Horton and Horton (No. 3)

[2007] FamCA 1533

FAMILY COURT OF AUSTRALIA

HORTON & HORTON (NO. 3) [2007] FamCA 1533

FAMILY LAW – CHILDREN – With whom a child lives – Best interests

Family Law Act 1975 (Cth)

APPLICANT: Mr Horton

RESPONDENT: Disability and Complaints Service of South Australia as Case Guardian for Ms Horton

INTERVENOR: Director - General, Department of Community Services (New South Wales)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 8005 of 1997

DATE DELIVERED: 19 November 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Cronin J

HEARING DATE: 19 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Aitken, Solicitor

SOLICITOR FOR THE RESPONDENT: Croydons

COUNSEL FOR THE INTERVENOR: Ms Boyle

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Wearne

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Aid New South Wales

Orders

1. That paragraphs 2-22 of the orders made by Bennett J on 31 August 2006 be discharged.

2. That the child M born … November 1995 live with the husband.

3. That the husband have sole responsibility for the major long-term decisions and also matters of a day-to-day nature regarding the child.

4. That the husband be restrained from saying things about the wife to or in the presence of M that would amount to denigration of the wife.

5. That all future communication between the husband and the wife be through the wife’s case guardian as advised from time to time in writing to the husband by the Disability Advocacy Support Service.

6. That the husband advise the Disability Advocacy Support Service of :

   (a)all major health problems suffered by M; and

   (b)any change of school involving M.

7. That the husband forthwith advise the Principal of the child’s school and any future school to advise to the Disability Advocacy Support Service any details normally provided to parents on a regular basis concerning their children, and for such information to be passed on to the wife.

8. That the husband be at liberty to provide to the school principals a copy of these orders.

9. That the Director-General of the Department of Community Services (NSW) monitor these orders for a period until 1 June 2008 and have liberty to apply on short notice in the event of any problem arising from these orders AND IT IS REQUESTED that the Department provide all such assistance as is possible to the husband and M to ensure that any appropriate program is made available to them.

10. That the wife be at liberty to communicate with M by cards, letters and gifts and the husband do all things necessary to facilitate such communication by delivering such objects to M and encouraging her to respond.

11. In the event that the husband intends to travel overseas:

    (a)the husband it to provide written notice to the wife of his intention to travel (including proposed dates of departure and return), a copy of his itinerary and return tickets, not less than 14 days prior to the proposed date of departure;

    (b)the wife is to provide written acknowledgement to the husband within 7 days thereafter and if she fails to do so, the husband may presume that there is no opposition to such travel; and

    (c)the wife have leave to bring an urgent application on notice to the husband in relation to the overseas travel.

12. All applications be otherwise dismissed and removed from the list of cases awaiting a hearing.

13. That the reasons for judgment this day be transcribed.

IT IS CERTIFIED

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the Independent Children’s Lawyer be discharged as and from 1 June 2008.

3. That the passport for M held by the Registry at Albury be returned to the husband forthwith.

AND IT IS NOTED that the wife has reserved her position in relation to future face-to-face contact with M.

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 8005 of 1997

MR HORTON  

Applicant

And

MS HORTON  

Respondent

REASONS FOR JUDGMENT

1. The child M was born in November 1995.  In a few days' time she will be 12 years of age.  Her father says she has the mind of an 18-year-old.  Quite frankly, I am not surprised.  On 31 August 2006, Bennett J made orders placing M in the care of her mother.  Much has occurred since then.  It would be fair to say that her Honour's orders have not worked.  However, it is still the Court's responsibility to make orders which are in the best interests of the child, and particularly not just to rubber stamp something because there is no other apparent option.

2. The evidence handed to me shows M is thriving.  Her attendance at school is excellent.  She is described as having a positive attitude to everything in her schooling.  She is industrious and making good progress in all areas.  The father says she will most likely get the highest awards of any student who has ever attended M's school.  Most importantly, M is about to commence high school.  At home she seems settled and at sport she excels.  All of this is vastly different to the picture that was painted not much more than a year ago.

3. The father filed the application to vary Bennett J's orders on 13 March 2007.  He sought a variety of orders couched in layman's language which still showed some anger and unhappiness about what had happened in the previous hearing.  In interim hearings before me throughout 2007, the father was still strongly voicing his unhappiness at the system, at his former wife, the lawyers and the Independent Children's Lawyer.  I am not in a position - nor should I go over the old ground, because this case is about M's future.

4. It is sufficient to say that Bennett J had much evidence that was not complimentary of the father.  Since then, the mother has been so badly affected by her medical condition that I was satisfied she needed a case guardian.  In that area it is clear that the mother cannot have a current meaningful relationship with her daughter in a face-to-face setting.  There is still a need for M to at least know that her mother exists and for the father to encourage that relationship. 

5. By way of background, the father is a farmer.  At the time that the matter was conducted before Bennett J, he was in receipt of an aged pension which was income-tested as well for M.  He had been previously married.  Following the separation in January 2005 and at the time of hearing before Bennett J, M had been living with her father.  The mother was born in the Philippines.  She arrived in Australia in 1992 and the parties married in September of that year.  That was her first marriage.

6. In August 2006, the mother was living in Adelaide in rental accommodation from an organisation assisting people who were affected by domestic violence.  She had been diagnosed with having a bipolar disorder.  Between separation and the time of the hearing before Bennett J, very little time was spent by the mother with M apart from a period of time when assessments were undertaken by a psychiatrist, Dr W.  It was Dr W who gave significant evidence before Bennett J.  Bennett J said:

   I am, frankly, a little perplexed about what to do because this puts me in a very difficult position.  I mean that I feel that at this point I should tell the Department of Community Services that not only does the child appear to have been exposed to these sorts of things but that the father's conduct in this court case and the materials that he provided to the court and apparently thinking that somehow that vindicates his position was part of his case.  The whole thing leaves me very concerned that if he thinks that his case is not going his way, this child may suffer as a result of that.  I am not quite sure what to do about that situation.  I don't know where the child is located.  I don't know whether she is in safe hands at the moment.  I am not sure what the court's position is on this but it seems to me something that cannot simply be left in the air.  Ordinarily, I would not voice this in front of [the father] but I do not have too much choice. 

7. Bennett J found that M was embroiled in the dispute between the father and the mother in a very serious way.  Bennett J went on to make some very strong comments.  Most of those comments really were not at all complimentary of the father.  Those comments were also supported by Dr W.  However, time has changed, and changed specifically because of three things.  First of all, M has returned to live with and remained with her father.  Secondly, the Department of Community Services, to whom Bennett J was referring, has had considerable involvement with M and determined she is safe.  The Department does not advocate her removal.  Thirdly, the mother’s medical condition has deteriorated to such an extent that she was declared an involuntary patient at one point in time this year.

8. The Department became involved and, from an interim hearing I conducted, they had an investigation undertaken by a case worker who has filed two affidavits.  In the first affidavit, Ms N set out her interview with M and M's school and I want to quote from Ms N's affidavit:

   MS [N]:   How would you describe dad?

   [M]:   He's a nice person.

   MS [N]:   What makes you describe him this way?

   [M]:   Because he helps people.  If people ask him to move furniture, he will move it without asking them to pay him.

   MS [N]:   Can you describe the way you feel about [the mother]?

   [M]:   I don't like her.  She is not my mother.

   MS [N]:   Can you give me some feelings about this?

   [M]:   She hurt me and hit me.

   MS [N]:   What about how you feel when you are with her?

   [M]:   Unsafe, scared and doublecrossed.

   MS [N]:   Can you explain what you mean by doublecrossed?

   [M]:   She says she is going to be a good mother and then doesn't.

   MS [N]:   How do you feel with dad?

   [M]:   Happy, safe, excited.

9. The other worker with Ms N said:

   How does dad feel about [the mother]?

   [M]:   Angry about court - annoyed.

10. The other worker with Ms N said:

    Does dad talk to you about his feelings?

    [M]:   No, we don't talk about [the mother] much.

11. In her second affidavit filed on 31 October 2007, Ms N said - and I quote from paragraph 9:

    Should the Family Court order that the department provide further intervention or supervision of [M], given the competing casework priorities at the [local] community services centre, I envisage that a caseworker would be able to meet with [M] approximately once per month for approximately one hour for a limited time frame.  If it was determined during this casework that [M] could benefit from a referral to external services, the department would recommend the same to [M] and her father and would assist the family to link those services.

12. A substantial amount of reliance in this case has been placed on an affidavit of Mr B which was not challenged.  Mr B is a social worker with considerable experience.  I found his evidence very helpful.  He interviewed M and he said:

    Despite [M]'s initial resistance and negativity, once away from her father and in the interview, she appeared reasonably relaxed, with rapport being quite well established between us after a short time.  [M] in fact attended well during the lengthy interview and maintained a good level of eye contact and was largely cooperative and reasonably open in most of her responses.  Her body language was for the most part relaxed and open in nature.  She presented as a bright, attractive and articulate girl.  Rapport development was assisted by initial discussion of less contentious matters including [M]'s passion for horse riding and her horse, […].

13. Mr B then went on to say:

    [M] told me she will be going to [the local] High School next year and it seems she and her father have looked at several high school options in the area, with [M] deciding on [the local] High [School] as it apparently has a well‑equipped technology department.

14. A little further, Mr B said:

    [M] reiterated that she wanted to be allowed to live with her father.  She rated herself as "10 out of 10 certain" about this.  She denied that this level of certainty ever changes for her and said she feels this way "all the time". 

15. Mr B then went on to say:

    When asked about how her father encourages her to maintain a relationship with her mother, she said, "He says, 'You've got to talk to her.  It's good for you to talk to her.'  When the court said I should see her in […], he said, 'You're going to, and it will make [the mother] happy.'  Dad doesn't like it when she is all sad.  He's a nice person."  [M] added, "I just don't like her."  When asked whether it was her mother's illness or her mother she didn't like, she said, "I don't like her or her illness." 

16. He then went on to say:

    After this discussion, [M] was directly asked about the type of contact she would like to have with her mother in the future.  Perhaps not surprisingly in light of the above, she said bluntly and firmly, "None."  She continued, "No letters, no email and no telephone." 

17. Mr B then went on to set out his synopsis and recommendations:

    [M] does seem to hold her own views about a number of matters and these may need to be given some consideration.  [M] is a very intelligent and mature girl.  She appears to be understandably quite attached to the [local] community. She mentioned friendships which have been of an enduring nature with several local girls.  She is particularly fond of her friend, […], and spends time with her in and out of school.  She would in my view experience a separation from her as a real loss.  Her connection with her animals should also not be underestimated from an attachment perspective.  She has a particularly strong bond with her horse, […].  

    [M] also seems to have her heart set on attending [the local] High School.  She has visited a number of schools with her father and has decided on [the local] High School due to the well-resourced technology department.  I would think, given the high level of motivation she has about attending this school and her general interest in achieving academically, it makes good sense to facilitate this, if at all possible.  I note when she was with the mother she refused school for over a month, and this may again happen should she be placed in a setting she is opposed to.

18. Mr B suggested that it was important for the Department of Community Services to have a watching brief.  That was also raised because of the father's likelihood of remarriage.  In a very poignant summary which I accept, Mr B said the following:

    [M] may also start to act out as she enters adolescence and by the middle of next year, this may become something of a problematic nature.  There are indeed many risk factors, not least the father's reported rigidity and other personality issues.  These may combine, with the next six to 12 months, with the confluence of [M]'s entry to high school and adolescence, leading to behavioural difficulties at home and school.  This possibility further demands some monitoring by the Department of Community Services in my view.  It may be also a consideration for not finalising these proceedings until mid to late 2008, if that is at all possible.

19. The father's initiating application sought a variety of orders including financial and other orders outside of my jurisdiction.  In the end, he really sought orders that he have the responsibility of a sole nature for the daily care of M.  Mr Aitken, on behalf of the case guardian, sought no specific orders for time between M and the wife but rather that there be an opportunity for future relationships together with the right to have access to M's progress.  That information would flow through the Disability Advocacy Service. 

20. Ms Boyle, for the Department, sought no orders and maintained that the Department would provide its assistance if it was able to do so.  Ms Wearne, as the Independent Children's Lawyer, could not consent to any orders but did not oppose them either.  Her position sought orders in line with Mr B's recommendations, including some communication orders and some variation of the overseas travel restrictions imposed by Bennett J.  Earlier this year, I permitted the lifting of the overseas travel injunctions on conditions.  No-one has suggested that those conditions were not met.  That is not really surprising now that M is heading to high school in circumstances where her educational advancement is highly valued by her father. 

21. The Family Law Act1975 (Cth) (“the Act”) sets out a path that I have to follow in a case such as this. Section 60B sets out the objects and the principles underlying those objects. Those objects are to ensure the best interests of the children are met by:

    (a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)      ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.

22. The principles underlying these objects are set out in s 60B(2), and they are that:

    (a)      children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; and

    (c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)      parents should agree about the future parenting of their children; and

    (e)      children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.

23. Section 60CA sets out that:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

24. Bennett J made orders that the wife have sole responsibility for the decisions about M. That is no longer appropriate. I propose to discharge those orders. Section 61B of the Act sets out -

    parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

25. It is important for M that one parent here have that responsibility.  It should be her father.  Normally a court would give consideration to the presumption of equal shared parental responsibility as a starting point, but I do not have to consider that here because under s 61DA(4), I could not be satisfied that it would be in M's best interests for that to occur.  Courts cannot create good parents.  We have to do the best we can with what is on offer.  Notwithstanding all of the findings of Bennett J and even some of the things that the father has said since, I think it is still in M's best interests that she live with her father and that he be responsible for her long-term welfare.

26. Section 60CC(1) says that whatever I do in relation to determining what is in M's best interests, I must consider the matters that are set out in sub-ss (2) and (3).  I will not set out those sections in detail here but I do want to make some comments about some of the matters that I think are relevant.  It is most unusual for a child of M's age to have such strong and unequivocal views, but for the purposes of sub-s (3)(a), I have taken those matters into account and I have given them considerable weight.

1. M is very close to her father and unfortunately has no relationship with her mother.  The father says that he will encourage and facilitate any relationship that can be created between M and her mother.  I can do no more than hope and wait and see.  There is no likely effect of these orders that I propose to make on M because apart from the short period of time that she has spent with her mother, the relationship has otherwise been minimal.  There are considerable difficulties in this case of a practical nature between M and her mother, caused by distance as well as by her mother's health. 

2. Notwithstanding the evidence before Bennett J and her Honour's findings, I am satisfied that M is now much older than she was at the time that the evidence was then gathered and that M is now very much focused on her schooling.  That clearly indicates to me that the father does have her best interests at heart, and in his own unusual way, notwithstanding all of the things that I have said, every indication is that he is fulfilling the necessary parenting role and he has the capacity to continue to do so.

3. I have taken into account the attitude of each of the parents demonstrated by what has occurred, and in particular I have taken note of the trauma that M has been through, and I intend to say no more about that.  There are no family violence issues any longer in this case, notwithstanding there were significant concerns before Bennett J.  It seems to me that the absence of contact between M and her mother has allowed things to settle.

4. Sub-section (3)(l) says that it should be a matter that I take into account that wherever possible, it is preferable to make orders that are at least likely to avoid the institution of further proceedings.  It is fundamental in this case to give M an opportunity to settle down, particularly as she is about to enter high school.  There is no evidence of what change the wife could make that would change the current relationship between M and herself.

5. I am obliged to consider as a fundamental issue sub-s (4) of s 60CC; it is important in this case to consider the background to some extent, but I propose to say nothing more about those facts on the basis that I hope that it is now time for everybody to move on for M's sake. 

6. I have also been asked in this case to make some travel restriction orders.  I have confidence, as a result of what I have heard and what I have read, that the father will take a responsible approach to overseas travel, but to give some comfort to the wife, I propose to make an order that she at least have notice about the travel and, if necessary, some urgent access to the court. 

7. I also want to add in this case that the Department of Community Services has been a very helpful and cooperative party to the proceedings, and I am going to impose upon them just a little longer with a request that they provide assistance.

I certify that the preceding Thirty Three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  31 December 2007