JENKINS & JENKINS

[2017] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENKINS & JENKINS [2017] FCCA 2125

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether a 13 year old child who has been self – harming should return to live with her mother or remain living with her father.

Legislation:

Family Law Act 1975 (Cth), ss.60CA(2), 60CC, 60CC(3)

Applicant: MR JENKINS

Respondent: MS JENKINS

File Number: MLC 6919 of 2017

Judgment of: Judge Small

Hearing date: 23 August 2017

Date of Last Submission: 23 August 2017

Delivered at: Melbourne

Delivered on: 23 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Lennon

Solicitors for the Applicant: Lennon Lawyers

Counsel for the Respondent: Ms S. Fisken

Solicitors for the Respondent: Schetzer Constantinou

ORDERS

1. There be interim parenting Orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 23 August 2017 (“the Minute”).

2. The lawyers for the Applicant engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.

3. The matter be adjourned to the Duty List of Federal Circuit Court of Australia on 5 December 2017 at 9:45am for Directions.

AND THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1. That the children of the marriage, X born (omitted) 2003 and Y born (omitted) 2007 (“The children”) live with the Mother from the conclusion of school on Thursday 24 August 2017 with the Mother to collect them from school.

2. That the child X (“X”) born on (omitted) 2003 be returned to the Mother’s care at the conclusion of school on Thursday 24 August 2017.

3. That the Father spend time with and communicate with the children as follows:

   (a)each Tuesday evening from the conclusion of school until 8:00pm;

   (b)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing 1 September 2017;

   (c)for the first week of the Term 3 school holiday period from the conclusion of school on Friday 22 September 2017 until 10:00am on Saturday 30 September 2017; and

   (d)such further or other times as agreed between the parties in writing.

4. That for the purposes of paragraph 4 the Father not attend at the children’s schools on the afternoon of 24 August 2017 nor interfere with the collection of the children by the Mother on this day.

IT IS DIRECTED THAT:

1. The Minute be placed upon the Court file and marked Exhibit “A”.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6919 of 2017

MR JENKINS

Applicant

And

MS JENKINS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter of Jenkins comes before me in the duty list on the first return date of the husband’s application for parenting and property orders, although we have only discussed today the parenting orders.  The two children of the marriage are X, who was born on (omitted) 2003 and who, therefore, is thirteen and three-quarters, approaching her 14^th birthday, and Y, who was born on (omitted) 2007 and who is therefore ten and a half.

3. The parties only separated in March of this year, some five months ago.  Initially, the children were living with their mother and spending Tuesday evenings and every second weekend with their father.  The father wants the children ultimately to have equal time with both parents in a week-about arrangement, but that was the arrangement was that in place.

4. The evidence of the affidavit material shows that the mother claims that the father was influencing the daughter X, particularly, in relation to the dispute between her parents, and that X was becoming distressed about that as, of course, any child who is torn between two parents does.  There was a period of time when X refused to see her father.  And then there was a period of time where X then went into her father’s care and has not returned.

5. Y - and we must not forget Y in these proceedings – Y was living with her mother and spending time with her father, even after X went to live with her father, and at times she too, was spending time with her father beyond what was agreed, but has now returned to live with her mother. 

6. The question before me today, essentially, is whether X should live with her mother and spend time with her father every second weekend from after school Friday to the commencement of school on Monday, plus every Tuesday evening, or whether X should live with her father and spend unspecified time with her mother. It is agreed that Y will live with her mother and spend that time with her father.  That agreement is not in place for X.

7. The evidence before the Court in the form of two affidavits by each of the parties shows a 13-year-old girl in enormous distress.  She has been self-harming.  She has been cutting herself.  Superficially is what it seems from the evidence but, nevertheless, when a 13-year-old cuts herself, that is a cry for help of the most immediate and urgent nature.  Since she has been with her father, she has not been to counselling, initially, I think, because she did not want to go, and now because the father says that he has taken her to her GP and her GP says she does not need to go to counselling and that she is not at risk of self-harming any more.  I am afraid that I find that a very difficult position to accept.

8. This is a child who has been involved, highly inappropriately, in the dispute between her parents.  The evidence in relation to that has come from both sides and, as I said right at the beginning of this hearing, these children deserve better.  They deserve to have their parents take responsibility for their parenting.  They deserve for their parents to decide what is going to happen with them.  That is what parenting is about.  13-year-olds do not decide where they live, nor with whom they spend time.  That is a parenting decision, and to leave it to a 13-year-old is an abrogation of parental responsibility that is very concerning to the Court.

9. When I look at the law in relation to this matter, the Family Law Act is very clear that, whenever I am making a parenting order - and an order about where a child should live is a parenting order –I must take the child’s best interests as my paramount consideration. That is set out in black and white in section 60CA of the Family Law Act 1975 (Cth) (“the Act”).

10. And then the Act goes on to set out 16 separate issues that the Court must consider when deciding what orders to make which are in the best interests of a child. The first two of those orders are set out in subsection (2) of section 60CC, and they are the benefit to a child of having a relationship with both of that child’s parents, a meaningful relationship with both of that child’s parents, and the need to protect a child from harm from abuse or neglect or being exposed to family violence.

11. There is no suggestion here that this child is at risk of abuse from these parents except in the sense that she has been exposed to adult issues which are well beyond her ability to comprehend fully in an emotional sense.  She is 13.  She does not understand the nuances of adult relationships.  She gets from the television what she thinks adult relationships are about because that is the only thing she has got apart from the role model of her parents.  And the role model being shown to this child by these parents at this stage is not entirely 100 per cent positive on either side.

12. There is no suggestion of family violence, I do not think, in these proceedings, and there is no suggestion of child abuse itself, or neglect of the child, except perhaps an inference of some neglect on the part of the father because the child has not been sent to counselling.

13. I have no doubt in my mind whatsoever that these two parents are good people who love this little girl dearly.  I do not think there is any evidence to suggest that that is otherwise.  But they do not seem to have the ability to take their parental responsibilities, and I must say that the evidence before the Court at the moment is that the father, in particular, is finding it difficult to effect those responsibilities, or to behave in a way that promotes those responsibilities for the best interests of the children.  His position is that he understands that X is very distressed and that she has been self-harming.  He understands that and he has no real objection, he says, to her spending time with her mother, but he feels as though he cannot make her do so.  He says that she simply will not go back to live with her mother, that she simply will not spend time with her mother.

14. That is an extraordinary thing for a parent to say of a 13-year-old, that he cannot control the child – and I do not mean that in a negative sense.  I mean that he is not putting safe controls around the child, and is unable to encourage the child, and make it clear to the child that the child should be spending time with the other parent, at very, very least.

15. The questions that are set out in section 60CC, subsection (3) – there are 14 of them and I am not going to go into every single one of them now but there are some that are very, very important. The first thing I need to take into consideration under section 60CC, subsection (3) is the wishes of the child. Now, the child seems to be telling people different things. She has not seen her mother for about a month and she is telling her father that she wants to live with him. She was telling her mother something different. And, in any event, a child who is in such distress that she is self-harming, the Court cannot take those wishes as having as much weight as a child who is older or of a child who is in perfect mental health.

16. I need to take into account the relationship between each of the children and each of the parents. Well, all I have at the moment is what the parents say, and while that is positive on both sides – and as I said, I have no doubt that these parents love these little girls very much, and I have no doubt that, all other disputes aside, these children love both their parents very much. They are being, and particularly X is being, torn between her parents because the parents are in dispute, and the one thing that the Act charges me to do is to protect that child from that dispute. There are always disputes between parents after relationships break down. The breakdown of a relationship involves grief. It involves pain. It involves disappointment at the loss of what might have been.

17. Children are not old enough to emotionally understand those feelings, and they need to be protected from them.  I do understand the instinct of parents wanting their children to be on their side in the anger part of all of that, because anger, too, is always a part of the breakdown of a relationship.  And I do understand each parent wanting a child to be on board with them.  But that is a reflection on the maturity of the parent.  The children need to be protected from those disputes and those feelings as much as is humanly possible.

18. I also need to take into account under section 60CC, subsection (3) the possible separation of siblings, and the proposal of the father is for the siblings to be separated, for the children to live one with one parent, one with the other, and for them to have time with the other parent such that the children would spend every weekend together. The separation of siblings is a serious matter, and especially when you have got one who is very upset, and a younger one who no doubt looks up to her big sister and must be feeling incredibly confused and distressed at the turn of events in recent months. When you have got a child who is looking up to her sister, the danger is that, in separating them, that older child becomes idealised in some way and there is also a chance that, because the older child is expressing the distress in such tangible ways, the needs of the younger child can somehow get lost, and I am determined that Y is every bit as important in these proceedings as is X.

19. I need to take into account the ability of the parents to meet the child’s needs, including that child’s emotional and intellectual needs.  There is no suggestion that the parties cannot take care of and meet the children’s material needs, but in the area of their emotional needs, the involvement of them in the proceedings and in the dispute between the parents indicates a certain lack of ability of the parents to meet their children’s emotional needs.

20. I need to take into account the attitude to the child on behalf of both parents and their attitude to their responsibilities as those children’s parents, and I think I have said enough about that to indicate that I think there is something lacking in this family in that regard.

21. The parties are agreed that they will attend upon a private family reporter as soon as is possible and that that reporter will be someone that they agree on in writing, and I will certainly make that order.

22. And so, when I take all of those things into account, what you have here is a 13-year-old girl in great distress, and she is expressing herself to be in great distress. That is despite the submission that she is happy -X saying that she simply will not go to her mother is another cry of distress that I hear - and when I take all of those things into account, I am going to make an order that, until further order – and I stress that – until further order, until we have a family report, until we have more information, I am going to make the order that X return to live with her mother at the conclusion of school on Thursday, 24 August and that the mother collect X from school on that day.

23. I am going to make an order that the father not attend the school on the afternoon of 24 August and that he make no attempt to interfere with the collection of the child by the mother.

24. I am going to make the orders that are agreed, that the parties be restrained from discussing the proceedings, the documents filed here or the reports prepared herein with the children or within the children’s presence or hearing, or permitting the children to remain in the presence of hearing of anyone else engaging in that behaviour.

25. I am going to make the order that the children both live with the mother from tomorrow after school, that they spend time with the father as set out in the proposal, that is, each Tuesday evening from the conclusion of school until 8 pm, and each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, and that will commence on Friday, 1 September, and for the first week of the school holidays, the term 3 school holidays, and at such other times as agreed between the parties in writing - so by text message or by email.

26. So the only orders I am making are the orders that, until further order, the children shall live with their mother from the conclusion of school on Thursday, 24 August with the wife to collect them from the school and the father not interfere with the mother collecting the child X.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  6 September 2017