JMG & JRJ
[2005] FMCAfam 535
•24 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JMG & JRJ | [2005] FMCAfam 535 |
| FAMILY LAW – Children – contact – application to vary orders that were made by consent in the Family Court of Australia – wishes of child aged 15 considered regarding contact arrangements with father. |
| Family Law Act 1975 (Cth), s.68F |
| H v W (1995) 18 Fam LR 788; FLC 92-598 R v R: Children’s Wishes (2000) 25 Fam LR 712; FLC 93-000 R & R (Children’s wishes) (2002) 29 Fam LR 230; FLC 93-108 |
| Applicant: | MGJ |
| Respondent: | RJJ |
| File Number: | NCM 3356 of 2001 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 August 2005 |
| Date of Last Submission: | 24 August 2005 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 24 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Marr Peter Marr & Associates |
| Solicitors for the Respondent: | Mr Adrian Holmes Lawyer |
ORDERS
That the orders made by consent in the Family Court of Australia at Sydney on 28 May 2003 be varied by deleting all reference to ATJ born 16 December 1986.
That Order 1(3)(d) made by consent on 28 May 2003 be varied in so far as it refers to the child AJJ born 28 March 1990 by providing that the said child is to have contact with the father every third weekend of each school term from after school on Thursday to the commencement of school on Monday.
That if the said child resists going on contact as provided by these orders the mother must inform the father of that fact and request him to pick up the child for contact or negotiate the contact arrangement directly with the child. Provided that the mother complies with this order then her compliance will be deemed to be a reasonable attempt to apply with the contact orders.
That these orders in relation to the child A will remain in force until the child attains his seventeenth birthday after which time the child will have reasonable contact with the father at such times as the child and the father shall arrange.
The father is to have telephone contact with the child A at all reasonable times during the school term.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
NCM 3356 of 2001
| MGJ |
Applicant
And
| RJJ |
Respondent
REASONS FOR JUDGMENT
This is an application to vary orders that were made by consent on
28th May 2003 in the Family Court of Australia. The very terms of the orders sought in the original application which was filed on
1st June 2004 are that the orders in toto should be discharged and replaced with other orders.
Over the passage of time that application has become less relevant and a separate, more limited change to the orders is sought to be made relating only to in effect one child AJJ, who was born on 28th March 1990.
The change in the circumstances since the original application was made has a connection with a contravention application for breach of these orders in so far as A is concerned. It is also relevant that the oldest child of the marriage A, who was born on 16th December 1986, has now attained the age of 18 years and as a consequence parenting orders that were previously made no longer apply to him, they have been, if you like, been discharged by effluxion of time. In any event, for more abundant caution I will vary the orders by deleting all reference to the child A.
What the mother now seeks is a variation with the orders in respect of the middle boy only, A. He is 15 years of age and there have been contravention proceedings that have arisen out of contact not taking place. The mother has said that the contact has not taken place because the child has been reluctant to go on contact with his father at times and that he has reached the age and the size that it is beyond her powers to persuade or compel him to do so.
The mother has in fact been dealt with for a contravention of the orders and I am informed from January of this year the child has been going on contact, although there has been a variation to those arrangements relating to the father agreeing to pick the child up on a Friday to take him to soccer, which he plays on a Friday evening.
The circumstances there are that the father is quite prepared to take the child to soccer, sometimes he plays on a Saturday as well and the father is more than happy to cooperate in this way and presumably enjoy the game and watching his son play the sport that he enjoys.
What the mother says, however, is that the contact orders are no longer appropriate as far as A is concerned. Whilst she says that they may have been appropriate when those orders were made in May 2003 that as A has matured, has built up relationship with his peers, not only at high school but also with his soccer friends, that he wants to spend time interacting with his friends, he has some school arrangements, assignments, et cetera, that he wishes to do and has expressed a reluctance to spend every alternate weekend on contact with the father. There are on the evidence before me no such problems with the youngest boy, D.
The mother does not wish to engage in a continual conflict with her son any more than she wishes to be brought before the Court on a further contravention application. For his part the father says that the arrangements for contact are still in the children's interests, that A is only 15 years of age and it is not appropriate for a child of that young age to be dictating when or when not contact is to take place.
There has been a family report prepared in which the mother and the father and the child were all interviewed. I have had the opportunity of hearing the mother's evidence and I have had the opportunity of hearing the Court counsellor or rather mediation J S cross-examined.
In the mother's evidence when she was cross-examined by Mr Holmes the mother said that A was a good boy, he was relatively compliant and obedient, although clearly not in this area. He has friends at S G H and S G G S C. The father picks him up from home and takes him to the soccer. Sometimes the boy plays soccer on a Saturday. The mother and the children moved from S where they had been living on 16th July this year - S was about 15 minutes’ drive from G.
What the mother is proposing is an order that would suit the child.
She thinks that he is old enough to negotiate with his father. She told the Court that she would like the Court to vary the orders to reflect A’s wishes. She said:
It's not about what I want, it's what A needs.
She refers to an arrangement that has been described in the family report by saying
I think A has come up with a compromise that will please his father and will please me.
She thinks that he worked it out for himself.
The mother did say that since January A had gone along with the contact orders as they were originally set out until April when there was some variation because of the soccer season.
J S, the mediator, prepared a report and in the course of that report she interviewed each parent, the child A and then the two parents together. Despite the fact that there is some evidence of previous disharmony between the parents Ms S said in cross-examination that the parents behaved well at the interview, she did not observe hostility or unpleasantness between them when they were together and she did in fact speak highly of their behaviour, even though she concluded at page 5 of the report that there was an acrimonious relationship between the parties.
She said at paragraph 31 that it was apparent that A was still prepared to have his father as part of his life and had offered what seems, well to the counsellor at least, a sensible compromise to enable everyone to get some of what they want. He will get to spend more weekend time with his peers and as well he will get to see his father on his own sometimes and this may enable them, meaning the boy and his father, to develop a better understanding with each other.
She went on to say that he has not specified how much of the holidays he wishes to spend with his father, just that he wants less time there. The counsellor went on to say that the mother is asking for help in ensuring that A complies with any orders for contact. She would be unable physically to ensure that he attends as he is a tall and strong young man
She described the mother as feeling threatened by the father, telling her that he would take her to Court again for contravention of the orders, presumably if there was a contravention. She believed again at page 5 of the report that
The age of 16 would be a good time for A to be able to negotiate visits with his father.
It was significant that the child did not wish to be present when the mother and the father were interviewed together at the end of the day. The counsellor described that in the report as showing fear of his father at that stage, but agreed in cross-examination that it was also likely that he did not wish to offend either parent in such a circumstance.
The father had told the counsellor that the oldest son had complied with the contact orders until he was 17 and obtained a driver's licence and bought a car. The father was not keen on the concept of negotiating with A and the father whilst not happy about the proposals was described as, however, listening to the proposals put forward and saying that he would consider them.
The counsellor recommended that the mother should continue to encourage A to attend contact according to the orders given by the Court, but if she had difficulties it was recommended that the orders reflect her right to ring or text the father and ask him to pick A up. She also recommends that the orders make it clear that she is then not contravening the orders under these circumstances.
The recommendation also was that the Court consider favourably A's option to have contact with his father every three weeks and to spend less than half of the school holidays with the father.
The counsellor recommended seven days and 14 days during the long holidays.
The counsellor also recommended, sensibly in my view, that the solicitors for the parties should make a calendar of the contact so that there could be no misunderstanding and she also recommended at the beginning of school in 2007, when the child is nearly 17 and would be in year 11, that he and his father negotiate contact from that time.
Now, quite clearly the father does not agree with those recommendations, takes the view that the child is too young to be dictating perhaps the situation. The father's solicitor Mr Holmes said that it was up to the mother to demonstrate that this change would be in the child's interest and there was no evidence that he had been compelled to attend contact, there was no evidence that the child's interaction with his peers had been harmed by the contact. Pointed out that the father readily took the child to soccer and there was no reason to believe that if he obtained a part-time job at the Pizza Hut that the father would not take him to work.
The mother described reactive behaviours by the child, but there was no evidence in support of that and in short submitted that if there was not a problem that the Court should not change the arrangements and opposed giving the child a right of veto.
For the mother Mr Marr said that his client had no objection to telephone contact during the school term and would in fact encourage it. Mr Marr pointed out that the child was 15 years of age; he was in fact a 15 year old boy who was expressing very clear wishes and that the Court should give some consideration to those wishes. The wishes are not adverse to the father as such, but the child has to be allowed to exercise his own personality and independence.
Mr Marr described a balancing act that needed to be undertaken in allowing young adults or about to be adults room to grow while still keeping some control of them. He described his client as a witness of clarity who was in fact focused on the child's welfare and that she in fact endorsed the compromise proposal that had come from the child A.
He made it clear that the mother did not want to have to face further contravention proceedings and would certainly encourage other contact between A and his father, but was concerned that she not be placed in a position where she was facing contravention proceedings in respect of an order that she could not always comply with.
In considering whether or not the orders made by consent in 2003 should be varied the Court must consider whether or not there has been a change in the circumstances relating to A that would justify such a change. Would a continuation of the orders in their present form continue to be in the child's best interests or should the orders be varied so as to meet the best interests of the child? Unless it can be shown that the child's interests would be served by varying the orders then it is clear that it is inappropriate to vary them.
For the mother Mr Marr has submitted a minute of proposed orders which sets out that the child's contact should be as follows. First, from 6 pm Christmas Eve until - it says 5 pm December 2005, I am not quite sure which date in particular, whether it is Christmas Day or Boxing Day or New Years Eve - but the intention is clearly for there to be alternating Christmas in odd-numbered years with the father.
Further, that there should be contact between the father and the child for two weeks of the Christmas school holidays as agreed and arranged between the child and his father, that there should be contact for seven days during other school holiday periods and that during school term each third weekend the father and the child would have contact from the Thursday after school until the Monday when school commences.
Further, he suggests in line with a recommendation in the family report that if the child resists the contact as provided for by these orders the mother should ring or text the father advising him of the difficulties and ask him to pick the child up for contact or negotiate contact arrangements directly with the child. Conditional upon the mother contacting the father as provided for in these orders this contact shall be a defence to any application for contravention relating to the child A.
The final order that is proposed is that these orders in relation to the child A remain in effect until the end of the July school holiday period 2006 and that thereafter the father of the child A negotiate directly a proposed contact time.
Those then are the orders. Are these orders in the best interests of the child? I am mindful of the criteria set out in subsection 68F (2) of the Family Law Act 1975. This is a case where the wishes of the child have been clearly expressed. The child is old enough for his wishes to be considered and the method of obtaining these wishes through a family report is an appropriate method as set out in the Family Law Act.
The importance of considering children's wishes has been set out in a number of cases over the last 10 years, including Harrison & Woollard, which is also reported as H & W, (1995) 18 Fam LR 788; FLC 92-598, and R v R: children's wishes (2000) 25 Fam LR 712; FLC 93-000, and R & R (Children's wishes) (2002) 29 Fam LR 230; FLC 93-108. It is clear that there is an obligation on the trial Judge not only to consider children's wishes, but to show that the wishes have been considered.
This does not mean for a moment that the Court should allow a child to determine the outcome of proceedings. It may be that a Court considers the wishes of children, but decides, taking all the evidence into account, that following those wishes directly would not be in the children's best interests. But what must be done is that these wishes must be considered and properly considered.
The Court must also look at the relationship between the parents and the child concerned. There appears to be evidence of a strong and loving relationship between the mother and the child, although it is clear that this child is a 15 year old who is growing and exercising the wishes that many teenagers express to be more independent and is doing so in at times a forceful way, even though the mother describes him as generally a good boy and a compliant boy.
It is not a situation that the father and the child have a bad relationship. The child says at times that he is afraid of his father, but that does not stop him from wanting to have contact time with the father and indeed contact time with the father alone when his brothers are not around, particularly his younger brother. The child obviously believes that in a one-to-one situation he and his father can speak and discuss things and build up a strong relationship.
The mother appears by the evidence to show a child focus, but is also expressing misgivings about her ability to compel the child to do something that at times he says he just does not want to do. The father has been described as more rigid and expressing a view that this child is too young to be making all the decisions and that he should at his age comply with what is prescribed until he is older. And the father pointed out that the elder boy did not go his own way as far as contact arrangements were concerned until he was 17, not 15.
There should be an end to litigation, whether it is an end to varying contact orders or whether it is attempting to make sure that contravention proceedings that are unnecessary do not take place.
That does not mean, of course, that the Court should prevent contravention proceedings by coming out with a set of toothless orders that cannot be enforced because it is quite clear that this Court will enforce orders and there is no point in making parenting orders if they are not going to be enforced.
In my view there is some scope for considering the fact that this child has grown, is feeling his independence and, as a growing teenager, is acquiring a variety of other activities. His suggestion that he sees his father each third weekend to my mind has some merit. It would mean that he and his father spend one-on-one time, which would clearly be of benefit to both.
It gives A the opportunity of just summing up what sort of a person his father is speaking to him directly and finding out his father's good points, finding out his father's wishes and dreams and hopes, benefiting by his father's experience. Sometimes when one has a younger brother the stage can be monopolised by the older brother, but one-on-one time between father and son could well be beneficial to both and enable them both to build up a strong relationship.
For the father Mr Holmes has submitted that the need for regular telephone contact is very important and the mother, to her credit, has indicated support for that. I am certainly of the view that that is important and I intend to make such an order.
I am not at this stage disposed to vary the orders as far as school holiday contact is concerned. I am not satisfied that sufficient evidence has been provided to show that such a variation would be in this boy's best interest. His own rather vague comment of "less" is very little guidance. In my view it would be more appropriate to reassess matters like that once there is a change in weekend contact. The child may well find that this arrangement suits him so well that school holiday contact would be seen to be something that should continue in its present form.
So I am not disposed to order that or whether there should be a change to school holiday contact as I am not satisfied it has been shown to be in the best interests of the child. I am of the view, however, that some recognition needs to be made of the fact that a child who is now six foot tall would dig his heels in and with the intractability for which teenagers are renowned could, for some reason, resist going on contact with the father and that try as she might the mother may not be able to force him to do it and certainly it would be quite inappropriate for her to attempt to do so physically, even if it were possible.
This is a case where the mother does need to contact the father so that he can be aware of the situation and come and collect the child himself or speak to the child on the phone and once contact arrangements are varied so that the father and child have more one-on-one time together this may well be a very suitable way of resolving the problem that the mother has found so difficult.
The other issue that I have considered is whether the orders as modified should only remain in force for a limited period of time.
The father suggests the age of 17 is appropriate, Mr Marr for the mother suggests the end of the July school holidays 2006, which is only a year away.
I am more inclined to take the conservative view at this stage. It is not appropriate for the children to be calling the shots completely.
Once this boy is 17 years of age like his brother he would be in a position to exercise very clear views and I have no doubt that the father would give those serious consideration.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. K. Polley
Date: 5 October 2005
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