HILLAM and KRAFT

[2019] FCWA 245

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

LOCATION: PERTH

CITATION: HILLAM and KRAFT [2019] FCWA 245

CORAM: DUNCANSON J

HEARD: 18, 19 NOVEMBER 2019

DELIVERED : 21 NOVEMBER 2019

FILE NO/S: PTW 4774 of 2012

BETWEEN: MS HILLAM

Applicant

AND

MR KRAFT

Respondent

Catchwords:

CHILDREN - where 17 year old child is estranged from mother - where the mother seeks an order that he spend time with her - child's views - where it is in the best interests of the child to order that the child spend time and communicate with the mother in accordance with his wishes

Legislation:

Family Court Act 1997 (WA) s 66C, s 70A

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillam and Kraft has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act (WA).

INTRODUCTION

1These proceedings concern the child [M] who is 17 years of age. M lives with the father, [Mr Kraft] and it is not in dispute that he will continue to do so. M does not spend time, or communicate with the mother, [Ms Hillam]. She seeks orders requiring him to spend time with her.

THE ORDERS SOUGHT

2The mother had not filed a minute setting out the final orders sought by her at trial. She explained that she seeks an order that M spend time with her and she wants him to have two visits with her prior to Christmas 2019. This order would not be subject to M's wishes. The mother also wants M to communicate and spend time with his half-brothers, [Child A] who is 15 years of age and [Child B] who is 13 years of age.

3The orders which the father seeks are contained in a minute of orders within his papers for the judge filed 1 November 2019. Those orders are as follows:

1The child, [M], born 2002 live with the father.

2The father have sole parental responsibility for [M] including major long-term issues in relation to the care, welfare and development of the child as defined in s 7A of the Family Court Act 1997 (WA).

3The father shall ensure that any cards, correspondence or other contact initiated by the mother and sent to the father are provided to [M] and shall (or shall cause his solicitors to) confirm the same by email to the mother. Any such cards, correspondence or other contact from the mother shall be sent to the father's solicitors at [Law Firm A] unless otherwise notified to the mother.

4To the extent not previously effected by the parties:

(a)the mother be at liberty to provide the contact details for herself and her other children in writing to [M's] school; and

(b)the father shall authorise [M's] school to provide those contact details to [M]

and thereafter, the father shall ensure that [M] is encouraged to, and at liberty in [M's] discretion to initiate contact and thereafter communicate with the mother and/or her children.

5The father shall authorise the school to provide to the mother upon her request to the school, copies of [M's] then current:

(a)school report; and

(b)annual school photo.

6The parties keep each other informed of their contact details including address, email and mobile phone numbers. Such contact details from the mother shall be provided to the father's solicitors at [Law Firm A] unless otherwise notified to the mother.

7The father retain [M's] passport in his safe keeping pending [M] attaining the age of 18 years.

8All previous orders be discharged.

9The proceedings otherwise be dismissed.

10Costs.

4The father explained that he does not wish to have any direct communication with the mother and such communication should be through his solicitors Law Firm A of [Town A].

AGREED MATTERS

5In closing the mother confirmed that she agreed to all but one of the orders sought by the father in his minute of proposed final orders as set out above.

6With reference to the order for parental responsibility, the mother requires the father keep her informed of all major long-term decisions made concerning M, to which the father agreed.

7The father also explained that paragraphs 4 and 5 of his minute of proposed final orders had already been given effect to, following the parties' attendance at mediation in 2018.

8The primary issue in dispute is as follows:

•whether orders should be made for M to spend time and communicate with the mother; and if so, whether or not those orders should be subject to, or in accordance with M's wishes.

FAMILY BACKGROUND AND SHORT HISTORY

9The mother was born [in] 1966. She is 53 years of age. The mother has two children from her relationship with [Mr Hillam] (deceased), [Child C], born [in] 1986 and [Child D], born [in] 1988.

10The father was born [in] 1975. He is 44 years of age.

11The parties commenced cohabitation in late 1999.

12The parties separated on [in] 2001. M was born [in] 2002. In about April 2002, the father commenced cohabitation with his partner, [Ms T]. They have one child [Child E], born [in] 2008.

13The mother was M's primary caregiver after his birth. In 2007 M began spending time with the father.

14The mother married [Mr L] [in] 2004. The mother and Mr L have two children, Child A, born [in] 2004 and Child B, born [in] 2006. The mother and Mr L subsequently separated.

15Mr L married [Ms P] [in] 2009.

16In August 2010 Child A and Child B were removed from the mother's care by the Department for Child Protection ("DCP" as it then was) and placed in the care of Mr L.

17In December 2010 M was removed from the mother's care by DCP and placed in the care of Mr L and Ms P.

18[In] December 2010, DCP placed M in the father's care in Town A where he has remained since.

19M spent supervised time with the mother and communicated with her. [In] January 2012 Mr L and Ms P and the children visited the father in Town A.

20M last spent time with the mother [in] February 2012. Since February 2012, M refused to spend time with the mother. M last spoke to the mother [in] March 2012. She last sent a letter and parcel to him in 2013.

21[In] August 2012 the mother commenced these proceedings.

22On 30 September 2016 the single expert witness, [Ms C] published her first report.

23On 27 April 2017 Ms C provided her second report.

24In March 2017, Child A and Child B were returned to the care of the mother pursuant to court order by consent. M has not spent time or communicated with Child A and Child B since their return to the mother's care in 2017.

25In April 2017 the father added his name to M's birth certificate.

THE PARTIES AND THEIR EVIDENCE

26The mother relied on her affidavit filed 25 October 2018. The father relied on his affidavit filed 19 November 2018.

27The father relied on reports from Ms C dated 30 September 2016 and 27 April 2017. Ms C was not required for cross-examination, notwithstanding that the mother does not accept aspects of her reports.

28Both parties were self-represented litigants. M was no longer represented by an independent children's lawyer. I explained the trial procedure to the parties and I am satisfied they understood it.

29The father's evidence was short and to the point. He asked few questions and gave brief answers. I am satisfied the father gave truthful evidence.

30The mother had a long list of questions to be asked of the father. On several occasions I explained to her that many of the matters raised by her were not relevant to the issue I had to determine. The mother had strong feelings about the circumstances of M's removal from her care and what she believes to be M's alienation from her. The mother made her position clear to me and I was left in no doubt about matters which are important to her.

31Both parties were courteous to each other and respectful to the court.

THE LAW

32These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").

33In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.

34In deciding whether to make a particular parenting order, I must regard the best interests of M as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary and additional considerations respectively.

PARENTAL RESPONSIBILITY

35Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

36Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue, long-term issues are issues about the care, welfare and development of a child of a long term nature including issues about:

(a)the child’s education (both current and future); and

(b)the child’s religious and cultural upbringing; and

(c)the child’s health; and

(d)the child’s name; and

(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

37The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there are reasonable grounds to believe a parent has engaged in abuse or family violence. There was family violence between the parties at the time of their separation. The presumption does not apply in the circumstances of this case.

38Even if the presumption had applied, as discussed below I am satisfied that it has been rebutted by evidence which satisfies me that it is not in the best interests of M for his parents to have equal shared parental responsibility.

39The parties agree the father should have sole parental responsibility for M.

PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child's parents

40M has a meaningful relationship with the father and it is to his benefit that it continues. M does not have a meaningful relationship with the mother. He does not wish to spend time or communicate with her and has not done so since 2012. In these circumstances and at this time I am unable to find that it is to his benefit to have a meaningful relationship with her.

the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence

41At the time M was removed from the care of the mother, DCP believed that while he was in her care he was at risk of sexual and physical abuse from his older brothers.

42M reported to Ms C that the mother hit him with a wooden spoon and his half-brother, Child D lit a cigarette and placed it on his abdomen. M described aspects of the mother's neglect of him.

43The mother denied M was at risk of harm in her care, or that she neglected him.

44I am satisfied there is not a need to protect M from harm in the care of the father. It was not suggested that he would be at risk of harm from being subject to, or exposed to abuse, neglect or family violence should he spend time or communicate with the mother in the future.

THE ADDITIONAL CONSIDERATIONS

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

45The father stated M does not wish to communicate or spend time with the mother. The mother's contact details and those of his half-brothers have been provided to him. He is at liberty to contact them, but does not wish to do so.

46M was interviewed by Ms C in April 2017 when he was 14 years and 8 months of age. Ms C reported:

20.In terms of when he thinks about his mother now he says he remembers the "pain. I guess all the mean things she's done, brings back bad memories". When asked how often he thought his mother he said "not very often. I don't think about her at all. He mentioned that he does think about "that whenever I visited her she would always act really nice when other people were around'. In terms of meeting his mother again he said "I wouldn't really want to because the mean things she's done". When asked about speaking on the phone with her he said "I don’t want any contact with her, she would try and be really nice". When asked what the father had told him concerning his mother he said "he doesn't really talk about her". When asked what his father thought of his mother he said "she's not a very nice person. He just never really talks. It doesn't look like he thinks she is a really nice person, just whenever he has to go to court and something".

…

22.When asked about what his stepmother might say about his mother he said "she never speaks about her. They don't ever really talk about her". When the child was asked how he felt when he was told about court he said "not much. I really hope for the best. I hope hopefully I can live with my dad". When asked what he worried about in relation to this he said "being taken away from my dad, yeah, I do get worried". When asked if he was able to live with his father would he desire contact with his mother he said "I wouldn’t want any contact because she's really mean".

47The single expert suggested to M that counselling may be of assistance to him to help with his problems with the mother and he said "I really wouldn't want to. I just don't want any contact with her."

48Ms C reported at 39 as follows:

39.It is likely that there has been a combination of factors involved to lead the child to his current views. This has likely included being aware of court-related proceedings, his own experience with his mother and discussions concerning the mother within his present home environment. The child is aware of the father's position in respect of his mother and it does appear that he is aligned with his father.

49Ms C opined that M is of an age where his views should be taken into account and significant weight provided to them.

50The father described M as calm, gentle natured and mature. I am satisfied that at this time M does not wish to spend time, or communicate with the mother, but could do so if he chose to.

51I attribute significant weight to the view expressed by M. He is 17 years of age. He has the emotional maturity and level of understanding to express a view which should influence the outcome of parenting orders.

the nature of the relationship of the child with -

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child)

52M has a close and loving relationship with the father. The father described him as "good to have a yarn with". He said they are close and M confides in him. M has a good relationship with Ms T and his half-brother Child E.

53M has a good group of friends.

54In December 2018, the father and Ms T took M and Child E to [Country B] to meet and spend time with his paternal family including the father's mother, brother, nephew, aunts and uncles and cousins.

55M does not have a relationship with the mother or either of his half-brothers. Despite having the opportunity to contact them, he chooses not to do so.

the extent to which each of the child's parents has taken, or failed to take, the opportunity -

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

56The father has made decisions about major long-term issues in relation to M who lives with him. The father has maintained M.

57The mother has not had an opportunity to participate in making decisions about major long-term issues in relation to M or to spend time or communicate with him.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

58It is not proposed that M be separated from the father or Ms T and his half-brother Child E, with whom he has lived with since 2010. It would be a significant change in his circumstances to spend time with the mother. While he maintains his resistance to spending time with the mother, an order requiring him to do so is likely to have a detrimental effect upon him. Such an order would not accord with M's wishes. Such an outcome has the potential to upset and destabilise him when he is currently otherwise happy and settled and making good progress at school.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

59The mother lives in Perth. M lives in Town A. The practical difficulty and expense arises from the distance between the parties' homes. A further practical difficulty would arise from a requirement that a mature 17 year old do something he is firmly opposed to doing.

the capacity of -

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs

60The father is capable of providing for M's needs on all levels. M is in Year 10. He undertakes work experience one day a week and has the opportunity to consider an apprenticeship after the completion of Year 11 at the end of 2020. His 2018 end of semester school report is favourable.

61The father deposes at paragraph 72 of his affidavit:

72.I have monitored [M's] wellbeing since he came into my care, and been conscious that perhaps his circumstances and the nature of his relationship with his mother could become matters about which he would benefit from counselling. In my view, he has not needed counselling to date as he has been a happy, healthy boy who has a good group of friends, behaves well and is progressing at school.

62I have no doubt that the mother loves M very much and strongly believes that he should not have been removed from her care. She also strongly believes that if she was able to have some direct contact with him, their relationship could be repaired. The mother's belief is so strong that she urged me to order that M spend time with her regardless of his opposition to doing so.

63I asked the mother if, notwithstanding M's age and maturity, I should disregard his views and make the orders she sought. She said she would appreciate that to occur just once before Christmas. She said the time between now and 18 years is of the essence. When I asked her what she hoped would come of the meeting, she said "that [M] knows that his mum loves him, as she did when he was a young boy, unconditionally from here to the moon and back and infinity". Unfortunately the mother seemed unwilling to appreciate that orders contrary to M's views might have an adverse impact upon him and have the potential to destabilise him and cause emotional harm. She was hopeful that after one visit their relationship could be restored. Having regard to M's age, maturity and firm views, I was not persuaded of this.

64The mother's strong desire to see M leaves her with limited insight into M's emotional needs.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

65M is [17 years of age]. He is a mature boy, close to adulthood.

if the child is an Aboriginal child or a Torres Strait Islander child -

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

66This consideration is not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

67The father deposed and I accept that if M expressed a wish to have contact with the mother he would facilitate that. I consider the father will comply with court orders.

68It was suggested by Ms C that M might have been influenced by things said in the father's home about the mother. That may be the case, but I do not consider the father has deliberately or knowingly alienated M from the mother.

69The mother has been consistent in her desire to spend time with M and restore her relationship with him as is evidenced by her efforts in these proceedings.

any family violence involving the child or a member of the child's family

70There is no family violence involving M or a member of his family.

if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

71There is no family violence order in effect.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

72These proceedings concerning M commenced in 2012. From time to time he has been made aware of them. He has been interviewed by a family consultant and by the single expert witness. He was aware of the trial.

73It would be in M's best interests that these proceedings be concluded and I shall take that into account when making parenting orders.

any other fact or circumstance that the court thinks is relevant

74The father has considered counselling for M. He has monitored M's wellbeing since M went into his care. In the father's view M has not needed counselling to date and he described M as a happy, healthy boy, who has a good group of friends, behaves well and is progressing at school. The father further deposed that M has not shown any signs of trauma, distress or behavioural issues, but if that changed he would assist him to obtain any services and assistance he could benefit from.

CONCLUSIONS

75Having considered all of the evidence in the context of the primary and additional considerations I have come to the conclusions set out below.

Parental responsibility

76The parties agree the father should have sole parental responsibility for M. I am satisfied such an order is in his best interests. M has not spent time with the mother for over seven years and does not wish to do so. She is not involved in his care. The parties do not communicate and the father does not wish direct communication with the mother.

Spend time arrangements and communication with the mother

77I consider it would be in the best interests of M to make an order that he spend time, or communicate with mother in accordance with his wishes. I considered making no order having regard to his age, however the order I intend to make leaves the door open for contact in the future. Undoubtedly the father will explain the terms of the orders to M and it is hoped that it is clear to him that the court has taken into account his views and placed weight on them.

78M is a mature 17 year old. In these circumstances I have accorded significant weight to his views which I accept have been truthfully conveyed to the court by the father.

79To ignore or disregard M's views has the potential of causing emotional harm and confusion to him. His ongoing stability and continued happiness are significant factors in my decision.

THE PROPOSED PARENTING ORDERS

80Subject to hearing from the parties, the orders I propose to make are largely those contained in the father's said minute and are set out below. Orders 1 to 3 and 5 to 10 are made by consent and order 4 is made by determination.

1All previous parenting orders be discharged.

2The father, [Mr Kraft] have sole parental responsibility for the child [M] born [in] 2002.

3The father shall, through his solicitors, [Law Firm A], promptly inform the mother, [Ms Hillam] of any decision made as it relates to a long-term issue concerning the child.

4The child spend time and communicate with the mother in accordance with his wishes.

5The father shall ensure that any cards, correspondence or other contact initiated by the mother and sent to the father are provided to the child and shall (or shall cause his solicitors to) confirm the same by email to the mother. Any such cards, correspondence or other contact from the mother shall be sent to the father’s solicitors at [Law Firm A] unless otherwise notified to the mother.

6To the extent not previously effected by the parties:

(a)the mother be at liberty to provide the contact details for herself and her other children in writing to the child's school; and

(b)the father shall authorise the child's school to provide those contact details to the child

and thereafter, the father shall ensure that the child is encouraged to, and at liberty in the child's discretion to initiate contact and thereafter communicate with the mother and/or her children.

7The father shall authorise the school to provide to the mother upon her request to the school, copies of the child's then current:

(a)school report; and

(b)annual school photo

and these orders are authority to the child's school to provide the said documents to the mother.

8The parties shall keep each other informed of their contact details including address, email and mobile phone numbers. Such contact details from the mother shall be provided to the father's solicitors at [Law Firm A] unless otherwise notified to the mother.

9The father retain the child's passport in his safe keeping pending the child attaining the age of 18 years.

10To the extent not already done, the independent children’s lawyer be discharged.

11All extant applications be otherwise dismissed.

12All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

13In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

14In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 12 and 13 above do not apply

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
Associate

21 NOVEMBER 2019