Hearn and Sempers

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEARN & SEMPERS

[2017] FCCA 3357

Catchwords
FAMILY LAW – Parenting – Child aged 13 – where the child’s mother died suddenly in a car accident about twelve months ago – where the child’s natural father, who has spent regular time with the child throughout the child’s life, would like the child to live with him – where the child would prefer to remain with his stepfather and younger siblings – orders made in accordance with the child’s wishes.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65C

Aldridge & Keaton (2009) FLC 93-421

Mazorski & Albright (2007) 37 Fam LR 518

Rice & Miller (1993) FLC 92-415

Applicant:

MR HEARN

Respondent:

MR SEMPERS

File Number:

BRC 12670 of 2016

Judgment of:

Judge Terry

Hearing dates:

23 & 24 November & 8 December 2017

Date of Last Submission:

8 December 2017

Delivered at:

Newcastle

Delivered on:

13 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr S Priestley

Solicitors for the Applicant:

Thompson Wheelahan and Hampshire

Counsel for the Respondent:

Mr O’Brien

Solicitors for the Respondent:

Slater & Gordon

ORDERS

All existing orders concerning [X] born …2004 (“the child”) are discharged.
The father MR HEARN (“the father”) and the step father MR SEMPERS (“the step-father”) shall have equal shared parental responsibility for the child.
The child shall live with the step-father.
The child shall spend time with the father:
(a)Each 3^rd weekend during school terms commencing on the 1^st weekend of each school term from 6.00pm on Friday until 3.00pm on Sunday;
(b)For one half of all NSW school holiday periods being the first half in odd numbered years from the conclusion of school until 12.00pm on the middle Saturday of each school holiday period and the second half in even numbered years from 12.00pm on the middle Saturday of each school holiday period until 12.00pm on the Sunday immediately prior to the child’s return to school; and
(c)At such additional or alternate times as may be agreed between the parties in writing.
Changeover shall take place :
(a)For the purposes of Order 4(a) by the father collecting the child from school at the commencement of the time and returning the child to the step-father’s home at the conclusion of the time;
(b)For the purposes of order 4(b) by the parties meeting at the Service Station, corner of Road 5, Town A;
(c)For the purposes of order 4(c), as agreed between the parties when the alternate or additional time is organised.
The child shall spend time with the paternal grandmother on two (2) weekends each school term from the conclusion of school on Friday until 3.00pm on Sunday with the paternal grandmother to collect the child from school at the commencement of the time and return the child to the step-father’s home at the conclusion of the time.
The weekends the child spends with the paternal grandmother pursuant to Order 6 shall be the 3^rd and the 6^th weekends unless otherwise agreed between the step-father and paternal grandmother in writing.
Each party shall inform the other party of any change to their residential address and/or fixed or mobile telephone number within 48 hours of such change occurring.
Each party shall inform the other party as soon as reasonably practicable in the event of the child while in their care being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
Each party may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s school normally attended by parents.
All outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hearn & Sempers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

BRC 12670 of 2016

MR HEARN

Applicant

And

MR SEMPERS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern [X] who has just turned 13.
Until …2016 when [X] was 11, he was living a happy and settled life with his mother, stepfather and two younger brothers in Town B near Town C. His parents separated when he was a baby but his father, who lives in Queensland, had always been interested in having a relationship with him, and [X] was seeing him regularly.
On …2016, [X]’s world was turned upside down when his mother was killed in a car accident.
Very shortly after his mother’s funeral, his father informed his stepfather that he expected [X] to commence living with him from the beginning of the 2017 school year. His stepfather was opposed to that; he wanted [X] to remain living with him and his brothers. In due course, litigation was commenced and the previously cordial relationship between family members on both sides became very strained.
[X]’s preference is to remain living in Town B with his stepfather and his brothers. However, it is the father’s case that notwithstanding this, [X] should live with him. He is of the view that the stepfather is not capable of properly attending to [X]’s medical and educational needs, something the father and mother managed between them when the mother was alive, and it is by implication his case that once a change of residence occurs [X] will adjust to it.
The stepfather and the father are both good men. They have no criminal history. They do not have any drug and alcohol issues. There are no family violence or mental health issues in this case, and the father is particularly to be commended for taking a role in his son’s life in circumstances where he and the mother separated before the child was born after a very brief relationship. Many men do not step up to their responsibilities in a situation like that and the father did.
The father and stepfather both love [X] very much and they both want the best for him, and those kinds of cases are among the most difficult cases the Court has to decide.

The evidence

The father relied on his affidavit and financial statement filed on 3 November 2017 and the affidavits of his partner Ms D and the paternal grandmother Ms E filed on the same day.
The stepfather relied on his affidavit filed on 26 October 2017 and the affidavit of the maternal grandmother Ms F filed on 17 November 2017.
A family report was prepared by Mr G, a Regulation 7 Family Report writer.

Background

The mother and father had a two or three month relationship in 2004 during which the mother fell pregnant. She gave birth to [X] on …2004.
The father asked for a DNA test and it established that he was [X]’s father.
The father was in the Employer A at that time. He had joined in about 2002 and it is unclear to me exactly where he was posted throughout his time in the Employer A. He may have been living in Queensland when [X] was born, I am not sure, but wherever it was that he was posted to from time to time he remained a part of [X]’s life after it was established that he was [X]’s father.
The father paid child support, he spent regular time with [X] and he took a keen interest in his medical issues. The paternal grandmother also became integrally involved in [X]’s life and took him to medical appointments.
The father and mother discussed [X]’s education from time to time. Prior to the mother’s death they had been discussing which high school [X] should attend in 2017.
The father has and the mother had strong ties in the Town B area. The father’s parents are separated but they both live in that area as do the mother’s parents who are still together, and after the mother began a relationship with the step-father in 2006 when [X] was about 18 months old they set up home in Town B.
The mother and step-father married in …2010 and they had two children: [Y], born on …2008, and [Z], born on …2010. It was in that household, with the mother, the stepfather and his brothers, that [X] lived until his mother’s death.
Within days of the mother’s funeral, the father made it very clear to the stepfather that he wanted [X] to live with him. I am not necessarily critical of him for that although his request may have been better expressed. The evidence he gave about his conversation with the step-father was as follows:
On the …2016 I approached Mr Sempers to discuss [X]’s future. During the conversation I said words to the effect.
“I don’t believe you have any parental responsibilities to [X] and that would make any medical or schooling decisions a lot harder due to you not having any signatory ability”.
“I want to leave [X] at Town B till the end of the year so he can complete his primary school year and then that way he can start a new school in the Town D area in the new year”.
“I don’t want to take [X] away so you or Ms H’s family never see him”.
“Visitations can be exactly the same as they are, just reversed”.
This exchange happened outside the Town B School. Both Mr Sempers and I had attended the school as this was the first day back to school for the children after Ms H’s tragic passing. We walked the children in, talked to the teachers and then I left. Mr Sempers came out a short while later and I had the above conversation with him, I asked him if he wanted to go someplace else to talk, however he was happy to chat there.[1]
[1] Paragraph 151 of the father’s Affidavit filed on 9 November 2017.
The father’s views were expressed in a very forthright way, and he may have timed his approach to the stepfather better, but I am not critical of him for being of the belief that [X] should live with him after the mother’s death.
The stepfather would not agree to that and I am not critical of him either. It was a perfectly natural response. [X] calls both men “Dad”.
On 16 December 2016, after it was clear that the stepfather would not agree to what the father wanted, the father filed an application seeking an order that [X] live with him.
Interim orders were made on 17 February 2017 which provided for [X] to live with the stepfather and spend every third weekend with the father with changeovers at Town C, and also to spend time with him for half of the school holidays.

The parties’ current circumstances

The father is 34 and lives in Town D. He was a professional in the Employer A between 2002 and 2013. After his discharge he obtained a job at Employer B and according to his Financial Statement he is also in the Employer C.
The father has been in a relationship with Ms D for over 10 years. Ms D is a professional. She has no children. The father has no other children besides [X] but he said that he and Ms D would like to start a family.
The father has no family in Town D or indeed anywhere close to where he lives as far as I am aware. The paternal grandmother, with whom he has a very good relationship, lives in Town B. The paternal grandfather from whom he is currently estranged lives on a farm somewhere near where the child lives, and there was no evidence that any member of the father’s family with whom he intended to have regular contact lived in close proximity to Town D.
[X] has visited his father’s home during school holidays.
The stepfather is 42 and lives in Town B. He received a payment following his wife’s death and he has used it to purchase a home outright for $320,000.00.
The maternal grandparents live near the father. The child has a close in age cousin called [W] who lives next door and of course [Y], nine and [Z], seven, also live in [X]’s home with [X] and the stepfather.
The stepfather is a tradesman by trade. He was working part-time as a tradesman prior to the mother’s death but he is currently not working and receives Centrelink benefits.
[X] commenced Year 7 at School 1 High School at the beginning of 2017. If he continues to live with the stepfather, he will continue to attend that school unless the stepfather and father agree on something different. If [X] goes to live with the father, he will attend a school in or near Town D.

The applicable law

The stepfather has standing pursuant to s.65C(c) of the Family Law Act 1975 to seek parenting orders; nobody suggested otherwise. He is certainly a person who is interested in the care, welfare and development of the child.
Parenthood does not give a person priority when it comes to determining the parenting arrangements which should be made for the child. In Aldridge & Keaton the Full Court said as follows:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s.60CA) and the positioning of the section in the Act;
·the recognition in s.65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application. But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood. Often in the latter circumstances a relative of the child will appropriately seek parenting orders.[2]
[2] Aldridge & Keaton (2009) FLC 93-421
In the older case of Rice & Miller[3] (referred to with approval in Aldridge and Keaton) the Full Court said as follows:
… We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.
[3] Rice & Miller (1993) FLC 92-415
I must decide what outcome would be in [X]’s best interests having regard to the matters in s.60CC (2) and (3) of the Family Law Act 1975.

[X]’s best interests

The primary considerations in s.60CC(2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Given that [X]’s mother is deceased, it is very important that he has a strong relationship with his father.
A meaningful relationship has been defined as one which is important, significant and valuable to the child.[4] [X] has that kind of relationship with his father at the moment and whether he continues to live with the stepfather or not he will continue to have an important, significant and valuable relationship with his father.
[4] Mazorski & Albright (2007) 37 FamLR 518
There is no evidence that the stepfather is likely to undermine the relationship between [X] and his father. Some of the communication between the father and stepfather since the litigation commenced has not been the best, although it has not all been bad and even the worst of it has been nowhere near the kind of terrible communication I have seen in some other cases, but there is some explanation for communication from the stepfather which has not been perfect. It has been very stressful for the stepfather to be faced first with the loss of his wife and very quickly thereafter with this litigation in the Federal Circuit Court; he has had to deal with those things one on top of the other.
Some of the communication by the father has not been perfect either. It has had a bit of a dictatorial tone and yet on some occasions, even in receipt of that kind of communication, the stepfather has responded very reasonably, and I refer to what I will call the head lice communication.
Communication between the parties has been strained and not always cordial since the litigation commenced but there is no sign that if the child continues to live with the stepfather his relationship with the father will be affected due to the stepfather having a particular attitude to the father.
It needs to be remembered that [X] has lived with his stepfather since he was 18 months old. There is no suggestion that prior to the mother’s death the stepfather ever denigrated the father. The child went back and forth between the father and mother without incident.
I do not accept that the step-father would fail to facilitate a relationship between the child and the father in the future, and there are some examples in the evidence of him being quite willing to defer to the father in relation to certain things, for example attendance at the parent-teacher interviews.
[X] will have a meaningful relationship with the father if he lives with him, but he can continue to have a meaningful relationship with his father if he lives with the stepfather, so that consideration does not assist me to determine the matter.
I must consider whether the child would be likely to be subjected to or exposed to abuse, neglect or family violence. There is not a single hint of that in the evidence.
There was a suggestion in the father’s case outline document that the child might suffer psychological harm through denigration of the father if he lived with the stepfather. That submission does not have merit and the primary considerations do not assist me to determine what should happen for [X].
The additional considerations are contained in s.60CC (3) of the Family Law Act 1975 and the first of those is the views of the child and the weight to be given to his views.
[X] was very clear with the family report writer that he wanted to remain living with his stepfather and his siblings. The family report writer said as follows:
[X] explained to the Family Consultant that he wishes to remain living with his stepfather and his two half siblings, clearly stating that his friends and extended family were significant for him. According to [X], he hasn’t told his father his wishes because, he indicated that Mr Hearn hasn’t asked him. At the same time [X] indicated that he would like to continue spending time with the paternal grandmother, as well as having sleepovers at her home, whilst he stated categorically that he would like to see his father every third weekend.[5]
[5] Paragraph 74 of the Family Report.
In the father’s case outline document there is some suggestion that [X] might have been coached. That suggestion is utterly without foundation. The family report writer addressed it in the family report and he said the same thing in cross-examination.
He said as follows in the family report:
It is the opinion of the Family Consultant that [X]’s expressed views about his living arrangements are his views and that he has not been pressured by the stepfather nor any member of the extended maternal family to provide a response to the Family Consultant other than what is [X]’s wishes.[6]
[6] Paragraph 15 of the Family Report.
There was no evidence that [X] had been coached to express a view and there was nothing about the stepfather’s presentation either to suggest that he was someone who was likely to have attempted to put pressure on the child.

However [X] is a child, not an adult. Children cannot always make the best decisions for themselves. They cannot always see the bigger picture. They might choose the easy option and the court does not necessarily make orders simply because children say they want a certain thing. However [X]’s views are something I will need to take into account in determining the matter.
I must have regard to the nature of the relationship between the child and other relevant people.
The mother was the child’s primary carer prior to her death. From all the evidence I have heard and from what is in the family report, it is clear that prior to her death she was the most important figure in the child’s life.
The father was also an important figure in his life though, someone he saw regularly, and the paternal grandmother was another quite important figure in his life.
[X] is a lucky boy who has a good relationship with all of his extended family. He has a good relationship with his father and with his stepfather, a strong relationship (and this was not challenged and was the father’s evidence) with his siblings, a good relationship with his paternal grandmother and his maternal grandparents and a satisfactory relationship with the father’s partner Ms D.
[X] was a little bit lukewarm about Ms D when he spoke to the family report writer, but that might be because given that she lives in Town D and the father often saw [X] by travelling to Town B, he has not spent much time with her. There is nothing to suggest that they have a bad relationship.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child and to communicate with the child.
The father is to be hugely commended for his commitment to his son over the course of his son’s life. He had some deployments with the Employer A until 2013 which meant that he was unavailable on occasions but when he was not deployed and was available he drove to Town B regularly, about once every three weeks or so, to spend time with the child.
He attended birthdays. He was strongly involved in the child’s medical treatment. He spent time with [X] during the school holidays. He was very active in decision-making. He and the mother had lengthy discussions about the child’s education prior to the mother’s death. The father cannot be faulted and indeed is to be commended for the extent to which he has taken a role in his child’s life.
I must consider the issue of child support.
The father is assessed to pay child support to the stepfather of $178.00 per week. Payment of child support is not an issue in the case.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or any other person, including any grandparent or other relative of the child with whom he has been living.
The father proposes a significant change for [X] and it is a big issue in the case.
[X] is embedded in Town B. He lives with his two younger brothers and his stepfather whom he calls Dad just as he calls the father Dad. He has a large extended family living in the area. His paternal grandparents, who are separated, both live at Town B. He has a cousin next door with whom he plays. His maternal grandparents live down the street.
[X] has spent time with his large extended family all his life and he has a good relationship with them. He also has friends in the area, and as the family report writer pointed out, at his age his mates would be very important for him. The father commented that at school at Town E, [X] sat with his friend [V] who had transitioned to School 1 High with him from Town B Primary.
The father proposes that the child be taken out of that environment and live with the father in Town D where there are no relatives. His brothers are not there and there is no extended family, just the father and his partner. [X] would have to make new friends, because even if there are some people in Town D he sees occasionally when he goes up there he would not have a close relationship with them at the moment.
He would have to move to an area where he does not know anyone, where he does not have his cousin living next door, his friend from school to sit with at lunchtime and all his grandparents around him.
The father has a very different parenting style to the stepfather. The family report writer and the paternal grandmother both described him as being strict about routines.
One thing that struck a chord with me was Ms D complaining or commenting on the fact that the child didn’t know how to use a knife and fork in the context of eating fish and chips. For all I know, using a knife and fork is not what the child commonly uses to eat fish and chips. Some people use their fingers for it. The child would have to adapt to a very different life in the father’s home in circumstances where he would have no family around him.
[X] might adapt. Children have to accept change in their lives. It is a factor in all our lives, and being able to adapt to change is a very positive thing. He might adapt, but he might also struggle to adapt, and I will have to consider at the end of the case whether what the father has to offer him in regard to education and attention to his medical needs outweighs the fact that he might well struggle to adapt to the change the father proposes.
The family report writer said as follows in cross-examination:
[X] may or may not adjust to such a dramatic change.
The family report writer went on to comment that any benefits that might flow to [X] from different attention to his education or medical needs might be negated if he did not adjust to the change. It is a significant issue in the case and I will have to weigh up all the evidence about what the father has to offer to determine whether that change should be made.
I must consider the practical difficulty and expense of the child spending time with a parent and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
As worded this provision relates only to parents but the issue of the practical difficulty and expense of [X] spending time with the father and step father is a relevant issue in the case and it is convenient to discuss it here.
The father and stepfather live five hours apart. That makes weekend time in school terms problematic if [X] is required to travel. He would have to do a ten-hour round trip by road on a weekend which is a lot for a child. It is not a question of who pays for it and it is not a question of who does the driving. It is a question of the impact on [X] of being required to do that trip.
To date [X] has not had to do this because the father has always done the travelling. He has come to Town C or Town B to spend time with the child.
Interestingly there was no evidence that prior to the mother’s death, the father ever sought to change that or to have the mother share in the travel. Now in these proceedings he is somewhat critical of the stepfather for not agreeing to do some of the travelling.
In submissions, and also during the hearing, the father’s counsel pressed the case that the stepfather was as well-off financially as the father. I simply cannot see that on the evidence.
The father lives in a household where the joint income is $140,000.00 odd. He owns two real properties subject to mortgages, one in Town B. He pays child support but he has does not have to provide for any dependents on a day-to-day basis.
The stepfather is on Centrelink benefits. He owns a home free of encumbrances as a result of the loss of his wife but he has far less income available to him than the father if you look at their raw incomes and not their incomes after you take off things like the father’s two mortgage payments, and he has to support himself and at the moment three children with that.
I do not accept that the stepfather is as well-off as the father. The submission does not make any sense to me.
It would be somewhat more difficult for the stepfather to travel, given that he has to make arrangements for three children if he has to travel.
There will be a practical difficulty and expense in the child spending time with one of the parties depending on where he lives, and if I make an order that [X] lives with the father in Town D, the distance is going to mean that he will be cut off from his brothers and members of his extended family during the school terms.
He is also likely to see less of his paternal grandmother. During submissions and during the trial the father’s counsel pressed me to accept that the paternal grandmother would travel up to Town D regularly to see [X]. I have read her affidavit again. She has travelled up to Town D in the past and has the capacity to travel to Town D and she might do it on occasions in the future but she did not give evidence that she would frequently travel up there and by doing so ameliorate the extent to which [X] was cut off from extended family if he lived in Town D.
I must consider the capacity of each party to provide for the needs of the child including his emotional and intellectual needs.
The father is a very upstanding member of the community and I have no doubt that he has the capacity to provide for [X]’s day to day needs.
He has not parented a child full-time and some of his expectations, including that he is going to be able to enforce regular tooth-brushing, may be unrealistic. He may also have a somewhat unrealistic view about how successful he is going to be in containing the kind of movies the child watches and the computer games he plays. The following passage in the paternal grandmother’s affidavit struck a chord with me:
Mr Hearn’s parenting style is to micromanage, as evidenced by conflict over [X] enrolling in sports and accessing social media and gaming. My work over 15 years with adolescents suggests that Mr Sempers’ approach to [X]’s emerging adolescence is more appropriate than Mr Hearn’s authoritative style, where he wants to intervene in micromanaging [X]’s life.
The maternal grandmother is partisan in the proceeding; she wants [X] to stay in Town B, but in terms of a general proposition that struck a chord with me.
That does not mean that the father would necessarily clash with [X] irretrievably and that their relationship would break down, but he might find the reality of trying to control everything his son does, watches and says is a bit different to what he expects.
However there is nothing to suggest that he is a harsh person; he might learn to bend with the wind. I have a small residual concern about it but it does not determine the case one way or the other.
The father’s view is that [X] should live with him because the child is not achieving well educationally. By implication it is his view that if [X] went to the school that he chose and had the opportunities that he could offer he would do better, but that needs to be drilled down into a little bit.
If you have a look at his school reports and his NAPLAN results [X] is not doing particularly well in English.
His Maths is also not great but in the Year 7 school report that was tendered it was pointed out that he had worked hard and gone up a level in the first semester.
The school report also shows that he is doing very well in technical subjects.
The father felt that the child should have been attending the Catholic school that he identified during Year 7 and he believes that he can arrange schooling for the child which will give the child better opportunities.
The father’s counsel, very creatively I must say, latched onto one of the objects and principles of the Family Law Act which is seldom mentioned, s.60B (1) (c), which says that one of the objects of the parenting part of the Family Law Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential. It was in effect his submission that [X] needed to be with the father so that he could achieve his full potential.
The problem with that submission is that there is no evidence about what [X]’s potential is. This is not a case where [X] is failing to attend school at all. It is not a case where he misses numerous days at school. It is not a case where he has been suspended due to behavioural issues. There was no suggestion that School 1 High was a substandard school.
[X] is attending school without incident. He is doing better in some subjects than others but there is no independent evidence about his abilities or aptitudes and I cannot make a finding on the state of the evidence that he is failing to reach his full potential and if so what targeted intervention would help.
There is also nothing to suggest that a change of residence is necessary to deal with any perceived issues about the child’s education. He could remain where he is. He could undergo some tests and have some assessments and then have some targeted intervention if that is the path the parties wanted to go down; some tutoring in particular subjects to assist him.
There is nothing on the state of the evidence to support a finding that making an order that the child live with the father will ensure that he receives the parenting necessary to help him achieve his full potential.
I accept that the father is keenly interested in [X]’s education and would do everything he could to assist him, but I am not convinced that leaving him where is and leaving him at his current high school means that he is somehow going to fail to reach his full potential.
There is also the matter of the child’s medical issues.
The father is strongly aware of the child’s medical issues. He described the child’s medical history in his affidavit as follows:
[X] was born with Pierre-Robin (Cleft Palate) which includes but is not limited to speech deficiency, dental decay, hearing impediment, sleeping difficulties.
[X] was also diagnosed with Sticklers Syndrome which includes vision defect and weakness of the joints both conditions need monitored to ensure he is well cared for.[7]
[7] Paragraphs 35 and 36 of the father’s affidavit filed on 9 November 2017.
The father been closely involved in [X]’s medical treatment throughout his life. The mother and paternal grandmother took him to a lot of his medical appointments. The paternal grandmother arranged speech therapy for [X] and she is to be greatly commended for that.
The father is far more knowledgeable than the stepfather about the child’s medical issues. Whether it would be bad for the child to do sport is not something I can make a finding about on the state of the evidence but leaving that aside, the father is clearly highly knowledgeable about the child’s medical issues and the stepfather is less so.
The father was critical of the stepfather for his inferior knowledge of the child’s medical issues and the father’s counsel went further than that. He referred to a paragraph in the family report where the report writer said that it was incumbent on the stepfather to ensure that he became au fait with the range of issues that would continue to impact on [X]’s emotional and physiological welfare.[8]
[8] Paragraph 79 of the Family Report.
The father’s counsel noted that the step-father had not taken steps to improve his knowledge of the child’s medical issues since the report was released and suggested to me that the report writer had said that if the stepfather had not improved his knowledge then the Court should consider, or even must consider, a change of residence.
I do not recall that evidence and even if it was given it would not be binding on me; the decision is mine. However what this submission by the father’s counsel ignores is that what the family report writer went on to say in his report was as follows:
The stepfather’s failure to do so [become au fait with the child’s medical needs] will only lead to [X] possibly wishing to live with his father in the future and if that situation arises, Mr Sempers needs to support [X]’s decision in this regard.
I do not accept that the fact that the father has a better understanding of the child’s medical needs than the step-father means that it is imperative that there be a change of residence for the child.
The step-father has taken the child to one paediatric appointment since his mother’s death. True it is that he did not go in and see the specialist but he took him to the appointment. There is nothing to suggest that he would stand in the way of [X] receiving proper medical treatment. There is simply nothing to suggest that [X]’s medical needs are not being properly met. I do not accept that it is essential that there be a change of residence because of anything to do with the child’s medical needs.
I would expect that the father will continue to be closely involved in meeting those needs whether the child lives with him or whether he continues to live with the step-father, which was exactly what was happening when the child’s mother was alive, and that is sufficient to meet the child’s medical needs.
I can be satisfied that if the child lives with the father, he would be assiduous about meeting the child’s medical needs. What I cannot be satisfied of is that is essential to change the child’s residence because the stepfather is not meeting those needs.
The stepfather is coping with caring for [X] and the other two children in his care. There is evidence in his affidavit and in the maternal grandmother’s affidavit about the things he is doing and that evidence was not challenged.
The stepfather seemed somewhat cast down when I saw him at the hearing. He has done some courses to assist the children since their mother’s death but has been reluctant to seek help for himself. Perhaps he should rethink that and try and get some help and support for himself but I am satisfied that he is doing a proper job of caring for the child on a day-to-day basis.
The father was highly critical of the stepfather for not going to parent-teacher interviews, but the stepfather said (and I do not see why I should place weight on the father’s evidence about what [X] said about it and not on the stepfather’s evidence) that he did not go because he knew the father was going, and if that is the case it was an appropriate decision by the stepfather to allow the father to continue the role that he had always wanted to have in the child’s life of taking a keen interest in his education.
There was evidence during the trial that the stepfather had gone to the school fairly recently and taken appropriate steps when he was informed about a bullying issue.
There was a complaint that the stepfather was not assisting the child to do homework. However without evidence about what the expectations of each of the child’s classes are about homework it is very difficult for me to know what to do with that issue.
Something was said in the school report in connection with one or other of the subjects – it might have been several of them – that the child could perhaps be doing more at home, but I do not feel I have enough evidence to be critical of the stepfather in regard to what the child is doing at home and further, if there is an issue it is something that could be dealt with without changing the child’s residence.
It could be dealt with by consultation between the father and the stepfather and by them going to the school, finding out what the school’s expectations are, and setting up a regime to make sure that [X] does some extra work, whether by attending a homework club if the school has one or through some other means.
I must consider the child’s maturity, sex and background and any other matters particular to the child.
The only particularly relevant matter about the child is his health. He has a range of health problems due to conditions he has had from birth.

The father went so far as to say in his affidavit that the child’s health problems were such that he might have difficulty transitioning into the workforce. There is nothing in the evidence to suggest that is the case. [X] does not have teacher’s aide sitting with him throughout the day and he isn’t being suspended from school. His level of achievement is different in different subjects and there is no foundation for a claim that he might have difficulty transitioning into the workforce.
I must consider any issues of family violence and whether there are any family violence orders but those considerations are not relevant in this case.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
I would like to think that once orders are made in this matter there would be no further proceedings.
An order that the child remain with the stepfather is the order least likely to lead to further proceedings because it is aligned with the child’s wishes, and I have no reason to believe that if [X] decided at some later point that he wanted to live with his father the stepfather would stand in his way.
If the child is ordered to live with the father and doesn’t settle then there could be some difficulties and perhaps some further proceedings, but this is not a case where that consideration is going to determine the matter.
I must consider any other relevant matter but there are none.

Parental Responsibility

The father sought an order for sole parental responsibility and if an order is made for the child to live with him that would be the appropriate order. In that particular circumstance, I cannot see any benefit to the child in having both the stepfather and the father involved in decisions about his education and medical needs.
If the child lives with the stepfather however, the stepfather will need to have parental responsibility for him, and he proposed that he and the father have equal shared parental responsibility.
That would match what was happening when the mother was alive, because really the mother and father were effectively equally sharing parental responsibility; well to a degree anyway. They had a difference about the high school [X] should attend but they were managing the child’s medical needs between them and they had some meaningful discussions about the child’s school.
I have some reservations about how well the stepfather and father will be able to co-operate with each other. They have not been able to maintain civil communication at all times since the child’s mother’s death. However they are both adults without any particular issues to do with mental health or violence. They should be able to learn to work together.
They will need to think about what matters they will be required to jointly consider and what matters they should simply leave to the other party when the child is with the other party but they are both reasonable upstanding men and I cannot see why they could not learn to communicate appropriately if it was necessary for [X]’s best interests.
Those are the two alternatives that I will have to consider in relation to parental responsibility depending on the order I make about where [X] is to live.

The recommendations in the family report

The court normally gives some weight to recommendations in a family report. Family report writers are impartial. They do not bring any emotion to the proceedings. They have no case they are trying to advocate. They express an opinion based on the information that is given to them and the interviews they conduct with the parties and the child.
The family report was not shown to contain any errors of fact, and the report writer’s opinion about what should happen deserves to be given weight, having said which of course the ultimate decision is mine.
The family report writer’s opinion was that in all the circumstances of this case [X]’s wishes should be respected. He said as follows:
There is […] no doubt that besides the paternal grandmother, [X] has a positive relationship with his biological father, who clearly possesses the skills to be a consistent and focussed parent, particularly given [X]’s range of needs. However Mr Hearn must realise that at this point in time, [X] has a clearly expressed desire to maintain his current living situation, and it is thus incumbent upon the father to support this and ensure that he remains consistent on an ongoing basis in spending time with [X] and supporting him not only through his current grief but with his future developmental needs.[9]
[9] Paragraph 78 of the Family Report.
During cross-examination the family report writer said, after that comment that I referred to earlier about the fact that [X] may or may not adjust to a change, that stability for the child given the extreme loss he had suffered and given his connection with his siblings and maternal family and paternal grandmother, should be the priority in the case.
The family report writer said in summary that at this time the child’s views should be respected and weight should be given to the importance of the child being able to maintain his position within the community and the family in Town B. He said that [X] may at a later stage want to go and live with the father, but he felt that should happen if it was in accordance with what [X] wanted when he was a little older.

Conclusion

I stress again that the two people who are contending for orders that [X] live with them, the stepfather and the father, are both good men. It is a situation the court rarely has before it.
The family report writer felt that considerable weight should be given to the child’s views, and the child’s views, as everyone conceded at the trial, are the same now as they were when the child was interviewed in March 2017.
Children’s views do not determine a case of course. I have to weigh up the other matters that the father wanted me to weigh up namely the fact that in his eyes he was better placed to attend to the child’s medical and educational needs.
However, on balance, everything points to the desirability of leaving [X] where he is.
[X] lost his mother only 12 months ago. To impose another significant change on him contrary to his views would be harsh when there is another alternative available. It would take him away from his brothers, his mates, his extended family, his school, all his familiar haunts, to a place where he had no relatives other than the father and knows no one and would have to adapt to new ways of running a household.
[X] is doing okay at the moment. He could be doing better at school but I cannot be sure about whether he is actually achieving to the level of his ability or whether he could achieve more if he was pushed harder.
The father and the stepfather should explore the issue of the child’s capacities and his abilities but that can be done without his residence changing. They can get together and arrange for the child to be assessed, to be tested, and talk to the school about the issue of home-work and what can be done in that regard if there is a necessity for it, and look at some other interventions such as tutoring, but that can all be done with the child remaining where he is.
The family report writer pointed out that it would be of no benefit to [X] if his residence was changed and he did not adapt to it. If that was the case he would not benefit at all from any better educational opportunities the father might offer him.
I cannot be satisfied that [X] is being medically neglected in the stepfather’s care, and there is nothing to stop the father continuing to be as involved in the child’s medical care as he has been to date. Once this litigation is over, the stepfather may well let the father have the running in relation to medical matters. He is the knowledgeable person and previously he and mother were in charge of the medical issues.
I am particularly concerned about separating the child from his siblings. The father originally sought to deal with that by proposing that the child spend time with the stepfather and his siblings each alternate weekend, but that would be extremely onerous for the child in terms of travel. He then proposed that the child spend all of the three shortest school-holiday periods with his siblings and stepfather, but that is far from a good arrangement either. It would mean the child spent little holiday time with the father, and it would also mean there were whole terms when he was not part of a family unit with his brothers.
The father is a very important figure in the child’s life. The family report writer referred to that repeatedly, and [X] is a very lucky boy, because not every child in his situation where the parents had a fleeting relationship has an involved father in his life.
The father may feel that it is natural that his son should live with him now that the mother is deceased given that he is the child’s biological father but as I have made clear biological connection does not determine the parenting matter.
The family report writer pointed out that if [X] was left to come to his own view about it, he might decide in the future that he wanted to live with the father, but at present I cannot see any advantage to the child and numerous disadvantages to him in making an order that he lives with the father, and I am going to make an order that the child lives with the stepfather.
I then have to consider the orders about time, and that gets a little bit tricky. Weekend time is impractical during school terms if the child is required to travel to Town D. Unless the parties want to agree to it I would not be prepared to make an order that this occur, although I could always make an order that time otherwise occur as agreed.
I can also make an order that if the father comes down to Town B then the child should be able to spend some time with him, and I can make an order that the child spends some regular time with the paternal grandmother.
It is quite important to the father, although it does not seem to be something he ever pressed when the mother was alive, that the stepfather does some of the travelling for change-overs and he proposed a change-over at Town A.
I do not accept the father’s submissions that the stepfather is in the same financial position as he is but if the only travel required, unless by agreement, is during school holidays, I am inclined to make an order that the father and stepfather meet at Town A so the stepfather does take some part in doing the change-overs.
If the father wants to see the child during school terms then he is going to have to do the travelling, and he will also have to do the travelling if he needs to come down to any school events.
Given that I am going to order that the child lives with the stepfather, I am going to make an order that the stepfather and the father have equal shared parental responsibility for the child.
I intend to make an order that [X] spend half of the school holidays with the father. He needs to be able to spend half of the holidays with the stepfather and his brothers.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 9 February 2018

[2017] FCCA 3357

13 December 2017

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