Higgins and Higgins (No.5)
[2011] FMCAfam 1119
•20 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HIGGINS & HIGGINS (No.5) | [2011] FMCAfam 1119 |
| FAMILY LAW – Whether children subject to abuse by father – whether father failing to account for children’s food intolerances – effect of parent’s contempt for each other on children. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA,60CC, 65DAA |
| Applicant: | MS HIGGINS |
| Respondent: | MS HIGGINS |
| File Number: | DGC 3138 of 2008 |
| Judgment of: | Phipps FM |
| Hearing date: | 12 May 2011 |
| Date of Last Submission: | 12 May 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| The Applicant: | Appearing in person |
| Solicitors for the Respondent: | John Conquest Lawyers |
ORDERS
The application filed 28 May 2010 as amended on 6 August 2010 is dismissed.
The orders made 9 February 2009 in relation to the children [X] born [in] 1999 and [Y] born [in] 2001 remain in full force and effect.
IT IS NOTED that publication of this judgment under the pseudonym Higgins & Higgins (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 3138 of 2008
| MS HIGGINS |
Applicant
And
| MR HIGGINS |
Respondent
REASONS FOR JUDGMENT
Ms Higgins and Mr Higgins separated in November 2007. I will refer to them as the mother and the father. They reached agreement about arrangements for their two children [X] born [in] 1999, now aged 11 and [Y] born [in] 2001 now aged 10 and a property settlement and entered into final consent orders on 9 February 2009. The substance of the children’s orders is:
a)That the applicant and the respondent have equal shared parental responsibility for the children;
b)The children live with the applicant;
c)The children spend time with the respondent as follows;
i)Every second weekend from after school on Friday until the commencement of school on Monday;
ii)Every second Tuesday from after school until the commencement of school Wednesday;
iii)Half the school holidays.
The mother commenced this application on 28 May 2010. She is self represented and the orders she proposed in her application are lengthy. In Family Law Act terminology she proposed that she have sole parental responsibility for the children and that the father spend time with the children only under supervision of another adult. She proposed that the children spend time with the father on the last weekend of the month, for one week during school term holidays and alternate single weeks in the Christmas holidays. The mother then filed an amended application on 6 August 2010 in which she proposed that the children spend no time with the father, but that there be phone, written or e-mail contact, and that the father be able to attend school and extracurricular activities
The father's response proposes that the mother’s application be dismissed and so the order of 9 February 2009 remain unchanged.
The mother’s outline of case document says that she wants to stop the father’s time with the children “due to constant and ongoing emotional and psychological abuse, neglect, intimidation, violence and physical harm the father is subjecting the children to on a constant and worsening basis since separation and since court orders originally made in February 2009”.
Broadly stated the issue between the parties is whether the mother’s allegations are correct.
The mother's material is her amended application filed 6 August 2010, notice of child abuse or violence filed 21 July 2010, and her affidavits filed 28 May 2010, 21 July 2010, 6 August 2010 and 14 April 2011. She tendered in evidence [W] counselling documents, [omitted] police documents and the report of Dr K.
The father's material is his response filed 29 July 2010 and affidavit filed 10 May 2011. He tendered the Department of Human Services documents.
Both parties gave oral evidence.
Ms M prepared a Family Report verified by affidavit filed 2 February 2011.
The parties commenced cohabitation in May 1998. They married [in] 2000 and separated in November 2007. The children have lived with their mother since separation and spent regular time with their father. Since the orders of 9 February 2009 they have spent time as set out in those orders. The mother sets out her concerns about the children's time with their father in her affidavits and gave oral evidence about one specific occasion.
The mother makes general complaints that the father shows no stability, completely irresponsible behaviour while parenting and she says his bitterness, anger and intimidation of her and constant attempts to control her cause emotional and psychological distress to the children.
She says the father has not provided suitable accommodation for the children. She says that they have spent some nights sharing a triple bunk in the paternal grandparents residence and have spent much time at the father's girlfriend's residence. The applicant says that on 14 February 2010 he and his partner moved into [address omitted]. The mother says that the father left a message in the communication book on 22 February 2010 advising her of this new address. She says the children are still spending time sharing the triple bunk at the grandparent’s house.
Concern about the father's accommodation was not something raised by the mother at the final hearing. Apart from this I am satisfied the father has appropriate accommodation for caring for the children. If they do spend time at the grandparent’s house, this is a positive thing for the children because it means that the grandparents are part of their lives. The children are 11 and 7. There is no harm in them on occasions sleeping in triple bunks in the same room as their father.
The order of 9 February 2009 has a paragraph "Each party may have telephone time with the children for thirty (30) minutes on each day that the children are in the other parents care and at any time in the case of an emergency”. The mother asserts that the father has made telephone contact with the children difficult. She sets out many dates and times when she has not been able to contact the children by telephone. She says that when the children are on the telephone the father and his associates make it difficult, attempting to talk to the children and distracting them.
The mother says that the father continually denigrates her to the children and that [Y] in particular talks about it.
The mother complains that the children have told her that the father lets them throw things at road signs while driving. She says that the father has allowed the children to travel in the boot of a car.
Both children have food intolerances to gluten and dairy. The mother says that [X] is more affected through his stomach whereas [Y] is affected mostly through her skin. The mother complains that the children are fed unsuitable food when with their father.
The mother complains about the father’s care for the children. An example is that she says that the father sent [Y] to school on a cold day dressed in a light dress. She acknowledges that when she collected her from school that day [Y] had a thin cardigan in her school bag. She said her clothing was inadequate for a 16 degree day.
The mother complains of the behaviour of the father's friend Mr D. She says the children told her that Mr D would grab them and pull them in to sit on his lap very close to his body and hold them there. On 13 August 2010, I ordered that the father ensure that there is no physical contact between the children and Mr D. The mother brought a contravention application alleging that the father had permitted the children to have physical contact with Mr D on Christmas Day and New Years Eve 2010. I dismissed the application for reasons I gave at the time. Except that when with Ms M, [X] wrote “Dad lets Mr D” and then scratched it out there is no evidence of any further complaints by the children other than the mother maintaining her complaints about Mr D.
The mother says that [Y] says she does not like to talk to her father and his partner that she is scared of them and says that her father grabs her wrist really hard and squeezes it and gets down low talking very quietly. The mother says [Y] does not think her father is meaning to hurt her but he frightens her.
The father went into arrears in payment of child support. At the time of the hearing he was paying the current assessment and paying off the arrears. Of itself this would be of little significance but the mother puts it as part of the father's pattern of harassment and intimidation.
At the hearing the mother gave evidence of a telephone call she made to children on 7 May 2011. The children were spending the weekend with the father. The mother telephoned as she was permitted to do by the order. She said she spoke to [X] first and that was all fine. She then spoke to [Y] and asked her how her day was going. She said that [Y] said she wanted to talk to her in private and then she heard the father's partner, [name omitted] telling [Y] she was not allowed to. She says the episode escalated to the point where [Y] started crying hysterically. She spoke to [X] and asked him to protect his sister. She then telephoned police. Later she was told by the police that a protection check had been carried out and the children were not at risk. When she collected the children at the police station at the conclusion of the weekend time she took the children into the police station. The police took no action.
I put to the mother this incident would not have happened if she had not telephoned. She agreed but said that she was permitted to telephone. The father’s explanation of the incident was that he had made a rule for [Y] that she should not go off to her bedroom to speak to her mother. In the context of the extremely poor relationship between the parties and the poor opinion each has of the other, all discussed in more detail later, I can understand that the father might think that [Y] having secretive conversations with her mother while spending time with him was not desirable. I did not understand the father to say that [Y] had to remain within his or his partner’s hearing while talking to her mother. Just that she should not close herself off in her own room. The escalation of the incident and attendance of the police must have been upsetting for the children. Police involvement was not necessary. A child had a dispute with a parent over a telephone call. The child was upset but that is all. The incident does not show that the father was abusing [Y] or not caring for her properly.
The mother maintains that the family report, the notes of counselling sessions the children have had at [W], the psychiatric report and the police file support her claims. While it is true that the children had some criticisms of their father and his partner, Ms M’s conclusion is that the time the children spend with their father should remain as it is. As for the relationship between the parties and their attitude to each other it is worth quoting paragraphs 38-41 of the report.
38 The mother in this case is convinced that even after 3 years after separation the father wishes to control her every move using their children. On his part the father is sure that the mother wishes to maintain a conflictual relationship with him using their children as the medium. Each party denies the perception of the other party. The parents consider each other as crazy, irresponsible and totally blameworthy with anything that goes wrong with their children.
39 The writer is of the view that this fixed pattern of communication/behavioural exchanges between the parents is unlikely to change in the near future. The parties seem caught in a tiresome, repetitive negative behavioural cycle and usually have an unpleasant outcome with each dispute in relation to daily parenting issues involving the children. From time to time the parents also argue about money, child support and financial aspects of their children's upbringing.
40 The writer has carefully read through the copy of the communication journal that goes between the two parents in which the communication between the father and the mother is recorded starting from March 2009 to July 2010. Most of the communication is one-sided made by Ms Higgins. In the communication book Ms Higgins generally writes twice a fortnight about issues relating to their children.
41 Although the mother accuses Mr Higgins of trying to control her life, her comments, suggestions and the demands as to how Mr Higgins should provide care for the children during their time spent with him clearly establishes that she is in fact wishes to control each and every aspect of the children’s daily lives when they are not in her care. Almost in every communication she has accused the father of sending the children back to her care with illnesses such as vomiting, cold, cough, fever, head lice, husky voice, pale skin, itchy bottom, scratchy back, groin rashes, sore tummy, skin eruptions, asthmatic conditions, bloodshot eyes, blocked nose, diarrhoea and several viral infections.
Ms M describes many circumstances where the mother considers the father blameworthy in his care of the children. The mother made it clear to Ms M that even if a qualified psychiatrist expressed a view that the father was mentally sane she would not trust that judgment.
Ms M is critical of the father too. She considered it understandable that he seems to detest responding to the mother’s demands, but she says at times he makes a deliberate attempt to show how much he loathes his former partner and how worthless she is as a person to him. Ms M says these negative comments are likely to make the mother more angry and cause greater difficulties.
Ms M says the children “are caught in this vicious and “going nowhere” cycle between their parents”. She says they are likely to be confused, carry tales and play both sides as a way of coping with the daily mess created by their parents.
Dr. K conducted a psychiatric evaluation of both parents. He concluded that the father has some personality weaknesses but these fall well short of diagnosed personality disorder. He states that the father has some mild situational anxiety and depression over Court matters. Dr E did not consider the father required counselling. Dr E considered the mother has a mild anxiety state that is situational in nature with some underlying anxiety related to health matters.
Neither party’s allegations about the mental state of the other party are supported by the psychiatric evidence.
The episode on 7 May 2011, when the mother was speaking to [Y], illustrates Ms M’s assessment of the parties conflicted relationship and the children's fraught position. The father did not want [Y] to talk to her mother behind closed doors probably because he feared the mother would be attempting to interfere with his care of the children during the weekend. [Y]’s desire to speak to the mother in her bedroom was no doubt an illustration of the type of coping mechanism Ms M refers to. The result, including the attendance of the police, must have been upsetting for the children. Perhaps the father and his partner could have handled the situation better and perhaps they could have allowed [Y] to speak to her mother in her bedroom. Whether that is correct or not the behaviour by the father and perhaps his partner was not the sort of bullying behaviour the mother claims it is.
[X] had some complaints about the behaviour of the father and his partner when he spoke to Ms M. [X] said they were given the wrong food. He complained that the father and his partner argued and on one occasion he had heard the father’s partner crying. Other material shows that this was in October 2010 and that the next morning the children saw a bent spoon and pizza on the curtains. He complained that his father had grabbed [Y]'s wrists and had forcefully squeezed it once. As already described he started writing “Dad lets Mr D" then scratched it out.
Ms M’s interviews with the children reflect her assessment of the effect on them of their parents’ terrible relationship. Nevertheless she observed a happy and affectionate relationship between each parent and the children. She concludes that each child wants to see continue seeing their father. [X] in particular said he would be sad if he no longer saw his father.
The mother tendered the [omitted] Police station file asserting that it supports her claims. The mother obtained an intervention order. She made multiple complaints of breach, many of them alleging that entries in the communication diary were breaches of the intervention order.
The police file contains statements by both father and mother and a brief prepared by a police officer which recommends the father not be prosecuted for breach of the intervention order. The brief is detailed and does not support the mother’s claims. Rather it is consistent with Ms M’s assessment of the communication book, in that the brief interprets the father’s entries as responding to the mother’s many complaints and demands. The police officer preparing the brief remarks that it might be better if the parties do not use a communication book.
The Department of Human Services Child Protection Services file records most of the complaints the mother makes. The children were interviewed. They describe the various individual events including
Mr D holding them, the father holding [Y]’s wrists, and the episode in which there was pizza under or on the curtains. They describe the episode in which the father says that they travelled without seatbelts. The children say they were in the boot of the car. The child protection officers see it as a one off episode. They also show that the children want to see their father. A child protection worker consulted [W]. The file shows [W] considered the children were not stating they felt at risk with their father and that they wanted to see their father. The final assessment by the Department of Human Services is that the children are not at risk with their father.
The mother arranged for counselling for the children at [W]. The mother relies on the notes of each session with the children. The individual episodes are described by the children but so too are the times they have enjoyed with their father. The notes are consistent with Ms M’s assessment that there are aspects of the father’s behaviour the children dislike, and there have been episodes that they find disturbing, but overall they enjoy their time with their father and want to continue seeing him.
The mother in cross examining the father put to him extracts from the children’s diaries. These extracts show the children’s concerns about aspects of life at the father’s home and demonstrate Ms M’s assessment of the coping mechanisms the children use to deal with the conflict between their parents. The extracts do not, when taken with the rest of the evidence, show that the children are being harmed by their time with their father. Nor that they do not want to spend time with him.
These findings have to be considered in the context of Part VII of the Family Law Act 1975 (Cth). Section 60CC sets out the best interests considerations. Section 60CA provides that the best interests of the children is the paramount consideration. The children’s best interest have to be considered keeping in mind the objects and purpose of Part VII contained in s.60B.
The primary considerations in s.60CC are the benefit to the children of a meaningful relationship with each parent and the need to protect the children from harm.
The children have a meaningful relationship with their mother. Both Ms M and Dr K remark on the mother’s ability as a mother. The children have a close relationship with their mother.
The children have a meaningful relationship with their father notwithstanding their misgivings about some aspects of the father’s behaviour and his relationship with his partner. They have an affectionate relationship with their father and overall enjoy their time with him. The mother’s proposal, if accepted would mean that they have a very limited relationship with their father. They would have telephone contact only and see him at the occasional school function. This is insufficient for a meaningful relationship.
The need to protect the children from harm is a consideration at the forefront of the mother’s case. There are a number of unsatisfactory episodes, already described, while the children were in their father’s care. They were one off events and are unlikely to reoccur. All the professionals who have seen the children have concluded that they are not at risk when being cared for by their father. The father is not as vigilant as he could be in avoiding foods to which the children are averse. Principally I have reached this conclusion because [X] has reported that this is so. While this may have on occasions caused the children some harm in the form of illness, it is not sufficient to justify depriving them of the benefit of their relationship with their father.
The first of the additional considerations is the views of the children bearing in mind their age and maturity. Ms M’s report shows both children want to spend time with their father, notwithstanding any misgivings they have about his behaviour, his relationship with their mother and on occasions his partner. The [W] notes show the same thing.
The next additional consideration is the nature of the relationship of the children with each parent and other persons. The mother’s role as primary carer is not disputed. Notwithstanding the occasional misgivings the children have had about their father they have an affectionate relationship with him.
The next consideration is the willingness of each parent to foster the children’s relationship with the other parent. The mother, for what she says is good reason, wants to restrict the children’s relationship with their father to telephone communication and school and sporting events. She has complied with court orders in the past and so will be likely to comply in the future. The attitude of each parent to the other does not help the children’s relationship with each of their parents but their attitudes are unlikely to change. The relevance of this consideration is that court orders are necessary for the children to spend time with their father.
The next consideration is the effect on the children of any change in their living arrangements. The mother’s proposal would mean limited contact with their father, which would be likely to have an adverse effect on them because despite any misgivings they have they want to spend time with their father.
The ability of each parent to provide for the children’s needs, physical, emotional and psychological is a consideration. The father has some shortcomings in providing proper food given the children’s intolerances and allergies, and there are incidents which should not have happened, but overall I am satisfied that he can provide adequately for their needs. The mother clearly provides for the children’s needs.
The maturity sex and lifestyle of the children is a consideration. The children are of an age where they need regular time with each parent.
The other relevant consideration is the attitude to the children and the responsibilities of parenting. Overall the father has a positive attitude to the children and his responsibilities as a parent.
The findings I have made show that it is in the children’s best interests that they continue to spend time with their father. The mother is a very committed and caring mother. But the parties have an intense dislike of each other. The mother’s dislike of the father is no doubt fuelled by his expressed attitude towards her. The mother’s dislike of the father has caused her to look only at the negatives in the children’s relationship with their father. There are negatives but the positives more than outweigh the negatives.
The Mother proposes that she have sole parental responsibility. Section 65DAA contains a presumption that the parents have equal shared parental responsibility for children. The presumption can be rebutted if there are reasonable grounds to believe that there has been family violence. The episode at the father’s home in October 2010 between the father and his partner involving a bent fork and pizza on or under the curtain and the partner crying was heard by the children. They were apprehensive and there are reasonable grounds for concluding that they feared for their personal well being within the meaning of the definition of family violence in s.4 of the Family Law Act 1975 (Cth) and so, apart from any other considerations, the presumption is rebutted.
Nevertheless whether there should be an order for equal shared parental responsibility still has to be decided applying the best interests test.
An order for equal shared parental responsibility is in the children’s best interests. If the mother had sole parental responsibility that might fuel her attempts to control the detail of the children’s time with their father. Notwithstanding that an order for sole parental responsibility would give the mother sole responsibility for major long term matters there is a real risk that she would interpret many day to day matters as coming within her sole authority. This would not help the children’s relationship with their father and might lead to further litigation. Notwithstanding the parties inability to get along an order for equal shared parental responsibility is the better option to serve the children’s best interests.
Since I intend making an order for shared parental responsibility s.65DAA requires that I consider equal time or if not equal time substantial and significant time. The father does not propose equal time so I do not need to consider it. The existing order, which he proposes should continue, does in the circumstances meet the requirements of substantial and significant time and for the reasons already given is in the best interests of the children. I am satisfied that it is reasonably practical. The reasonably practical considerations are contained in s.65DAA(5). The parties live close enough to each other for the orders to be practical. Although their relationship is appallingly bad, the children’s time with their father has taken place under the existing orders. They are able to communicate sufficiently to make the orders work.
Since there will be no alteration to the existing orders the mother’s application as amended will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Phipps FM
Date: 20 October 2011
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