HIGGINS & HIGGINS
[2012] FMCAfam 1503
•5 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HIGGINS & HIGGINS | [2012] FMCAfam 1503 |
| FAMILY LAW – CHILDREN – Parenting Orders – best interests of the children – parental responsibility – sole parental responsibility – equal shared parental responsibility – whether equal shared parental responsibility in children’s best interests – where father has not had any communication with daughter for a year – child’s school – whether it is in child’s best interests to go to another school – whether a change should take place during the school year. |
| Family Law Act 1975, ss.10G, 60CA, 60CC, 61B, 61DA |
| Chappell v Chappell [2008] FamCAFC 143; (2009) 39 Fam LR 627 Higgins & Higgins [2012] FMCAfam 815 Marvel & Marvel (No.2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 |
| Applicant: | MS HIGGINS |
| Respondent: | MR HIGGINS |
| File Number: | SYC 5083 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 20 September & 4 October 2012 |
| Date of Last Submission: | 4 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Mr Rosic |
| Solicitors for the Respondent: | Aitken Lawyers |
ORDERS
Order (1) made on 13 August 2012 is discharged.
The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 1995 but she must notify the Respondent father within seven (7) days of any major long-term decision she is required to make in respect of the child.
The Mother and the Father are to have equal shared parental responsibility for the children Y born (omitted) 1997 and Z born (omitted) 2001.
In the event that the parties are unable to come to a joint decision about any major long term issue concerning either of the children Y or Z they are to consult jointly with a family dispute resolution practitioner as defined by Section 10G of the Family Law Act 1975 and seek the assistance of the family dispute resolution practitioner to come to a joint decision about the major long term issue concerning either of the children Y or Z in dispute between them.
Within seven (7) days of the date of these Orders the parties are to do all things and sign all documents necessary for the child Z to discontinue his enrolment at (omitted) Public School with effect from the conclusion of Term 4 2012.
Within seven (7) days of the date of these Orders the parties are to do all things and sign all documents necessary to enable the child Z to be enrolled at (omitted) Public School with effect from the beginning of Term 1 2013.
The Independent Children’s Lawyer is discharged save for any argument in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Higgins & Higginsis approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5083 of 2010
| MS HIGGINS |
Applicant
And
| MR HIGGINS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting Orders relating to the parties’ three children, X, Y and Z. The Court made a decision on 13 August 2012[1] making final parenting Orders in respect of the three children, but it was raised by Mr Reeve for the mother that the mother’s Amended Application in a Case of 11 April 2012 and the father’s Response to that Amended Application of 20 April 2012 had been overlooked.
[1] Higgins & Higgins [2012] FMCAfam 815
The orders made on 13 August 2012 provided that (relevantly):
a)The parties were to have equal shared parental responsibility for the three children:
i)X, born on (omitted) 1995;
ii)Y, born on (omitted) 1997; and
iii)Z, who was born on (omitted) 2001.
b)X was to live with the mother and spend such time with the father as she decided and the parties agreed;
c)Y was to live with the father; and
d)Z was to live with the mother.
The wife sought to re-open the parenting proceedings and adduce new evidence. The husband filed a Response seeking a dismissal of the further Orders sought by the wife.
The proceedings were listed for hearing on 20 September 2012 and on 14 September the wife filed a further Amended Initiating Application in which she sought orders that:
a)The Applicant Mother should have sole parental responsibility for the children X and Z;
b)The mother should be permitted to discontinue Z’s enrolment at (omitted) Public School; and
c)She should be permitted to enrol Z at (omitted) Public School.
In a succinct affidavit sworn on 17 September 2012, the father set out his position very clearly:
I do not agree for the Applicant to have sole parental responsibility for Z. I agree that the Applicant can have sole parental responsibility with regard to X…
…I seek that Z continue to attend (omitted) Public School until the end of this school year in accordance with his wishes.[2]
[2] Affidavit of Mr Higgins 17.9.2012 at paragraphs [5] and [6]
The Independent Children’s Lawyer submitted that the following Orders should be made (summarised):
a)That the mother have sole parental responsibility for X but notify the father within 7 days of any major long-term decisions;
b)The parties are to retain equal shared parental responsibility for Z;
c)In the event that the parties are unable to come to a joint decision about Z or Y, they are to consult with a family dispute resolution practitioner as defined under s. 10G of the Family Law Act to seek assistance;
d)The parties are to do all things necessary for Z to discontinue his enrolment at (omitted) Public School effective from the conclusion of Term 4 2012; and
e)The parties are to do all things necessary for Z to cause his enrolment at (omitted) Public School effective at the commencement of Term 1 2013.
Evidence
The mother relied on the following affidavits:
a)her affidavit sworn 22 August 2012;
b)her affidavit sworn 9 August 2012; and
c)the affidavit of Mr F sworn 24 August 2012.
The father relied on his affidavit referred to above.
The mother gave oral evidence and was cross-examined by Mr Rosic of counsel, who appeared for the father, and Mr E of counsel, for the Independent Children’s Lawyer.
It was the mother’s evidence that she has been cohabiting with Mr F since February 2011, and they now have a baby girl, called W, who was born on (omitted) 2011.
The mother was critical of the father’s attitude to X, stating that:
Mr Higgins has also punished X by withholding her possessions, refusing to acknowledge her and ignoring her. He has not spoken to her since 14 February 2011. This has continued since the hearing dealing with parenting issues in August 2011, it has continue(d) since the AVOs were resolved and dismissed in February 2012.[3]
[3] Affidavit of Ms Higgins 9.8.2012 at paragraph [87]
The mother deposed that she had sought the return of X’s belongings, without success, even to the extent pursuing a Property Recovery Order through the Local Court of New South Wales at Bankstown. The father told the Court that he had “got rid” of X’s possessions.[4]
[4] Ibid at [92]
The mother went on to depose:
94. X was devastated by hearing that her father had disposed of her items. X said to me words to the effect of “Well I guess that just proves how he feels about me if he has gotten ridden of all my stuff then I guess he doesn’t want me either”.
95. X has been saying to me words to the effect of “When I turn 18 I’m changing my surname, I don’t want anything to do with him anymore because he has rejected me”.
The mother’s affidavit of 22 August 2012 deals with her proposal to change the child Z’s school from (omitted) Public School. She deposed that her reasons for her proposal to change the child’s school are because she has moved to live at (omitted), and (omitted) Public School is much closer than (omitted) Public School.
The mother deposed that on Tuesdays and Wednesdays, when she is working, she drops Z off at before school care at (omitted) Public School at 7:00 am. On Fridays her sister takes Z to school and Mr F’s mother picks him up from school in the afternoon.
By comparison, the mother deposed that (omitted) Public School is only a 10 or 15 minute walk from her current residence, which would save time and money. She also deposed that the father is not paying child support.
In cross-examination by Mr Rosic, for the father, the mother agreed that there was communication between her and the father on major issues but a lot of the communications from the father were hostile and not helpful.
The mother told Mr E for the Independent Children’s Lawyer that X was currently studying for the Higher School Certificate. The mother also said that she had no intention of changing “anyone’s” name.
Mr F’s evidence was that he was in a committed relationship with the mother and that they have the one child. He said that he had a good relationship with each of the mother’s three children. He deposed that he had settled property issues with his former partner and, as a result, he has retained a house at (omitted) in which he lives with the mother and her children.
Mr F was not required for cross-examination.
The father gave oral evidence and was cross-examined by the mother’s solicitor, Mr Reeve, and Mr E of counsel. He said that he had not spoken to X since August the year before. He had on one occasion visited the McDonald’s Restaurant where X worked. He had ordered at the drive through area where X was working but had not spoken to her apart from saying “thank you” when she gave him his change. His explanation was that “she was working.” He went to say that he had no communication with her.
In cross-examination by Mr E, the father said that when X was ready to speak to him, he would be there.
As to the child Z, the father said that he still wanted to have an active role in the child’s life.
Submissions
It was submitted by Mr E for the Independent Children’s Lawyer that the mother should have sole parental responsibility for X. The father’s evidence in respect of X was “quite damning”.
He submitted that the Court would be satisfied, under s. 61DA(4), by the evidence that it would not be in X’s best interests for her parents to have equal shared parental responsibility for her.
Mr E relied on the decisions of Chappell v Chappell[5] and Marvel & Marvel (No 2)[6] in support of the proposition that equal shared parental responsibility would not be in X’s best interests and that the mother should have sole parental responsibility. He also referred to the comments of the Family Consultant in the Family Report, who said at paragraph [80] that the father:
…appears unable to accept the responsibility of his own actions as in any way contributing to the damaged father-daughter relationship and, although visibly distressed by the current situation and the AVO, he demonstrated little ability to emphasis with X or place her behaviour in a developmental context. This raises doubts as to the potential for his relationship with X to be easily repaired and rebuilt in a sustainable way.[7]
[5] [2008] FamCAFC 143; (2009) 39 Fam LR 627
[6] [2010] FamCAFC 101; (2010) 43 Fam LR 348
[7] Family Report page 27 at [80]
Mr E submitted that, having regard to the father’s evidence in cross-examination, very little has changed in regard to his attitude. The relationship between the father and his daughter is non-existent and is so due to the father’s poor attitude towards her.
As to Z, it was submitted on behalf of the Independent Children’s Lawyer that whilst the mother is the primary carer for the child, it does not follow that she should have sole parental responsibility for him. The parties do not communicate well but nevertheless have been able to agree about major long-term decisions about Z. They have agreed that Z should attend (omitted) Public School, but differ as to when the change should take place.
The Independent Children’s Lawyer submitted that the mother had led no compelling evidence of urgency that would persuade the Court to make an order permitting Z to commence at (omitted) Public School at the commencement of Term 4 rather than at the beginning of Term 1 in 2013.
For the mother, Mr Reeve submitted that the evidence shows that she cannot reasonably be expected to share decision making with the father, and the difficulties are particularly acute for Z. Whilst Y and X have of necessity found strategies to deal with the conflict between their parents. Z is younger than the other two and is more dependent on his parents. However, it is submitted, their level of co-operation is non-existent.
Mr Reeve submitted that the level of communication between the parents and the overall relationship between them has broken down entirely. The father is less able to conduct himself in a way that minimises the harm to the children caused by this lack of cooperation than the mother is.
He also submitted that the father had done nothing to initiate contact with his daughter in order to rescue the relationship with her. He did not hide his dislike for the mother when he was cross-examined and was not willing to accept anything that implies an association with her. He went on to submit that the father had no difficulties in involving the children in the parental conflict and lacks understanding and insight about how they feel. He continues to use the boys as messengers between himself and the mother.
As to the proposed change to Z’s school, Mr Reeve submitted that the arrangements required to keep the child at (omitted) were causing the mother great difficulty in arranging transportation and balancing her work life. The Court would not be satisfied that Z’s continued enrolment at his current school is in the child’s best interests.
Mr Reeve also submitted that the Court would have great difficulty in being satisfied that equal shared parental responsibility for Z or X could be managed and exercised by the parents.
For the father, Mr Rosic submitted that the mother’s position in August 2011 had been that the parties should have equal shared parental responsibility for the children but she had subsequently changed her position. As far as X is concerned, nothing has changed.
Despite the animosity between the parties, there is still effective communication.
The father’s position in respect of the proposed change of school for Z was reasonable in the circumstances but the mother’s position was unreasonable. It would be far easier for Z to start afresh at his new school at the beginning of Term 1 in 2013 than to change schools during the year.
Mr Rosic submitted that the mother should be responsible for the costs of the Independent Children’s Lawyer.
Parental Responsibility
Section 61B of the Family Law Act defines parental responsibility in relation to a child as meaning:
…all the powers, responsibilities and authority which, by law, parents have in relation to children.
Subsection 61DA(1) provides that:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best of the child for the child’s parents to have equal shared parental responsibility for the child.
However, subsection (4) of s. 61DA provides that:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption of equal shared parental responsibility was considered in some detail in Chappell v Chappell[8], a decision of the Full Court of the Family Court. At paragraph [75] of their decision, Warnick, Boland and Thackray JJ had this to say about rebuttal of the presumption:
In order to rebut the presumption it is necessary for the court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the court must take into account the prescribed matters in s 60CC(2) and (3), one of which requires the court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.[9]
[8] [2008] FamCAFC 143; (2009) 39 Fam LR 627 – the report in the Family Law Reports wrongly describes the decision as an appeal from a Federal Magistrate when it is clear from the text of the decision that it is an appeal from a decision of a Family Law Magistrate of the Family Court of Western Australia
[9] (2009) 39 Fam LR 627 at [75]
Conclusions
The mother is seeking sole parental responsibility for the children X and Z, who live with her, and equal shared parental responsibility with the father in respect of the child Y, who lives with the father. She claims, with some justification, that communication is difficult and marked by hostility.
However, it is not just a case of the parent who has the primary care of the child having sole parental responsibility, because the mother is not seeking that the father should have sole parental responsibility for Y. As the decision in Chappell v Chappell and subsection 61DA(4) make clear, the Court must be satisfied that it would not be in the best interests of the child concerned for the parents to have equal shared parental responsibility for that child in order to rebut the presumption.
This means, in my view, that the children must be considered individually, as the evidence shows that different considerations apply in respect of X and Z.
X was born on (omitted) 1995. She is now 17 years old. Sadly, X has been estranged from her father since before her 16th birthday as a result of an incident in February 2011, which led to the issue of an Apprehended Violence Order against the father, naming the mother and X as protected persons. That order is no longer in force.
It is clear from the evidence that the estrangement has persisted and has become worse, if anything. True it is that the father, through his solicitors, made an approach suggesting that he would like to spend time and communicate with X at an appropriate time, but was prepared to wait until she was ready. The fact is that the father has done nothing to heal the rift.
The father seems unable to comprehend that his daughter has been wounded by the circumstances of the separation from her father and feels that he has rejected her. The mother’s undisputed evidence that the father said that he had disposed of X’s belongings has clearly heightened X’s sense of rejection.
The circumstances of the father’s encounter with X when she was working at McDonald’s do not show the father in a good light. He was obliged to deal with her at the drive-through when paying for his purchase but could not bring himself to acknowledge her and address her by name. His evidence was that he said “Thank you” when she gave him his change but did not otherwise converse with her because “She was working”.
The insensitivity of the father’s behaviour to his daughter is breathtaking. The most likely inference that she would have drawn was that her father had rejected her in public, which must have been heartbreaking for her. It is all very well for the father to sit back and say that he will be there when X wishes to reopen contact, but he has done nothing to show that he has done anything to show any interest in her life at all. He has made no inquiries about X’s health, education or welfare, explaining that he was “scared” to do so.
The father is an adult; X is still a child. It is unrealistic to expect her to make any move to heal the rift between them when he has not done the slightest thing to show any desire to do so himself, apart from a solicitor’s letter in August 2011.
The incident at McDonald’s is a telling indictment of the father’s attitude to his daughter. He has failed to take the opportunity to participate in making decisions about major long-term issues in relation to her, or to spend time with her, or communicate with her (see subsection 60CC(3) at (c)).
As the Independent Children’s Lawyer has submitted, the mother was unable to provide any evidence of any major long-term decision that will be required to be made in respect of X before she attains the age of 18 on 24 July 2013.
In my view, the impact on X of the Court making a decision that her father, who has, in her eyes at least, rejected her, would be deeply wounding to X.
I am satisfied that the evidence shows that it would not be in X’s best interests for her parents to have equal shared parental responsibility for her. An order will be made that the mother is to have sole parental responsibility for X, but I accept the suggestion of the Independent Children’s Lawyer that the mother should notify the father within seven days of any major long-term decisions she is required to make in respect of X.
It appears, however, that Z is in a different position. True it is that he, too, is living primarily with his mother, but there is no rift with his father. Z spends time with his father and with his brother. The father expressed a view about Z’s proposed change of school, to the effect that it should not take place during the year but at the beginning of Term 1 in 2013.
There is a communication between the parties about the boys, although it is made unnecessarily unpleasant by the father’s insulting tone. I note from the mother’s affidavit of 22 August 2012 that the father will communicate by text message, although his decision in the text quoted at paragraph 13 of the mother’s affidavit to use the mother’s previous surname of (omitted) is immature and inflammatory. The father would be well advised to refrain from rudeness in his communications with the mother in future. It sets a bad example to the children for him to address their mother in this way.
Nevertheless, I am not satisfied that the evidence is sufficient to show that equal shared parental responsibility for Z is not in his best interests.
The decision about the mother’s proposal to change Z’s school from (omitted) to (omitted) Public is a proposal for a parenting order under s.64B of the Act. Where a court is deciding whether to make a parenting order, the court is required by s.60CA of the Act to regard the best interests of the child as the paramount consideration (see Re G: Children’s Schooling[10]).
[10] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
The mother points to the difficulties and the expense involved in continuing to send Z to (omitted) Public School rather than (omitted). This may be so, but she has not made out a case that it is in the best interests of the child that this change should take place at the beginning of Term 4 2012 rather than at the commencement of school in 2013.
In my view, changing schools during the year is undesirable and usually not in a child’s best interests. It is usually disruptive. The father has stated that Z expressed distress at the concept of changing schools.[11]
[11] Affidavit of Ms Higgins 22.8.2012 at [13]
In my view, the best time for the child to go to a new school is at the beginning of Term 1 in 2013.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 26 March 2013
4
1