GJ & KJ - [2005] FMCAfam 544

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GJ & KJ

[2005] FMCAfam 544

FAMILY LAW – Children – interim residence – where mother proposes 9 year old child returns to reside with her in former matrimonial home – pre separation mother is child’s primary carer – child wishes to reside with father and in weeks since separation has settled into a new school – risks to child considered – court unable to determine contentious issues pending full hearing – mother obtains interim residence order.

Family Law Act 1975, s.68F

Cowling (1998) FLC 92-801

Applicant:

Respondent:

File No:

PAM2728 of 2005

Delivered on:

27 July 2005

Delivered at:

Parramatta

Hearing Date:

26 July 2005

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr Kearney

Solicitors for the Applicant:

R J Russell Solicitors

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Fishburn Watson O’Brien

Solicitor advocate for the Child’s representative:

Mr Tilley

Solicitors for the Child’s representative:

Maclarens

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS:

The child SARA (not her real name) born in 1996 reside with the mother.
The child have contact with the father as follows:
(a)From after school Friday until 6 pm Sunday on the weekend commencing 5 August 2005. Contact pursuant to this order shall take place on the mid-north coast area.
(b)Commencing Friday 19 August 2005 and each fourth weekend thereafter from after school Friday until 6 pm Sunday. Contact pursuant to this order shall take place in Sydney. The mother shall pay the child’s return airfares to Sydney on this and each alternate occasion that contact takes place in Sydney. The father shall pay the costs of the child’s return airfare on each other occasion.
(c)From after school Friday until 6 pm Sunday weekend commencing 2 September 2005 and each fourth weekend thereafter. Contact in accordance with this order shall be exercised on the mid-central coast area.
(d)Provided the father has taken leave from work, for the first ten days of each mid-year school holiday period, to commence at
12 noon on the Saturday immediately following the conclusion of school. The father shall collect the child from the maternal grandparents’ residence at the commencement of contact and the mother shall collect the child from her grandparent’s residence at Terrigal at the conclusion of contact. Holiday contact shall conclude at 12 noon.
(e)By telephone between 7 pm and 7.30 pm on each alternate day and the mother is to ensure that Sara is available to receive such calls. If Sara is unavailable the mother is to ensure that the child returns the father’s call later that evening.
Each of the parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said child including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the children.
Neither party shall denigrate the other party or discuss these proceedings or cause or permit any person to do so in the presence of the child.
The matter is listed for final hearing before me at 10.00 am on
19 December 2005 as a three day matter.
I DIRECT that the applicant file and serve an amended application by
9 September 2005.
I DIRECT that the respondent file and serve an amended response within a further twenty-one (21) days thereafter.
Pursuant to section 62G of the Family Law Act 1975 a Family Report be prepared for the court by a families and child consultant nominated by the manager of Mediation of this registry.
The parties and their legal representatives attend a conciliation conference in this Registry at 9.15 am on 24 October 2005.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 these particulars are included in these orders.
The parties have liberty to apply for further orders and directions in relation to the matter on 72 hours notice if the child is not returned to her mother by next Monday.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2728 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

These are competing interim residence applications concerning with whom the parties' nine year old daughter, Sara (not her real name), shall live. Sara's parents each want her to live with them. Sara is an only child. The parties agree the court will determine these applications starting from the premise that as at the date of hearing Sara is not living in a well settled environment within the meaning discussed in Cowling (1998) FLC 92-801. With this approach I am in agreement.
The parties agree that the court must determine the matter conducting a limited evaluation of relevant section 68F(2) factors. Because of the nature of interim proceedings, in particular, that the parties do not usually have the opportunity for cross-examination the court is unable to make firm findings on contentious factual matters. As will be seen, in hearings with the types of matters raised in the parties' cases, this makes determining the matter quite difficult.

Short history

The father was born in November 1969.
The mother was born in June 1970.
The parties married in May 1992.
Sara was born in May 1996.
The parties separated in June 2005.

Background facts

From the time the parties married until about eight weeks prior to separation the father was in full time employment. When the parties moved to the Coffs Harbour region in December 2003 the father had a short period of unemployment.
It appears that the mother's employment continued until Sara's birth in 1996. Thereafter the mother stopped paid work and cared for Sara full time until the child was about 3 years old. When Sara was 3 the mother returned to work part time. There is no challenge to the mother's evidence that until Sara started school the father was involved in Sara's life in a relatively limited capacity. By this I mean that he spent time with his daughter in the evening for a short time before she went to bed, spending more time with her on weekends. As Sara got older, outside of school hours the mother continued to be primarily responsible for Sara's care. This meant the mother was responsible for helping Sara with her homework, cooking her evening meals, helping her get ready for school and supervising her play with friends. It was the mother who was actively involved in Sara's extra curricular and school activities, to a far greater extent than the father’s work commitments enabled him to be.
The parties lived with Sara in Sydney, at Seven Hills and Camden, from the time Sara was born until late 2003. In late 2003 the family moved into a flat at the rear of the mother's parents' cattle property in Orara Valley. The property is about 15 minutes drive from town. The nearest large town appears to be Coffs Harbour. The parties lived with the mother's parents until April 2004 when the parties purchased a 103 acre property also at Orara Valley. Upon their move north Sara attended school at the local Public School. Sara settled into school and she has been doing well academically. She established a network of friends at school and at her pony club.
It appears that following a few months unemployment after their arrival in Orara Valley, in about April 2004 the father secured full time employment. Although he changed employers, he worked full time from April 2004 until 10 May 2005.
On 1 June 2005 the father took Sara and left the family property. Since then he and Sara have resided with the father's parents at Seven Hills in Sydney. Upon their return to Sydney the father enrolled Sara in a local Public School where she seems to have settled in well. This is the first time that Sara has attended this school.
Having arrived in Sydney on 8 June 2005 the father commenced these proceedings.
On 6 July 2005 the parties attended Legal Aid mediation but were unable to agree on interim parenting arrangements.
This matter was listed for interim hearing on 15 July 2005. That day I expressed concern that, given the father’s allegations concerning the mother's psychiatric well being, including alleged suicide attempts, I did not have any form of psychological or psychiatric evidence. Accordingly the matter was adjourned to obtain this type of evidence. By consent, I made interim orders which dealt with the child’s situation pending the adjourned hearing date. Essentially these orders provided the child would remain living with her father and exercise supervised contact to her mother at a relative’s home.
Between 15 and 18 July 2005, Sara had contact with her mother at the mother's grandparent’s home at Terrigal. All parties agreed that this contact went well. As required by the interim orders she also had regular telephone contact.

Determining the child's best interests

The child's representative made it clear Sara wants to live with her father. Having just turned 9 years old she is entitled to have her wishes afforded weight. Sara is a socially and academically well adjusted child who may well be somewhat more mature than her stated years. In the lead up to her parents' separation Sara told her parents and maternal grandparents that, if her parents separated, she wanted to live with her father. This is a desire she has maintained for at least a few months. This is apparent from the conversation the mother says was had prior to separation. She said to Sara “If you want to go with your father back to Sydney I can't stop you but I don't want you to go. I want you to stay with me, Sara.” Although this is the mother's comment, I infer that as part of a larger conversation Sara had been telling her mother, either directly or by implication that she wanted to return with her father to Sydney.
The maternal grandmother deposes to a conversation on 14 January 2005 in which Sara told her mother and grandmother that if she is not allowed to live with her father she will stay with them until she is 14 years old. Upon reaching 14, when old enough in Sara's eyes to make her own decisions she plans to live with her father. Basically, in her view, while they may legally be able to hold her back, when she is 14 she will do as she wants. While Sara's wishes carry weight I agree with Ms Davidson's opinion that presently Sara may also feel torn between her parents. This is apparent from her tears at the end of weekend contact on 18 July 2005 with her mother and her repeated reference to missing her mother. One must not overlook that this is a relatively recent separation and by both parties' account it has been a volatile one and the volatility has been played out, regrettably, in Sara's presence.
The mother says that the court should be cautious about Sara's wishes to be with her father. Her counsel emphasised the evidence in her case which suggests the father has been placing Sara under pressure for quite some time to side with him in the looming separation. Thus it is submitted that there is evidence that the child's wishes may well be an expression of giving in to the parent who places her under the greatest negative influence. In this regard, the maternal grandmother's evidence contained in paragraph 15 of her affidavit cannot be overlooked. These matters demonstrate that only with time and a family report will the court learn whether Sara's wishes are strongly held views which she has formed after weighing up, for herself, the advantages of her parents' respective proposals and deciding for herself which is best for her. Or alternatively perhaps a transient response to a traumatic family breakdown.
I indicated during submissions yesterday afternoon that this is a matter where I was particularly concerned about the child’s relationships. The issue particularly focuses on whether there is a clearly identified primary carer. There is no doubt that until eight weeks prior to separation Sara's mother was her primary carer. Day in and day out, for nearly all of this child's life it has been her mother who has provided the majority of the child's care. That Sara has achieved as well as both parties agree she has, academically and socially suggests that the level of care she received from her mother has been generally up to the mark.
Sara is described by both parents as respectful towards peers and adults alike. She enjoys pony club and other extra curricular activities. It seems she has good standards of social citizenship. These things are not achieved overnight. They are a reflection of committed parenting by both parents. Sara has established friendship with a girl named Catriona (not he real name), who lives on an adjacent property, and has two particular girlfriends, both named Rebekah (not their real names), with whom she has regular contact. When a child is performing as well as Sara has been, not only must the parental care she has received have been capable parenting but it means Sara perceives this is so. It flows that with her general overall sound social and academic adjustment Sara, at least until recently, felt nurtured and supported by her primary carer, that is, her mother. This is a matter to which I attach significant weight.
In coming to this view I do not ignore the complementary role the father has had in Sara's life. Although he has not been her primary carer he has been part of her daily existence. The family seems to have organised itself along fairly traditional lines, with the mother taking primary responsibility for child care and the father taking primary responsibility for providing for the family financially. Neither role was exclusive however. There is no doubt, even on the mother's case, that the father was involved in Sara's care every day. No doubt his active support for the child and the parental relationship has contributed to Sara's overall sound adjustment. The unarguable fact, however, is that his role in this regard is, until he stopped paid work, substantially less than the role undertaken by the mother. This is a matter to which I attach considerable weight.
If the mother's application succeeds Sara will return to Orara Valley, to the home she has lived in for the last 12 months or so and the area that she has lived in since December 2003. She will return to a school that apparently has served her well. She will return to friends and a social network that she appears to have enjoyed. Neither party makes any adverse comment about the rhythm of Sara's life during the period that the child lived in Orara Valley. To all intents and purposes, but for the father's absence from the home, Sara's life in her mother's care will match that which existed prior to separation.
The father proposes that he will continue to reside in Sydney with his parents and sister. Earlier in Sara's life she lived in this home for about 12 months. The sense I have is that this occurred quite some years ago as it coincided with the period the parties were building the home they lived in prior to moving to Orara Valley. Irrespective of this, it is plain that Sara has a good relationship with her paternal relatives and that the home environment in her father's parents' home is one with which she is familiar and comfortable. The father has enrolled Sara in a school which she has attended for about six weeks. While she has settled in well and established new friends, her relationship with this educational institution and new friends cannot be anywhere near as significant as the relationships and friendships she had at school in Orara Valley.
The father says that pending the final hearing he will continue to reside with his parents. He has obtained work and now works on a full time basis five days a week. His father takes Sara to and from school. Thus, even if the father is unable to personally attend to Sara's care, he has appropriate arrangements in place which will ensure her physical needs are met.
In Cowling the Full Court held that the court should examine the duration of a child's living arrangements. The father’s arrangements are of six weeks duration. By comparison, the arrangements the mother seeks to resume are of considerably longer duration. On balance, the living arrangements she proposes continues a settled arrangement that has, by both parties' account, served the child well. This matter weighs significantly in favour of the mother's application for interim residence.
The children's representative and the father's counsel each submitted that if the court orders the child to return to her mother at Orara Valley, this imposes possibly unnecessary changes to the child's living arrangements. This arises because there will inevitably be a defended hearing and if the child returns to Orara Valley, with the father ultimately securing a final residence order, she will leave Orara Valley and return to Sydney. It is submitted this is potentially highly disruptive to the child. This argument carries little weight given that the father’s arrangements have been in situ for only a short period. Far greater weight must be given to arrangements that have lasted for well over a year. Sara has shown by settling into the school in Sydney she is a child who adapts quite readily to change. On the evidence before me, one would expect that she will resume school in Orara Valley and her friendships and social activities in the region with minor, if any, adjustment difficulties.
A key issue concerns risk of harm to the child. Linked with the risk issue is whether in her mother's care, in particular, Sara is exposed to an unacceptable risk of emotional and psychological harm, perhaps also physical harm. The threat of physical harm arises as a consequence of the father's allegations that the mother has thrice threatened suicide.
The father says that on 14 January 2005 the mother threatened to hang herself. Sara, fortunately, did not see this incident. An argument developed later that day when the mother's parents arrived at the father's behest. An incident developed during which the maternal grandmother hit the father. Whether she hit him as extensively as he says I cannot determine. The mother denies that she threatened to hang herself on 14 January 2005. She similarly denies the father's allegations that on 15 February 2005 she threatened to take her life. The father says during an argument on 15 February 2005 the mother said: “If you do not fuck off I will hang myself with a rope”. On

21 April 2005 the father says that the mother again told him, using colourful language, to leave or she would drive the car into a tree. When he did not leave, she jumped into a car and drove towards a tree at the front of the property. Before the mother reached the tree she stopped, whereupon she threatened to drive off a nearby bridge. Whether she made any attempt to do so the father does not say.
Her final threat was made in May 2005 to the effect that, if the father would not leave, the mother said she would kill herself. The father says the mother held a knife to her wrist threatening to kill herself. The mother strongly disputes that she has threatened to kill herself. She emphasises this was a tumultuous period, with angry and aggressive outbursts by the father constantly flung at her and probably, I infer, by her towards him. For example the mother says in May 2005, the father drove at her at a high speed. In the same month the father drove his vehicle, pulling her mother to the ground when doing so and ran over her mother's foot. She says that she was subjected to, effectively, a relentless campaign of abusive threats directed towards her and her family and their pets. Thus the court will accept that when she wrote notes on 22 November 2004, 20 February 2005 and 27 April 2005, which are attached to the father's affidavit, saying that he could have basically all of their possessions and Sara these were written under extreme pressure and duress. There is no doubt the mother wrote these notes. The fact of the notes is suggestive itself of profound emotional distress at least at the times they were written. The cause of the emotional distress may or may not be the father's behaviour towards the mother.

Much of the evidence in the case goes to the parties' accusations and counter accusations of threats to harm each other, others or themselves during this period. This no doubt, if the matter goes to trial, will be a real focus of cross-examination. As is often the case in family law proceedings, there are few witnesses available who can assist the court to determine the truth in these instances. The reality is in this case I have little to go by in deciding whether to prefer one party's account rather than the other. On balance I am not satisfied that I can do so. This is where Ms Davidson’s report becomes significant. Ms Davidson, a registered psychologist, received the affidavits filed in these proceedings, interviewed the wife and administered a Personal Assessment Inventory (PAI) to her. She concludes: “Suicidal ideation. This scale provides an assessment of thoughts and ideas related to death and suicide. KJ reported responses were in the average range and the manual describes those fitting in this range as reflecting a person who has few thoughts about death or suicide”.
Mr Kearney for the father said the court should give Ms Davidson's opinion little weight. This is because in some parts she relied on material not proved in the hearing. Plainly this is so. However, in relation to her conclusion concerning suicidal ideation, this is drawn from the testing Ms Davidson herself administered. She considers further the issue of the mother's risk to herself via suicide after reflecting on the mother's presentation and history given to her. Parts of that history, no doubt, are contentious and cannot be relied on in these proceedings. However, Ms Davidson's opinion is particularly reliant upon the mother's presentation during her interview and the PAI results. Ms Davidson wrote: “She [the mother] appeared to be calm throughout the interview, had no trembling and appeared to have no thought disorder, responding within context to question. The concentration and affect appeared to be appropriate”.
The net effect is that Ms Davidson is satisfied the risk that the mother may attempt suicide is low and that presently the mother does not pose a risk to her daughter. I give this aspect of her opinion considerable weight. It moderates to a considerable degree the risk alleged by the father that the mother presents to the child. Relevantly, if the father believed that the mother presented a risk to the child as a consequence of some form of suicidal ideation, one would have expected to see a more pro-active response by him to the risk that the child was in. The father says this behaviour commenced in January 2005, yet he did not take time from work. He continued to work full time until May 2005. If the father believed that on 14 January, 15 February and 21 April 2005 the mother posed a serious risk to herself or her daughter, I would have expected to see something more substantial from the father than merely seeking legal advice.
On the balance I am satisfied that if the child returns to her mother's care the risk to the child that she will be exposed to the type of behaviour the father complains of is low. Similarly it seems that there is a low risk, now that the parties are separated, that if the child remains in her father's care the risk that she will be exposed to the type of behaviour the mother complains of in the lead up to separation is low.
The conclusion I have come to is that this is a case where quite clearly there is a long history of competent, almost lifelong primary care by the mother for the child. That is the pivotal matter which, when linked with the mother's proposal to continue the pre-separation arrangements for the child's care, satisfies me I should make orders in the mother's favour, vis a vis interim residence, and contact vis a vis, the father.
The child's wishes have not been overlooked, but for the reasons I have given I am not satisfied that this is a case where, at this time, the child's wishes should have greater prominence than the care arrangements established throughout the child's life and I will order accordingly. This, I am satisfied, is in the child's best interests pending the final hearing.
In terms of the father’s contact I invite further submissions. However, as a general approach it seems the proper course is to reverse the arrangements proposed if the father’s interim residence application succeeded. There are obvious geographical difficulties while the parties live so far apart. Both parties agree Sara should not travel by car long distances each alternate weekend. Perhaps travel by air is an option if the parties share some of the costs.
For these reasons I make orders as identified at the start of this judgment.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 10 October 2005