J and R
[2002] FMCAfam 137
•17 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & R | [2002] FMCAfam 137 |
| FAMILY LAW – Child’s best interests – section 68F(2). B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 |
| Applicant: | T C A J |
| Respondent: | J C R |
| File No: | HBM2624 of 2001 |
| Delivered on: | 17 May 2002 |
| Delivered at: | Devonport |
| Hearing Date: | 19 & 20 February 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. S. Mackey |
| Solicitors for the Applicant: | Crisp Hudson & Mann DX 70201 BURNIE TAS |
| Counsel for the Respondent: | Mr. P. McVeity |
| Solicitors for the Respondent: | McVeity & Associates DX 70505 ULVERSTONE TAS |
ORDERS
That A J R born 22nd February 1997 (“the child”) reside with the Applicant T C A J (“the Mother”).
That the Respondent J C R (“the Father”) have contact with the child as follows:
(a)During school terms each alternate weekend from 4.00 p.m. on Friday until 4.00 p.m. on Sunday;
(b)During school terms provided that the Father is not working each alternate week from 3.00 p.m. until 6.00 p.m. on the Thursdays following the Sundays referred to in (a) above;
(c)On the child’s birthday where it falls on a non contact day from 3.00 p.m. or after school until 6.00 p.m.;
(d)On Father’s Day when it falls on a non contact weekend from 10.00 a.m. until 4.00 p.m.;
(e)For half of the Easter, May/June, and the August/September school holidays on such days as may be agreed between the parties but failing agreement as the Court may order;
(f)For half the Christmas school holiday on such days as may be agreed between the parties but failing agreement as the Court may order provided always that such will include the period from 24th December at 10.00 a.m. until 25th December at 2.00 p.m. in the year 2002 and alternate years thereafter and shall exclude that period in the year 2003 and in alternate years thereafter;
(g)At such other times and on such conditions as the parties may agree.
That for the purposes of contact provided for in Order No.2 hereof the Father shall collect the child from the Mother’s residence at the start of each contact period and the Mother shall collect the child from the Father’s residence at the end of each contact period.
That neither party shall remove the child from the State of Tasmania for a period longer than three weeks without the written consent of the other party or an order of a Court of competent jurisdiction.
That the Mother be responsible for the child’s day to day care, welfare and development.
That the parties be jointly responsible for the child’s long term care, welfare and development.
That the Applications herein be otherwise dismissed.
AND THE COURT NOTES
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.
ANNEXURE “A”
CONSEQUENCES IF ORDERS ARE CONTRAVENED
Residence Order / Contact Order / Specific Issues Order
These orders may include a residence order made under the Family Law Act 1975. The residence order deals with the person or persons with whom a child may live
A person bound by the order must comply with the order. In addition, while the residence order is in force, a person must not, contrary to the order:
·remove the child from the care of a person; or
·refuse or fail to deliver or return the child to a person; or
·interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.
These orders may include a contact order made under the Family Law Act 1975. That order deals with contact between a child and another person or other persons.
A person bound by the order must comply with the order. In addition, while the contact order is in force, a person must not:
· hinder or prevent a person and a child from having contact in accordance with the order; or
· interfere with the contact that a person and the child are supposed to have with each other under the order.
These orders may include a specific issues order made under the Family Law Act 1975. That order deals with an aspect of parental responsibility for a child, other than the person or persons with whom the child is to live, contact between the child and another person or other persons, and maintenance of the child.
A person bound by the order must comply with the order. In addition, while the specific issues order is in force, and if the specific issues order confers responsibility on a person (the carer) for the child’s long-term or day-to-day care, welfare and development, a person must not hinder the carer in, or prevent the carer from discharging that responsibility.
If a person contravenes the order, a court may, on application:
· issue a recovery order authorising police officers to recover the child and to deliver the child to a person who has a specific issues order in relation to the child;
· order the person to attend a post-separation parenting program;
· require the person to enter into a bond;
· fine the person up to a maximum of $6,600;
· make a community service order against the person;
· imprison the person for a maximum of 12 months;
· vary the order that was contravened.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
HBM2624 of 2001
| T C A J |
Applicant
And
| J C R |
Respondent
REASONS FOR JUDGMENT
Background and applications
The Applicant, T C A J (“the Mother”) was born on 11th August 1982. She is therefore nineteen years of age. The Respondent, J C R (“the Father”) was born on 24th November 1980, so he is twenty one years old.
They are the parents of A J R (“the child”) who was born on 22nd February 1997.
The parties met while they were at school and their relationship lasted for about four years. Both were very young when the child was born, with the Mother being only fourteen years old.
The Mother was made a Ward of the State when she was only three years old and she was placed in numerous foster homes throughout her childhood. Indeed, it is the unchallenged evidence of one of her witnesses that she had at least twenty three placements before she was eleven years old.
It is quite clear that the Mother’s own mother had significant problems in relation to parenting because six of her children were made Wards of the State. It is therefore not surprising that the Mother has had a difficult relationship with the maternal grandmother.
The Mother made an Application for final orders for residence in the Family Court of Australia on 24th March 2000. The Father gave an undertaking to the Court on 2nd June 2000 that he would not use any illicit substances or allow or permit any other person to use illicit substances in the presence of the child. That undertaking was filed on 30th June 2000.
On 11th July 2000 interim orders were made by consent in the Family Court of Australia which provided that the child reside with the Respondent Father for three days per week from 12.30 p.m. on Wednesday until 12.30 p.m. on Saturday and reside with the Mother for the other four days of the week.
Consent Interim Orders were also made restraining the Father from using any illicit substance at all or allowing or permitting any other person to use any illicit substance in the presence of the child and each party was restrained from exercising corporal punishment on the child. It was noted in those Consent Orders that the parties intended to review the residential arrangements for the child at a Legal Aid Conference approximately three months later and that each party would be in substantial attendance when in contact with the child.
The Father filed his principal Response to the Application on 8th November 2000 and the Mother filed an Amended Application on 14th December 2001.
As part of the Court process, a short-form Family Report was prepared by a counsellor attached to the Family Court of Australia. That Report was released on 21st May 2001.
There have been numerous mentions of this matter in Court and conferences. The proceedings were eventually transferred to the Federal Magistrates Court of Australia on 27th June 2001.
On 25th July 2001 an Application by the Mother to suspend the Interim Orders of the Family Court of Australia was dismissed and I ordered that the child be separately represented. Unfortunately, the Order for separate representation appears to have ”slipped through the net” and when this matter came on for a hearing, both parties’ counsel agreed that the matter should proceed without any such separate representation.
Each of the parties is seeking an order for residence in relation to the child and orders for contact in favour of the other party in fairly standard form.
The Law
Section 60B of the Family Law Act 1975 (“the Act”) states:
60B(1) [Object of Part] The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) [Principles underlying object] The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents 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.
Section 65E of the Act provides 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.”
The Act gives very clear guidance to the Court in relation to what must be considered when determining what is in a child’s best interests. Subsection 68F(2) reads as follows:
68F(2) The court must consider:
(a) any wishes 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 wishes;
(b) the nature of the relationship of the child with each of the child's parents and with other persons;
(c) 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, with whom he or she has been living;
(d) the practical difficulty and expense of a child having contact 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;
(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(i) any family violence involving the child or a member of the child's family;
(j) any family violence order that applies to the child or a member of the child's family;
(k) 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;
(l) any other fact or circumstance that the court thinks is relevant.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 the Full Court of the Family Court of Australia (consisting of Nicholson CJ, Fogarty and Lindenmayer JJ) considered the interrelationship of Sections 60B, 65E and 68F. They said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”
Evidence and findings
The Mother relied upon the affidavits of herself, M P and D M. All were cross-examined.
The Father relied upon affidavits sworn by himself and his defacto wife, K S. They were both cross-examined.
In addition, the counsellor who prepared the short form Family Report was also cross-examined by counsel for both parties.
From the evidence before me, it is clear that the Mother was extremely young when the child was born. She has had a unsettled history almost all her life. From the time that she was an infant herself, she was moved “from pillar to post” in relation to placements as a Ward of the State. Her witness, M P, was a provider of foster care for children with her husband and the Mother came into their care before she was eleven years old. She stayed in their care until she became pregnant. Unfortunately for the mother, it was not the policy of the relevant government department for teenagers with children to be in care, so the Mother’s stay with the P family came to an end.
However, it is quite clear from the evidence of Mrs. P that the Mother still maintains a close relationship with her and she sees her on a regular and frequent basis. Indeed, it is quite clear to me that Mrs. P has, in effect, become the mother figure in the Mother’s own life.
For a short time, not very long ago, the Mother stayed with her own mother, after her own mother moved from Hobart to the North of Tasmania. That was an absolute disaster. It is not hard to understand why the Mother would want to try to have a relationship with her own mother, but is quite clear that she has learnt from that disastrous experience. She now says that she will only talk to her mother by telephone and she will only have short conversations.
The Mother says that she and her own mother differ in relation to child rearing and that her own mother’s view was that she should give the child “a clip around the ear” when she plays up. She does not like that view and, given her own mother’s history in relation to rearing children, it is pleasing to see that the Mother does not really have much contact with her own mother.
Counsel for the Father attempted to show that the Mother was living in conditions of absolute squalor while she stayed with her own mother. That attempt was unsuccessful and the photographs that were shown to the Mother while she was being cross-examined were not tendered in evidence.
I accept that the Mother has strong and loving links with Mrs. P and that she receives worthwhile support and guidance from her.
Further, the Mother also has support from a youth worker, Mr. M. That support also appears to be worthwhile.
The Mother has recently been granted assistance with accommodation by the Housing Commission and she now rents a modern two bedroom unit which is carpeted throughout. Her evidence is that it has enclosed external areas in which the child enjoys playing.
The Mother has not re-partnered.
It is the Mother’s intention to be a full-time parent to the child.
The child is currently attending a primary school that was chosen by the parties jointly. That is particularly pleasing and it is clear that the school chosen is not far from either parent’s home.
I was impressed by the evidence given by Mrs. P and it is indeed pleasing to see that the Mother, who is still only nineteen years old, has her support. Her advice and guidance is clearly sensible and well directed.
The assistance given by Mr. M is probably less important to the Mother, but is nevertheless valuable. That support may not be quite so important in the future, because it was Mr. M’s evidence that he had recently ceased being employed as a youth worker by the Agency that was employing him at the time that he swore his affidavit.
The Father is a student, completing a Diploma of Mechanical Engineering at the TAFE College at B. It is his plan to look for employment as an assistant engineer when he completes his study.
At the time of the hearing he was unable to be specific about his timetable for lectures and classes but he expected to be at the College for no more than nine hours per week. That could be spread over three days.
His plan for the care of the child during his studies would be that he would receive assistance from his own mother or a Mrs. H. Significantly, neither his mother nor Mrs. H provided any affidavit material.
It is also significant, in my view, that it was not his plan to have his defacto wife look after the child. She has her own child, L, who is aged two years.
As stated above, it is the Father’s intention to seek full-time employment after he completes his studies, so it is clear that he would not be available to look after the child during the week when she is not at school. That would be delegated to his nominated carer.
The Father was expecting to move his residence, because the home that he and his defacto wife were renting was both cold and damp.
It was a concern of the Mother that the child has been using inappropriate language after she spends time with the Father. After hearing the evidence of the Father and his defacto wife, I have no hesitation in coming to the conclusion that the Father, and more particularly his defacto wife use swear words that are being picked up by the child. The evidence also shows that Ms. S’s child, L, has also been using inappropriate language.
There is clearly some animosity between the Mother and the Father’s defacto wife. There is little that the Court can do about that other than to suggest that they both make an effort to improve their relationship in the interests of the child.
The Father’s defacto wife is currently engaged in a course of child care at a college. She hopes to find work as a child carer, at least on a part-time basis, after she completes that course.
The evidence appears to suggest that the relationship between the Father and his defacto wife has at times been stormy. They clearly have had some significant arguments and I accept his evidence that on at least one occasion his defacto wife has actually left the home after one of their arguments. I note that his defacto wife denied that she had ever left the home after any of their arguments.
In her report, the Family Court Counsellor stated that both the parents seem to have a loving relationship with the child and were committed to her care and well being. There was nothing apparent to indicate any inadequacy in either parent’s care of the child.
The counsellor stated the child seemed comfortable with both parents, but in the presence of the Father she seemed slightly more positive and participated more willingly and there was more laughter and some singing.
The counsellor stated that the Mother seemed at times to struggle a little in controlling the child’s activities.
It is my view that the interview process has been a little unfair on the Mother. The report reveals that the counsellor observed the Mother and the child for up to an hour but the observation of the Father and the child for up to forty five minutes was also in the presence of the Father’s defacto wife and her two year old son. From the point of view of observing parenting reactions, I do not believe that the playing field was level.
The Mother says that she was nervous during the interview process and, given her age, I accept that that was probably the case.
It seems to me that the counsellor, in coming to her recommendation, did not sufficiently address the fact that both the Father and his defacto wife plan to undertake employment. According to the Father’s plans, the child’s care while she is not at school will be undertaken by carers who have not been seen by the Court.
It is clear to me that the child has a warm and loving relationship with both her parents. And that the relationship will continue with both parents if a residence order is made in favour of one with regular contact in favour of the other.
Considering all the relevant factors in subsection (2) of section 68F of the Act, it is my view that the child’s stability will be best served by residing with her mother, who offers full-time care. Clearly, the child should also have meaningful contact with her Father which will also mean that the relationship with her paternal grandmother will be sustained, as will her relationship with the Father’s defacto wife and her child.
In the circumstances, I shall make orders that the child reside with the Mother and have contact with the Father.
I certify that the preceding fifty-wo (52) paragraphs are a true copy of the reasons for judgment of Roberts FM
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