G & M --

[2001] FMCAfam 147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & M [2001] FMCAfam 147

FAMILY LAW – Children – Residence – Contact – Child abuse – Emotional abuse – Physical abuse – Welfare of the child – Conduct of parents – Best interests of child – Orders – Family Law Act 1975 s68F(2)

H v W (1995) FLC 92-598,

Applicant: B R G

Respondent: C M

File No:   ZP 571 of 2000

Delivered on: 20 July 2001

Delivered at: Parramatta

Hearing Date: 7 & 8 November 2000
20, 21 &27 March 2001

Judgment of: Scarlett FM

REPRESENTATION

Solicitor for the Applicant: Ms Baker of McIntosh, Emerton & Thomas, Solicitors, DX 20255 Parkes

Solicitor for the Respondent: Mr McKay of Bladock Stacy & Niven, Solicitors DX 28417 Parramatta

Solicitors for the Children: Mr Dunkley of McPhee Kelshaw & Co, Solicitors DX 26729

ORDERS

1. The child R J G is to reside with the Applicant father who shall be responsible for the day to day care, welfare and development of the said child.

2. The Respondent mother is to have contact with the said child as follows:

   (a)For the first half of each school holiday period commencing at 3.00 pm on the Saturday after school term finishes until 5.00 pm on the middle day of the school holiday period;

   (b)For a period of three weeks during each December/January school holiday period being the first three weeks in 2001 and each alternate year thereafter and the Last three weeks in 2002 and each alternate year thereafter;

   (c)By telephone for not less than ten minutes each Wednesday between the hours of 7.00 pm and 8.00 pm and on one day each weekend; and

   (d)For the long weekends of the Queen’s Birthday public holiday in June of each year and the Labor Day weekend in October of each year from 8.00 pm on the Friday evening to 5.00 pm on the Monday evening.

3. For the purpose of exercising contact pursuant to Order 2 hereof, the changeover point is to be the McDonalds Family Restaurant at L.

4. The father is not to use any physical punishment on the said child.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 571 of 2001

B R G

Applicant

And

C M

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the father that the child R J G, who was born on 7 December 1988, reside with him. R, now aged 12 years, is the daughter of him and the respondent mother. The father’s application is to vary orders made by consent at G Local Court on 14 August 1997, which provided that R should reside with the mother. The mother opposes that application. The proceedings were commenced in the Family Court of Australia at Dubbo, and transferred to the Federal Magistrates Court.

2. The application originally came before this Court on 3 August 2000, when a family report was ordered and an order was made that the father should have telephone contact each Sunday. At an interim hearing on 29 August, contact orders were made, some by consent.

3. The matter was heard on a final basis on 7 and 8 November 2000, and 20, 21 and 27 March 2001.

Background

1. The father was born on 7 November 1950, and so is now 51 years of age. The mother was born on 20 March 1954, which means that she is now 47 years old. Each of the parents had children by prior relationships. The father had previously been married and had two daughters and a son. The mother has two daughters and a son by previous relationships. The subject child is the only child of the relationship between the applicant and the respondent.

2. The applicant and the respondent met in 1987 and commenced cohabitation on 18 February 1988. The child R was born on
   7 December that year. The parties resided together in various locations on the NSW Central Coast until they separated in 1995. After a short while, the subject child resided with her father and half brother and sister (her mother’s children by a prior relationship). The half brother commenced residing with the mother in 1997 and the subject child commenced to reside with the mother later that same year.

3. On 14 August 1997 the parties consented to orders made by the Local Court at G, which provide that the child should continue to reside with the mother. Later that same year the father commenced a relationship with one R J , now aged 36. In 1999 the father and his new partner moved to the P area, in the Central West of NSW, where they continue to reside. During that same year, the father claims that the child began to express the wish to reside with him.

4. The mother changed her address again in March 2000, moving back to the Central Coast. In April 2000, the child stayed with the father for school holiday contact. The father claims that the child said to him at the conclusion of the school holiday period that she did not want to return to live with her mother but wanted to stay living with him and his partner. He took her to see a social worker at P District Hospital on 2 May 2000 and did not return her to the mother. What he did do was to commence residence proceedings in the Family Court. The child returned to her mother and remained living with her until the dates of the hearing. The father has had contact with her as a result of interim orders made by the Family Court and later by the Federal Magistrates Court.

5. On 23 August 2000 the mother obtained an interim Apprehended Violence Order against the father at the G Local Court. The protected persons were the mother and the child.

The parties’ proposals and orders sought

1. The father seeks that the child should reside with him and with his partner in the Central West of NSW. He proposes that the mother should have reasonable contact. The mother opposes this, claiming that the child should continue to reside with her.

Issues

1. Each party claims that the child wishes to reside with them. The father casts doubts on the mother’s parenting capacity, claiming that the mother has neglected the child and subjected her to emotional abuse. The mother says that the father has physically abused both herself and her son by a previous relationship. She fears that he will sexually abuse the child, claiming that he had sexually abused her daughter from a prior relationship.

The evidence

1. The hearing took place over 5 days. Miss Baker, solicitor of P, appeared for the father. The mother was initially represented by Mr McKay, solicitor, but later appeared unrepresented. The child was represented by Mr Dunkley, solicitor.

2. The applicant father gave evidence and was cross-examined at some length. He said that the child had been asking to live with him for the last three years, and that his application to the court was made at her request. He denied assaulting the mother. He admitted an occasion when he assaulted the respondent’s son when the boy was about
   17 years old. He was charged, pleaded guilty and sentenced to a community service order.

3. He admitted other criminal convictions, including malicious injury to property and breaching an apprehended violence order. He denied that he had used violence to discipline his children from his earlier marriage. He said that he would “get cranky” and raise his voice to discipline them. He denied any sexual abuse of the children. One of his daughters is serving a prison sentence for murdering her mother, his former wife. He denied that he had sexually abused the daughter.

4. The father agreed that he been admitted to hospital in Rockhampton after he had “a breakdown”. He said that he had done “the wrong thing” and taken an overdose of medication but denied that it was because of allegations that he sexually abused his children. The father was asked about a claim made by the wife’s daughter that he had sexually assaulted her. He declined to answer that question. He was charged with sexually assaulting a young woman who was a baby sitter. The charge was dismissed after the complainant did not attend court.

5. He was cross-examined at some length about allegations made by the respondent’s daughter to the Department of Community Services that he had sexually interfered with her. He admitted that she had complained to the Police about his treatment of her. He specifically that he had done anything unlawful to her. He was charged with a sexual assault and the charge was dismissed.

6. The father’s proposals for the child if she were to live with him were that she would attend primary school in P. He would encourage her to have telephone contact with her mother on a regular basis.

7. The father’s de facto partner, R J gave evidence. In her affidavit of
   3 November 2000 she deposed to having a good relationship with the child but believed that the mother did not want the child to have any contact with her. In cross-examination by Mr McKay she denied saying that she would do anything for the father, including lying in court for him.

8. Her relationship with the child came mainly from school holiday contact. She said that the child wished to stay with her and the father.

9. The mother gave evidence and was cross-examined. She said that she had three prior marriages, one of which was annulled. She had had no contact with the father of her son A; the father now lives in Scotland. She said that she began cohabiting with the father in February 1988. She said that, from the start, the applicant did not like her son A, who is now aged 21. Her daughter R works on the NSW Central Coast at a location she did not wish to disclose. She had not asked her daughter to submit an affidavit for the purpose of these proceedings.

10. The mother said that the child had been returned to her in May 2000 after the father had initially not returned her from contact. Since then, the chid attends school on the Central Coast and goes out with friends.

11. The mother stated that she did have fears for the child’s safety if she were to live with the father. She denied that the child had expressed a wish to live with the father but said that the girl did tell lies. She said that she would prefer that the child continue to live with her but have school holiday contact with the father. Surprisingly, she said that she believed that she and the father could work out amicable arrangements. She believed that the child would be safe if supervised by the father’s de facto partner, although she expressed doubts that the partner would telephone her if there were a problem.

12. The mother went to agree that the child wanted to see her father. She originally thought that the child was at risk of being sexually abused but then admitted, in answer to a question by Mr Dunkley for the child, that she was not sure. She believed that it did not matter what she thought. She had thought that the father was engaging in sexual abuse of her two other daughters.

13. The mother went on with her assertion that the child was untruthful. She claimed that the child had largely made up everything she told the counsellor who prepared the Family Report. She said that the child told lies to her father and to people in authority.

14. The mother’s son from a previous marriage, A S gave oral evidence. He said that his half sister R had accused the father of “things which turned out not to be true anyway”. He asserted that he had “copped floggings” from the father. It was a cause for concern that he described thoughts of suicide and appeared to be depressed.

15. His evidence was to the effect that the child told people what she thought they wanted to hear. He confirmed his mother’s view that the child was untruthful and said that she was an expert at playing one parent off against the other, saying to Mr Dunkley, the child’s representative, “Mate, she passes that test with flying colours”. He said that he had spoken to the child the night before and she broke down and said that she could not choose between her parents. He was of the view that the child was feeling a degree of pressure.

16. Janette Buckingham, a court counsellor, prepared a Family Report. Ms Buckingham was cross-examined. The Family Report addressed the allegations of sexual abuse by the father. The counsellor, in her observation of the child, said there was nothing to suggest the existence of an abusive dynamic between the father and the child, or with the father’s de facto partner.

17. The report described the wishes of the child as being strongly in favour of living with her father. Ms Buckingham said that the child was “at an age and level of maturity where considerable weight should be given to her wishes. R appeared to have given this idea a great deal of thought” (Family Report pages 13 and 14). The report spoke highly of the father’s relationship with the child. The father was described as being focussed upon her and mindful of her inner state. Ms Buckingham described the father’s recognition of the child’s need to continue in her relationships with her mother and maternal family members. He has actively encouraged the child to continue these relationships.

18. It was also significant that the report found that the child had a strong positive relationship with the father’s de facto partner. Ms J was described as being aware of the child’s emotional needs and was a significant source of support for the child.

19. On the other hand, the report found that the child appears to be under some stress in residing with the child. The counsellor suggested that the mother’s ongoing anger towards the father and his de facto partner “has limited her capacity to recognise and respond to R’s need to maintain a close relationship with them” (at page 14).

Principles to be followed

1. Section 68F(2) of the Family Law Act 1975 sets out matters that are relevant for consideration by a court in determining what is in a child’s best interest. These matters include:

   a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;

   b)The nature of the relationship of the child with each of the child’s parents and with other persons;

   c)The likely effect of any changes in the child’s circumstances;

   d)The practical difficulty and expense of a child having contact with a parent;

   e)The capacity of each parent, or of any other person, to provide of the needs of the child, including emotional and intellectual needs;

   f)The child’s maturity, sex and background and any other characteristics of the child that the court thinks are relevant;

   g)The need to protect the child from physical or psychological harm;

   h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   i)Any family violence involving the child or a member of the child’s family;

   j)Any family violence order that applies to the child or a member of the child’s family;

   k)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; and

   l)Any other fact or circumstance that the court thinks is relevant.

2. The Full Court of the Family Court of Australia discussed the importance of considering the wishes of the child concerned in H v W (1995) FLC 92-598. It was held by Fogarty and Kay JJ that the wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day-to-day experience the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implications. Ultimately the overall welfare of the child is the determinant.

3. In that same case, Baker J held that a child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Furthermore, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given, particularly if the separate representative submits that the Court should give effect to such wishes. The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in an individual case. It would be helpful to the Court if counsellors, psychologists and psychiatrists endeavour to assess the level of maturity of each and the extent to which a child has been influenced by a parent in order that a child’s competence in regard to wishes can be properly considered by trial Judges.

Submissions

1. The child’s representative, Mr Dunkley, submitted that the Court should give weight to the wishes of the child as set out in the family Report, namely that she should Live with her father and Ms J. This submission was made on the proviso that the Court was satisfied that the child’s wishes had not changed and that there was not an unacceptable risk to the child by way of abuse. He referred to the mother’s assertions that the child’s wishes were not as set out in the Family Report, which was demonstrated by her decision to call her son to give evidence about the child’s wishes and her truthfulness, or lack of it.

2. Mr Dunkley submitted that there was no significant evidence of abuse as far as the child was concerned. He conceded that there was specific evidence that the father had physically the mother’s son A in what amounted to an outright assault which was dealt with by the Local Court. Whilst the mother suggested that there was a risk of abuse, she was still proposing that there should be block contact with the father, which tended to argue against her assertion of a risk of abuse.

3. The mother submitted that the child should continue to reside with her. She admitted that she had consented to orders whereby the father would have block contact with the child, but this was on the basis that the contact should be supervised by the father’s de facto partner, Ms J. Her view was that the supervision must be an actual supervision, however, not just a case of the lady sitting at home watching television.

4. The mother submitted that her relationship with the child was a very positive one, although she admitted that the child was confused. She claimed that the father had engaged in systematic child abuse over the years and is hiding the truth. She was critical of the court counsellor who prepared the report, saying that the interviews were not fair. She submitted that she would not have been approved by the Department of Community Services to be a foster carer if she were deficient as a parent.

5. Ms Baker, for the father, submitted that the proposals put forth by the child’s representative should be followed by the court. She put to the court that the Family Report supported her client’s claim, and that it was clear that the child felt comfortable in indicating her wishes to the counsellor.

Conclusions

1. This is a case where there have been allegations of abuse levelled at the father, which have been established in the case of the mother’s son A but have not been substantiated in respect of the child or of her half sisters. The violence directed to A did amount to assault and was dealt with by the Local Court. The allegations of sexual abuse, whilst disturbing, are not such as can lead the court to a conclusion that there is an unacceptable risk.

2. The Court must take into account any family violence involving the child or, in this case, a member of the child’s family (section 68F(2)(I)), and there is clear evidence of that relating to A. The Court must also take into account any family violence order that applies to the child or a member of the child’s family (section 68F(2)(j)), and there was certainly an interim order made by the G Local Court in August 2000 for the protection of the mother and the child. I am certainly of the view that the father must not use any form of physical chastisement on this child.

1. The Family Report contains a recommendation that the best interests of the child would be served by an order for her to reside with her father. Bearing in mind the allegations of the risk of sexual abuse, I take into account the comment by the Court counsellor that “There was nothing to suggest the existence of an abusive dynamic between R and Mr G and Ms J. R appeared relaxed and open with both” (Family Report page 13).

2. The Report clearly stated that it is the wish of this child to reside with her father:

   “The assessment found many indicators for this option. Firstly, it is consistent with the wishes of R. R is at an age and level of maturity where considerable weight should be given to her wishes. R appeared to have given this idea a great deal of thought. Her only reservation about this option is her fear that Ms M may then attempt to harm herself” (Report pages 13 and 14).

3. The counsellor’s view that it was the child’s strong wish to reside with her father was echoed by the child’s Representative. The evidence against that choice came from the mother and A, each of whom said that the child was manipulative and untruthful. Why, however, would a child untruthfully say that she wished to live with the parent with whom she was not currently living?

4. The child was nearly 12 years of age when the Family Report was prepared. I am satisfied that she has reached an age where her expressed wishes should be given considerable weight. I am also satisfied that the account of those wishes, given both by the Court counsellor and the Child’s Representative, is reliable. I am not satisfied that the mother’s criticism of the Family Report as “unfair” has been made out.

5. It is for these reasons that I am satisfied that this child should reside with her father, and should have regular contact with her mother.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: