011 until 12noon 12 June 2011, with the changeovers to take place at the police station.
I made orders for [Y] to spend time with the father in Victoria. There were then some further proceedings in June 2011 following a letter from the father’s solicitors to the mother’s solicitors that [Y] would not be delivered to the mother. That led to proceedings in the court on 9 June 2011 and reassurance in court by the solicitor representing the father that the orders would be complied with. The place was to be at [omitted] Police Station. On 11 June 2011, the father and Ms O and the two children went to a park near [omitted] Police Station. They took their dog. The mother came to the park. [X] refused to go with her mother, and [Y], after initially showing pleasure at seeing his mother, also would not go. There was an altercation about which there is some dispute.
It is alleged that the mother attempted to drag [Y] away; that is the father’s version. The mother says she picked [Y] up, wanting to take him with her. She was unable to obtain assistance from the police and in the end the children did not go with her. There were then further proceedings on 15 June 2011 before me where there was an application for an order that both children should live with the mother and a recovery order. I did not make that order. I varied the orders, yet again, so that [Y] remained living with the father in Perth.
It was possible to make arrangements for interviews for a family report with Mr H during the Perth school holidays. I made orders for the children to spend time with the mother in Victoria from 9 July to 16 July 2011. The family report is dated 12 August 2011. On 17 August it was again in court where I fixed it for final hearing on 26 October 2011.
There was an order made for the psychiatric report and an order for [X] and [Y] to spend time with the mother for seven clear days in the Western Australian school holidays in October 2011 with that contact to occur in Melbourne. With that background, I turn to the provisions of the Family Law Act 1975 (Cth).
Both parties propose that there be an order for equal shared parental responsibility and there is no reason why that order should not be made. That means that s.65DAA must be considered. That requires the court to consider whether equal time or, if not equal time, substantial or significant time would be in the children’s best interests and reasonably practicable. It is quite apparent that equal time is not reasonably practicable because of the distance the parties live apart. And insofar as substantial and significant time is concerned, whichever arrangement is determined, the difference in times with the non-resident parent can only be a matter of a few days in school holidays and perhaps a week or so in the summer holidays. Any greater would not be reasonably practicable.
In practical terms, the issue comes down to what is in the best interest of the children; whether the best interests consideration are dealt with under s.65DAA or whether they are dealt with by reference only to s.60CA and s.60CC. Section 60CA provides that the best interests of the children are paramount and s.60CC sets out the considerations for determining what is in the children’s best interests. That must be decided bearing in mind the objects of the Family Law Act 1975 (Cth) contained in s.60B.
The first of the principle considerations is the benefit to the children of a meaningful relationship with both of the child’s parents. To the extent which will be possible, having regard to the other considerations, whichever proposal is adopted the children will have a relationship with each parent to the extent that that is possible given the distance between their homes. The second of the primary considerations is the need to protect the children from physical or psychological harm. I am satisfied that neither parent presents any risk to the children by reason of their past psychiatric history. Both of them have shown a strong capacity to care for each of the children.
I turn to the additional considerations. The first of the additional considerations is the views of the children and any factor such as child’s maturity or level of understanding that the court considers are relevant to the weight it should give to the children’s views.
The children’s views are clear now. [X] wishes to live with her father, and the mother accepts that that is the case and that her wish must be respected. Both children told Mr H that wherever they live they want to live together. [Y] told Mr H when interviewed on 11 July 2011 that he wanted to live with his mother. In his report Mr H was unable to make a recommendation about where the children should live.
Mr H gave oral evidence. He said he normally would make a recommendation, but while he was clear in his view that the children should live together, at the point at which he saw them and the parties for the purpose of the family report, he could not reach a conclusion about whether the children should be living with their mother or with their father.
He emphasised both children had a strong wish to live together, that [X] wanted to live with her father and [Y] wanted to live with his mother, and each of them seemed to accept that that was the other’s view while maintaining that they wanted to live together.
Both children were interviewed by the Independent Children’s Lawyer in early October 2011 when they were in Victoria spending time with their mother. All accept now that [Y] told the Independent Children’s Lawyer that he wants to live with his father and his sister in Western Australia. The views of both children now are that they wish to live with their father. [Y] is eight, and his age must be taken into account in assessing his views. Mr H says that his primary attachment has been to his mother, but that with the passage of time since March 2011, his need to be with his mother has reduced.
Mr H describes the sibling bond between the two children as “very strong”. When he was interviewing [Y], he became upset. He brought [X] into the room. She noticed that [Y] had been crying. She cuddled him and stroked his hair, and Mr H says that [Y] quickly recovered and appeared slightly embarrassed by his sister’s affection and started to act the fool.
Mr H said that once they had settled, they sat side by side, close together, and discussed their wishes with him. Mr H’s opinion is that the children’s close bond is understandable given what they have been through. Prior to separation, life was difficult because of their father’s mental problems. I have already said how in his application for discharge from [employer omitted] he said that he was abusive and violent on occasions, caused by his depression.
The father says he did what was necessary to obtain a discharge from [employer omitted]. Whether that is correct or not, he was under the care of a psychiatrist and life must have been difficult for the family. The children’s mother has suffered from depression. The family moved to Victoria, and then the parents separated and the father moved back to Western Australia.
The children lived with their mother for a time in the Melbourne suburb of [omitted] and then moved to [W] in rural Victoria. Both were subjected to the behaviour of Mr B. Whatever that behaviour was, it was unsatisfactory, as the mother acknowledges. Then the events occurred which left [X] in Perth and [Y] returning to Victoria. There was the mother’s attempted suicide and [Y]’s move to Perth, the return to Melbourne for a meeting with a family consultant in May 2011, then again coming to Melbourne and meeting with Mr H in October; all very unsettling matters. Mr H is of the view that this history explains the very close sibling bond between the children.
Mr H accepts without reservation [Y]’s desire to live with his sister and now accepts that his statement that he wishes to stay in West Australia is understandable. There is a clear explanation for [Y]’s wish to live with his sister and Mr H accepts that this is [Y]’s clearly expressed wish. I accept that [Y]’s wish to live with his sister and his father is genuine and rational. Consequently, [Y]’s view that he wishes to live with his sister in Perth and with his father must be taken into account.
The second of the additional considerations is the nature of the relationship of the child with each of the child’s parents and other persons. What I have already said in deciding that [Y]’s desire to live with his father and his sister is genuine and rational is applicable in relation to this consideration.
[Y]’s primary attachment has been to his mother, and hence his desire to return to Victoria in January 2011 when his sister remained in Western Australia. He stated to Mr H in July 2011 that while he wanted to live with his sister, he wanted to live with his mother. In October 2011, [Y] told the Independent Children’s Lawyer he wanted to live with his father, and Mr H considers the change is understandable and explained by the passage of time between March and October 2011.
Time and circumstances has decreased the significance of [Y]’s primary attachment to his mother. So far as sibling bonding is concerned, Mr Allen, who appeared for the father, read to Mr H a passage from an article published in 1991 in the Journal of Divorce and Remarriage, volume 16, numbers 3 and 4: Issues of Split Custody: Siblings Separated by a Divorce by Lori Kaplan, Linda Ade-Ridder and Charles B. Hennon.
The extract which Mr Allen read is in a judgment of Nicholson CJ in H & H (1995) FLC 92 599, a judgment delivered, coincidentally, at Dandenong. The passage is set out towards the commencement of the Chief Justice’s judgment. I do not need to read it, but it is part of the evidence. Mr H accepted that as a correct statement of the importance of the sibling relationship.
It concludes with this statement:
For this reason, split custody seems undesirable, because it not only breaks the continuity of a relationship with an adult, but also breaks the continuity of a relationship with a sibling.
These matters are relevant to the consideration of [Y]’s relationship with his mother. His primary attachment was to his mother. In his report Mr H describes the importance in developmental terms of the primary attachment of an eight year old. That is part of the reason why he was not able to make a recommendation in the report. As circumstances have moved on, he now says the sibling relationship is the one that is more important than the mother’s relationship.
I have already described Mr H’s evidence about [Y]’s strong relationship with his sister and the reasons why I accept that that is a genuine and rational one. I do not need to repeat it.
The next of the additional considerations is the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship. The wife submits that the husband’s actions in January 2011 when [X] was not returned, and then his removal of [Y] to Perth in March 2011 shows that he is not willing to promote the relationship with the mother. So far as January 2011 is concerned, the father says he did not know what to make of the statements about
Mr B’s behaviour made by [X] to Ms O and him. I have described how he contacted the child protection authorities and spoke to a police officer. He mailed a statement to police as requested. [X] was saying to him that she would not go back, and he also had the advice from Qantas that they might not take her on the plane. Mr H concluded that the typewriter incident or incidents were not sexual abuse, but it is clear that [X] did not find them amusing.
There is some perhaps better evidence of what [X] was saying about those events in the case notes of a psychologist, Ms J. [X] was referred to the psychologist under a mental health plan. The father took her to see a general practitioner. The notes of 3 March 2011:
This issue, as [X] explained to me: “I don’t like mother’s boyfriend Mr B.” Been together approximately five months. Mr B sat on her, poked her chest hard, called it “typewriter”. She told him to stop, but he kept going and peed her pants as a result. Happened twice. Smoked in the car when they were all the car. [X] said Mr B exposed his private pants to her brother and swinging it around, can hear her mother and Mr B having sex. [X] says she does not like Mr B acting like he is King of the House. He apparently told her to get off the couch, and when she would not he sat on here. ….. that [X] says she had arguments with her mother every day.
I accept that Ms O and the father are recording as accurately as they can recall what [X] told them. It is possible that their recollection is influenced by their feelings towards the mother. These are notes by a professional whose task is to record accurately what is said.
I note that [X] says to Ms J the typewriter incident happened twice, whereas Ms O and the father says she said it happened four times. The substance of what [X] says about it is the same, and the substance of her reaction to Mr B is the same. I accept that all these factors combined mean the father was being told by [X] of very disturbing behaviour towards her by Mr B and a clear statement by [X] that she would not return. I accept that the father’s behaviour in January 2011 was rational. So far as March 2011 is concerned, it seems clear enough that by that stage the father was hoping that [Y] would live with him. It is understandable that having heard that the mother had attempted suicide, and [Y] had been left with friends, that he should come to Victoria. Whether he should have left [Y] in Victoria in the care of friends for longer while the mother’s position was ascertained or not is something which it is difficult to determine. Perhaps he should have but he did take [Y] back to West Australia.
Clearly in June 2011, when [Y] was meant to be returned to the mother, the father did not wish to return [Y] to the mother. There was a letter sent by his solicitors saying that he was not going to do so. He was not going to comply with the order. Wiser heads prevailed, and that statement was withdrawn, but [Y] did not go. Mr H says that subsequent partners should not attend changeover. He states that as a general rule because of the difficulty it causes. It is clear enough that in June the father was not wanting [Y] to have the relationship with his mother that the court had decided he should have. However, since then the children have come to Victoria twice, in July 2011 and in October 2011. Their mother says that the children enjoyed their time with her, that is was a happy time, and the father has complied with those orders. I consider that away from the stress of the events of this year and of the court proceedings the father will comply with court orders and that he will encourage the children to have a positive attitude towards their mother.
The next of the additional considerations is the likely affect of any change in the children’s circumstances. I need say no more about that than I have already said. [Y]’s change from living with his mother to living with his father since March 2011 has obviously upset him. The family report shows that, but if he was moved back to Victoria to live with his mother he would be separated from his sister and the expert evidence from Mr H shows that it would be very likely to have a detrimental affect on [Y]’s well-being.
The next of the additional considerations is the practical difficulty and expense of the child spending time with and communicating with a parent. The difficulty is obvious with one parent in Victoria and the other in Western Australia. As to the cost, the mother has little or no income. At the time of the hearing last week, she had just commenced casual employment in a [business omitted] in [W]. She had worked on two occasions. She hoped that that would provide her with some income otherwise she was dependant on social security payments. She is committed to a mortgage for the [W] house. At the time she made that commitment she had the two children living with her and she had a reasonable expectation of child support payments from the father and the social services payments which would come to her as a single parent of two children. The father’s income is about $115,000 or $120,000 a year and Ms O’s income, his wife’s income, is about $75,000. They have a combined income of close to $200,000. There are no dependants other than the two children, [X] and [Y].
This consideration is relevant to who should pay the cost of travel. The father’s proposal is that it be shared. The mother’s proposal is that the father should pay it. The mother accepted that there are opportunities for employment in [W]. All of the major [business’ omitted] are there and there are other places. She said she does not want to do that work. The place she is working in is very pleasant, she enjoys it. That is in the context of her recovering from her suicide attempt and depression in March 2011. She remains under psychiatric care and is taking medication. Her wish to have employment which she finds supporting is understandable. Ultimately the Family Law Act 1975 (Cth) principle, one of the objects, is that parents should share the burden of the care of children. The father will have the whole of the cost of caring for the children. The return fares for both children, assuming best fares can be obtained, is agreed to be about $1,000 on each occasion. If the fares are shared that means the mother would have to find about $2,000 to pay them. If the father pays them all, he will need to pay $4,000 rather than $2,000. This is the evidence under that heading and I will state my conclusion once I have finished the consideration of the s.60CC considerations.
As to the capacity of each of the child’s parents to provide for the needs of the children, I am satisfied from what I have already said that each does have that capacity. I do not need to say any more about the maturity, sex, lifestyle and background of the children and I do not need to say any more than I have already said to cover the consideration, the attitude to the child, and the responsibilities of parenthood demonstrated by each of the child’s parents. There is some family violence in the background but it is not now relevant.
The consideration of those matters lead to the conclusion that [Y] should live with his father. He has a clear view that that is what he wishes to do. His relationship, his sibling bond with his sister, is strong and particularly strong given the circumstances. His attachment to his mother has abated over time, otherwise none of the matters which I have referred to suggest that they should override [Y]’s wish, [Y]’s view, and his strong attachment to his sister.
As to the time with the mother I have expert evidence from Mr H, a very experienced social worker in the children’s field. He said that holiday time with the principal carer is important in a child’s relationship and so the holiday time should be shared between the principal carer and the other parent. The mother proposes 10 days in term holidays and four or four and a half weeks in Christmas holidays, so something more than half. The additional time will not necessarily promote the children’s relationship with their mother. They do have a meaningful relationship with their mother. The school holidays show that [X], now that she is living with her father, does have a good relationship with her mother and can share happy times with her. I accept the recommendation of Mr H that the holiday times should be shared.
I have referred to the cost of travel. The father will have the majority cost of the care of the children, the day to day living costs, except when they are with their mother. He will bear all the education expenses and all the costs of holidays, amusement, and extra-curricular activities. The proper arrangement is for the parties to share the cost.
The last issue is the question of the passport. The immediate reason for the father wanting to have passports for the children is that his mother, that is the children’s grandmother, has offered to pay for a family holiday in Bali. Looking at the usual travel considerations, that is, the risk the children will not be returned to Australia, any risk the children might suffer outside Australia, and the interruption to the other parent’s time with the child, none of those point against the passport. The children are Australian citizens. Their parents are Australia citizens. Their father owns his home in Perth. He has secure employment in Perth. His wife is an Australian citizen. She has secure employment in Perth. They are not going to take the children out of Australia and not bring them back. There is no evidence that the father intends taking the children to any place for which there is an undue risk. I am aware that there are travel warnings in relation to Bali, but I am also aware, as a matter of general knowledge, that many Australians travel to Bali without incident.
The mother’s reason for opposition is that it has been a very emotional time for her and she is not yet ready to cope with the prospect of the children leaving Australia. The children are living in Perth and the mother must be aware of the geographical situation of Perth. Perth to Bali is a similar distance most Australians travel on a regular basis within Australia. While it has been a most upsetting year for the mother, there is no reason why the children should not have a passport.
There is a proposal for an order that the children have psychological assistance. Mr H noted that this is particular in relation to [X] Mr H observed that she does compulsive counting with her fingers and makes a whistling sound when starting sentences. Particularly the compulsive counting, which [X] said she could not stop, is something which needed to be treated and needed to be attended to. It showed compulsive behaviour on the part of [X]. Mr H said she will need a considerable amount of psychological counselling. There is no opposition by either party to an order that that take place and the father has already commenced it.
Before I go on to the other arrangements I have put in a specific arrangement for the mother to spend time with the children in Western Australia upon giving 28 day’s notice in writing for a period of no more than four days, and not more than twice each term, and I will put in a provision that she ensure the children attend school and their usual extra-curricular activities during the time they are with her. Mr H considered that the children could be taken out of school to spend time with their mother because of the importance of their relationship with their mother. When I consider the substantial and significant time provisions they show the importance of a parent being involved in children’s normal activities. I consider that the children’s relationship with their mother would be better promoted if she is able to travel to Western Australia in term time, if she is taking the children to school, collecting them from school, and involved in their normal school activities.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Phipps FM
Date: 25 May 2012
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