H and B
[2003] FMCAfam 181
•30 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & B | [2003] FMCAfam 181 |
| FAMILY LAW – Children – Residence – Wishes of child – Separation of siblings – Children’s best interests Family Law Act 1975 (Cth) ss.65E, 60B, 68F(2) R & R: Children’s Wishes 2000 FLC 93-000 |
| Applicant: | A R H |
| Respondent: | V J B |
| File No: | LNM 2727 of 2002 |
| Delivered on: | 30 May 2003 |
| Delivered at: | Devonport |
| Hearing date: | 12 & 13 March 2003 |
| Submissions: | 21 March 2003 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T McGuire |
| Solicitors for the Applicant: | Temple-Smith & Barclay |
| Counsel for the Respondent: | Mr D Crampton |
| Solicitors for the Respondent: | Levis Stace & Cooper |
| Counsel for the Children’s Representative: | Mr P McVeity |
| Solicitors for the Children’s Representative: | McVeity & Associates |
ORDERS
That the children R J H born 16th July 1991, K P R H born 24th June 1992 and T J H born 28th June 1993 (“the children”) reside with the Father, A R H.
That the Mother V J B have contact with the children for two periods of not less than two weeks duration during the children’s school holidays each year and the Father and the Mother contribute equally to the costs of such contact.
That the Mother have reasonable telephone contact with the children and the Father make all reasonable efforts to facilitate such telephone contact.
That the Mother have such further contact as may be agreed between the parties from time to time.
That if the Children’s Representative considers it appropriate to do so he has the leave of the Court to provide a copy of the Reasons for Judgment in this matter to the child Raquel’s school social worker.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM 2727 of 2002
| A R H |
Applicant
And
| V J B |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve competing applicati.ons by A R H (“the Father”) and V J B (“the Mother”) for residence orders in relation to R J H born 16th July 1991 (“R”).
The proceedings were commenced on 23rd September 2002 when the Father filed an application seeking a final residence order in relation to R, and also in relation to K P H born 24th June 1992 (“K”) and T J H born 28th June 1993 (“T”). At that time, the Father sought the return of R from the Mother, who had retained her in the Albury/Wodonga area at the end of a period of contact. The Father also sought a Recovery Order.
The Mother had filed an Application in the State Magistrates Court at Wodonga. However, those proceedings do not appear to have been continued.
On 12th December 2002, the Mother filed a Response in this Court in which she sought residence orders in relation to all three children and certain orders for the Father to have contact. However, on 9th January 2003 she filed an Amended Response which essentially sought orders that R reside with her and K and T reside with the Father. She sought contact orders that would maximise contact between the children.
Background
The Father and the Mother were married on 15th February 1991. They separated in 1993 and were divorced in 1994. The three children referred to above are the children of their marriage.
When the parties’ separated the children resided initially with the Mother. However, that was not for a long period and the Mother returned the children to the Father.
In or about 1996 the Father was living in Devonport with the children and was offered full-time employment. It was agreed between the parties that the Mother would move from Launceston to Devonport and the children would live with her. There is a dispute between the parties in relation to how long the children then resided with their Mother. However, it appears that it was for less than one year. The Mother had some health problems and was not able to cope with the children, so the Father left his employment in order to look after them full-time again.
The Mother moved to Queensland in February 1997 to join her parents, who had moved there a few months earlier.
Both parties have remarried. The Father and his wife (“Mrs. H”) have been together for approximately seven years and they have another child, S V H (“S”). She is just six years old.
There does not appear to be any dispute in relation to how much face-to-face contact the Mother has had since she first moved to Queensland. That contact has been as follows:
a)with R for approximately eight weeks in the long summer school holiday in 1997/1998;
b)with K for two weeks during the May/June 1998 school holiday;
c)with T for two weeks during the September 1998 school holiday;
d)with R for approximately one month during the 1999/2000 summer school holiday;
e)with K for approximately six weeks during the long summer school holiday in 2000/2001;
f)with K and T together for a little more than two weeks in January/February 2002; and
g)with R for three weeks in September 2002.
It was during the last period of contact that the Mother retained R in her care, which caused the Father to file his Application on 23rd September 2002.
In support of his position, the Father relied upon his trial affidavit filed 25th February 2003 and an affidavit from his wife (Barbara Hope) filed on the same day.
In support of her position, the Mother relied upon her trial affidavit filed 7th March 2003 and an affidavit filed by her husband, K J B (“Mr. B”), filed 6th March 2003.
On 27th September 2002, I made interim orders that the three children R, K and T reside with the Father and that the Mother return R to the Father on or before 30th September 2002. At that time, I also made an order that all three children be separately represented.
The Separate Representative, Mr. McVeity filed an affidavit on 7th March 2003 by a school social worker, Ms. K L (“the school social worker”). Also before the Court was a Family Report by a psychologist John Joseph de Jong (“the psychologist”). That report dated 23rd January 2003 was ordered on 13th December 2002.
Relevant Law
Parenting orders arise in proceedings under Part VII of the Family Law Act 1975 (“the Act”). They are subject to section 65E of the Act which provides that in determining the outcome, the best interests of the child (or children) is the paramount consideration. That is clearly an overriding consideration.
Section 60B of the Act sets out the objects of Part VII and the principles underlying those objects. Those four principles are:
a)children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development
c)parents share duties and responsibilities covering the care, welfare and development of their children
d)parents should agree about the future parenting of their children.
Quite obviously, if the parents in this matter were able to agree about the future parenting of their children, these proceedings would have been unnecessary.
In determining what is in the best interests of a child, the Court is required to have regard to subsection (2) of section 68F of the Act. I shall therefore review the evidence in the light of that subsection.
Evidence & Findings
The Children’s Wishes
It is quite clear that R has expressed a clear wish to reside with her mother and, because of the expression of that wish, her mother did not return her to her father in September last year.
In his report, the psychologist states that R expressed a clear desire to live with her mother in Brisbane. (It should be pointed out here that the Mother is now residing in the Brisbane area with her husband, who is in the Australian Army.)
It was clear that R told the psychologist that she was having some difficulties in her relationship with her stepmother, Mrs. H. She also expressed feelings of being abandoned by her father because he did not intervene sufficiently in the relationship between her and her stepmother.
When the psychologist interviewed him, the child K acknowledged that R would like to live with her mother very much. He also stated that he would choose to live in Brisbane if he had the choice and gave a range of reasons that included various material advantages, such as spa baths and water pistols.
When the psychologist interviewed T, she indicated a clear preference to live with her father in Tasmania and she would like R to stay as well. She indicated that she would find it difficult to be separated from her sister but she also indicated that she would be happy to visit her mother with R and K more often.
The psychologist in his report set out the following as “key findings”:
a)all three children expressed a desire for more frequent contact with their mother and the mother and (Mr. B).
b)while both (parents) have limited financial means, there appears to be scope for the parties to more effectively fulfil the children’s need for further contact
c)(R) has expressed a consistent and genuine desire to live with her mother in Brisbane. She appears to comprehend the implications of this change in her living circumstances. She would be upset by the separation from her siblings and the father, but the overall desire to live in Brisbane seems to be more compelling. This motivation appears to reflect both a genuine desire to strengthen her relationship with her mother, and difficulty in her relationship with her stepmother and father
d)(K) expressed a preference to live in Brisbane, although it did not appear to be so strongly held and was attributed to some material rewards. Nonetheless, that he voluntarily expressed a preference at all is significant, and it is very possible that (K’s) desire to live with his mother will increase as he matures. Care will need to be taken to be sensitive and responsive to this possibility
e)(T) expressed a preference to remain with (the father and Mrs. H), but also expressed apprehension at the prospect of being separated from her siblings. She found the first contact visit on her own difficult and would find joint contact more easy.
The school social worker first became involved with R during the first term in 2001. The primary school that R was attending had operated a programme called “Friends”, in which children who are exhibiting some warning signs of anxiety (as perceived by their teachers) are invited to participate in order to develop coping skills. Towards the end of the programme, R approached the school social worker about undefined problems that she had at home. The school social worker explained that she would be happy to talk to her, but needed her father’s permission. R was reluctant to seek that permission. However, R subsequently indicated to the school social worker that she wished to have more contact with her mother and she also expressed a desire to live with her mother.
It is important to note that paragraph (a) of section 68F(2) contains the words:
“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”.
In this particular case, R is eleven years old.
The school social worker’s notes show that during a session on 6th November 2002, R stated that she wanted to live with her mother. Those notes show that R indicated that her mother was more fun because of “outings”, “pool”, “restaurants”, “mum plays with her” and “not as many jobs”. The school social worker made the comment in her notes “some idealisation”.
It is also relevant that on that day R referred to an alleged incident in which she said that Mrs. H had put the children’s hands into boiling water on some previous occasion. (Mrs. H vigorously denied that.) However, the notation by the school social worker was that R had stated that there were no burns or blisters after putting the children’s hands straight in and out of boiling water. That suggests to me that R did not have a reasonable level of understanding about the incident that she related. As well as idealisation of her mother, there appears to be some demonisation of her stepmother.
The Nature of the Children’s Relationships
The Court is required to consider the nature of the child’s relationship with each of the parents and with other persons.
It is quite clear that the children all have a good relationship with their father. However, R has clearly expressed a reservation to the psychologist that suggests that she feels abandoned by her father because he has not intervened to protect her from her stepmother. Notwithstanding this, I gained the clear impression from the Father’s evidence that there is still a strong and healthy relationship between R and himself.
The children’s relationships with their mother are more problematic. It is clear from the psychologist’s report that K believes that his mother favours R over the other two children. He was resentful of the much longer time that the Mother speaks to R on the telephone and that the Mother appeared to want to have her in Brisbane but not the other two children.
T appears to have difficult memories of the first occasion on which she visited her mother, but she was happier visiting her the second time. It is important to note however that T has only spent approximately four and half weeks in total with her mother since February 1997, whereas K has spent approximately ten and a half weeks with his mother.
R has spent approximately sixteen weeks with her mother since her mother left for Queensland in February 1997. It is therefore not surprising that R appears to have a better relationship with her mother than either K or T.
The children’s relationships with Mrs. H are also problematic. It is clear that they resent having to do chores and they do not like the imposition of punishment. (I shall deal with the question of punishment below.)
Mrs. H is a little more positive in her view of the relationship than the children, and particularly R. She says that it is her firm view that she and each of the children have a close relationship.
In relation to R, she says that there are no problems in the relationship and that they do things such as shopping, cooking and talking together. She says that they spend “quality time” together. She says that it would not be reasonably honest to say that there have not been times when the “stepmother” relationship has been used against her by each of the children. However, she says such incidents are rare.
In my view, it is quite normal for children in a step-parent relationship to remind the step-parent from time to time of that step-parent’s position with statements like “you are not my mother”. The children in this particular matter seem to be no different.
Having read all the material before the Court and having seen Mrs. H give evidence, I am of the view that she has a normal, loving and healthy relationship with her husband’s three children, notwithstanding that she is their stepmother and not their natural mother.
The children’s relationship with Mr. B must be seen in the light of the fact that they have only spent a very limited time with him during contact visits. However, I accept that those visits have been positive experiences as far as their relationship between them and Mr. B are concerned.
The children also have positive relationships with their half-sister, S. Although she is only just six years old, it is clear from the evidence that they have normal and loving sibling relationships.
The Likely Effect of Any Changes in the Children’s Circumstances
It should be remembered that the only change in the children’s circumstances that the Mother is seeking in her application is that R reside with her. The other two children will continue to reside with the father. This will mean that there will be a separation of siblings and, generally, Courts are loathe to order the separation of siblings without very good reasons.
In this particular case it is clear that T would find it very difficult to be separated from R. K did not appear to give a clear indication of his views about a separation from R.
It is significant that R, K and T, who are all very close in age, have predominantly been cared for by their father, with the assistance of Mrs. H, for approximately seven years. Further, S has been a member of their household for six of those years.
It is therefore easy to come to the conclusion that there will be a significant disruption to R, and to the household generally, if R goes to live with her mother. However, because of her age and the “idealisation” of her mother that is referred to above, it is my view that R has not properly understood the effects of separation from the family with whom she has been living for the last seven years.
Practical Difficulties and Expense Associated with Contact
Irrespective of the way that this matter is resolved, there will be difficulties and expense associated with contact. This is because the Mother and her husband currently live in Queensland and the Father and his family live in Tasmania. That results in significant expense in relation to contact. This is probably why the Mother has had so little contact with the children over the last seven years. It is clear that the children have never visited her as a group, and on only one occasion did two of the children go together. On all other occasions, only one child has travelled to be with her.
The Father says that the children are close and he would like to see all three children travel together. It is his view that that could happen up to three times a year.
In the past, the cost of travel has been shared equally between the parties. The parties appear to agree that that should continue. However, the Father suggests that contact should be three times per year and the Mother appeared to be suggesting something less than that. Notwithstanding this, I do not see that there is great difference between the parties in relation to contact, the main dispute is whether R should live with her mother or not.
Capacity of the Parents to Meet the Children’s Needs
In this matter, this aspect of section 68F(2) requires some serious consideration.
It is clear that the Father has been providing well for the needs of these three children since late 1996. It is also clear that he has done so with very little support from the Mother.
The Mother seeks to change this in relation to R, so the Court needs to look carefully at her ability to meet R’s needs in particular, but also those of the other children.
The Mother’s counsel in his submissions to me suggested that there was nothing in the material to indicate that she is unable to cope. However, it is my view that the Court’s consideration of the Mother’s capacity needs to be a little more searching.
The Mother has a medical condition called “Fibromyalgia Syndrome”, which she says:
“is a disease that causes pain in the muscles and has some other side effects”.
She says that she takes medication that minimises the disease and its effects. She receives a disability pension for her condition.
When cross-examined by the Father’s counsel, the Mother admitted that she was taking an anti-depressant and she admitted that Fibromyalgia Syndrome causes an increased insensitivity to pain, consistent tiredness and lack of energy, trouble sleeping and the like. She also conceded that the symptoms could be made worse by stress.
Although the Mother says that her condition has been stable over the last eighteen months, she did not produce any medical evidence to confirm the diagnosis or the effects of that medical condition.
It is also significant in my view that, since October 1996, the Mother has not had any of the children for longer than eight weeks. It is also clear that prior to October 1996 there were occasions when she was unable to cope with the children.
Consequently, the Court must have some concerns about the Mother’s capacity to cope with caring for R full-time.
The need to protect the children from physical or psychological harm caused by abuse, ill-treatment, violence or other behaviour
Allegations have been made about the use of punishment of a physical nature by the Father, and in particular Mrs. H.
I have referred above to the allegation by R that Mrs. H placed the hands of the other two children in boiling water. However, it is clear that she also stated that there were no blisters or burns. It is clear to me that R is either very mistaken or is exaggerating significantly about that incident, because it would be impossible to put a child’s hand into boiling water for even the briefest moment without causing significant injury.
There is also an allegation that in the Father’s household a wooden spoon has been used to smack the children as a disciplinary measure. That allegation is levelled particularly at Mrs. H. In his report, the psychologist indicated that Mrs. H had admitted using the wooden spoon to smack the children. She stated that it had been used more often in the past when the children were younger and is still used with the younger children. She said that R had not been smacked with the wooden spoon for about twelve months. She conceded that the wooden spoon is still using it as a threat by waving it about and by sometimes banging it on the bench to amplify a point.
When she was cross-examined, Mrs. H. appeared to play down the use of the wooden spoon and appeared to suggest that the children had exaggerated its use. However, I am of the view that her admissions to psychologist are probably more accurate. Notwithstanding this, I am of the view that the use of the wooden spoon in the household of the Father is not excessive and its threatened use is probably quite effective.
The psychologist says that Mrs. H. acknowledged administering curry powder on a spoon to tackle bad language with K and T. When she was cross-examined, she stated that she had made it plain that she had never put the curry powder in the children’s mouths. Clearly, her inference was that it was merely threatened with a view to preventing any more bad language. However, when the psychologist was cross-examined, it was his recollection that Mrs. H had said that the curry powder had been actually administered and not just threatened. In my view, that version is the more likely because the psychologist also stated that the Father had said that he had used soap on the tongues of the children to prevent bad language.
Washing out a child’s mouth with soap for swearing is certainly an old fashioned method of discipline, as are the use of curry powder or mustard. None of these methods are in vogue today, but it is my view that there has not been any lasting physical or psychological harm caused by the disciplinary measures used in the Father’s household.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
I have no evidence before me that would suggest that I should be critical of either parent’s attitude towards the children. The Mother’s separation from the children has clearly come about because of health problems that she experienced in the past and not as a result of any desire on her part not to be involved in the children’s lives.
When the Mother was not able to cope, the Father displayed a perfectly proper attitude to raising children and he took over the sole responsibility for their care. In my view, he continues to display that very healthy attitude towards the responsibilities of parenthood.
There are other factors referred to in section 68F(2), however they do not appear to be particularly relevant to this particular matter.
Conclusion
Throughout the hearing of this matter, one could have been forgiven for thinking that the only issue before the Court was R’s wish to live with her mother. However, it is clear from R & R: Children’s Wishes 2000 FLC 93-000, that the wishes of a child is only one factor to take into account under section 68F(2). Indeed, that one factor, being the child’s wish needs to be looked at in the light of other factors such as the child’s maturity or level of understanding.
R has said consistently that she wishes to reside with her mother. However, it is clear that in forming her wishes, she has idealised her mother, and to some extent, demonised her stepmother.
It should be remembered that R is still only eleven years old and she does not appear to have given very serious consideration to the consequent separation from her father and her three siblings, two of whom are very close to her in age.
It is also clear to me that the Mother has, perhaps unwittingly, created situations where the child was likely to idealise life with her. Reference was made by the school social worker to “more fun” and to “outings”, “pool”, “restaurants” and the like. Indeed, it became clear from her oral evidence, that the Mother had taken R on a skiing trip during the last contact period. I do not mention that as a criticism of the Mother. She and her husband were living in the Albury/Wodonga area at the time and the ski fields would have been relatively close. However, that would have created an anticipation of fun with the Mother in the mind of an eleven year old child, especially when compared with the more tedious existence at home, where daily chores have to be completed.
I must also weigh up the wishes of this particular eleven year old child against the concerns the Court must have for the ability of the Mother to care for a child full-time. In this regard, she admits to having health problems but she has not provided the Court with any medical evidence that would give the Court confidence that her health problems are under control. Further, in more than six years, the Mother has not cared for any of the children for a period of longer than eight weeks.
I must also take into account the adverse affects of separating R from her father, her stepmother, her two full siblings and her half sibling. In my view, the advantages of acceding to her wish are outweighed by the disadvantages of separating her from the other members of her family with whom she has lived for more than six years.
I must also take into account the fact that these proceedings do not just relate to R – they are about the welfare of all three children of the Father and the Mother. It is quite clear to me that the removal of R from the household will have a disadvantageous affect on the other two children, and in particular on T.
The Children’s Representative submitted to me that I should accede to R’s wishes on a trial basis of a year or so with regular contact between the children. It is his view that I could make an interim order and bring the matter back before the Court at some later stage. I do not agree with that approach because it is my view that these children (and the parents) deserve some certainty in my decision. Interim orders on a “trial basis” would only continue the uncertainty that currently exists in both households.
My clear view is that all three children should continue to reside with their Father. However, it is also my view that R will probably require some counselling to assist her to come to terms with my decision in this matter. It was clear to me that the school social worker has a good relationship with R and she may be able to assist in this regard. Clearly, the Father was quite happy for that to occur.
I will therefore make an order that will enable the Children’s Representative to provide a copy of these Reasons to the school social worker if he considers it appropriate.
In relation to contact, I note that the Father is of the view that contact should occur with all three children three times a year, whereas the Mother appeared to be of the view that twice per year was sufficient. In the circumstances, it is my intention to order that the children have contact with their mother twice per year at the joint expense of the parties, but also that there be contact at such other times as may be agreed. That will allow for additional contact if the parties can agree, and in that regard, I am given confidence from the fact that these parties have been able to arrange contact at their joint expense in the past without any need for orders.
It was clear from the evidence that the Mother has had more telephone contact with the children than the Father was prepared to concede, and I have no doubt that telephone contact will continue on a reasonable basis. It is not my intention to specify how frequently that should be. However, I will order that there be reasonable telephone contact and that the Father should facilitate it. That will allow the children to continue to have the benefit of regular telephone contact with their mother.
In relation to past telephone contact, it seems clear to me that the younger two children perceive an inequality of time that favours R. I therefore suggest to the Mother that she keep that in mind in relation to telephone contact. While there are likely to be occasions when she will speak more to one child than to the other two, she needs to be aware that if it is consistent, it can create an impression of favouritism.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Roberts FM
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