Jordan and Rickard
[2007] FMCAfam 1043
•11 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JORDAN & RICKARD | [2007] FMCAfam 1043 |
| FAMILY LAW – Children – with whom child should live – credit – best interests of child paramount – child’s views changed – family violence – mother’s Reactive Attachment Disorder – child uninhibited and precocious – consistently late for school. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS JORDAN |
| Respondent: | MR RICKARD |
| File number: | HBM 2624 of 2001 |
| Judgment of: | Roberts FM |
| Hearing dates: | 10, 11 & 12 July 2007 |
| Date of last submission: | 12 July 2007 |
| Delivered at: | Devonport |
| Delivered on: | 11 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Rowe |
| Solicitors for the Applicant: | Cradle Coast Legal |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
| Counsel for the Independent Child’s Lawyer: | Mr D. Walker |
| Solicitors for the Independent Child’s Lawyer: | Verney Walker & Co |
ORDERS
That the Orders of 9 September 2004 of the Family Court of Australia bearing number HBF1000/2000 are discharged with effect from
20 December 2007.
That subject to Order No. 3 hereof MR RICKARD (“the Father”) and
MS JORDAN (“the Mother”) do have equal shared parental responsibility for the child A born in 1997 (“the child”).
That the Father has leave to enrol the child in a school of his choice near the Father’s residence.
That with effect from after school on Thursday 20 December 2007 the child is to live with the Father.
That the child is to spend time with the Mother as follows:
(a)During school terms each alternate weekend from after school on Friday until 5.00 p.m. on the following Sunday (or on Monday if that day is a public holiday) with such to start on the first Friday after the start of each school term.
(b)For 3 hours on the child’s birthday as agreed or failing agreement from 3.00 p.m. (or after school) until 6.00 p.m.
(c)On Mothers’ Day from 10.00 a.m. until 4.00 p.m. (if the child is not otherwise spending time with the Mother).
(d)From 10.00 a.m. on 24 December until 2.00 p.m. on 25 December in 2007 and in each alternate year thereafter.
(e)From 2.00 p.m. on 25 December until 10.00 a.m. on 26 December in 2008 and each alternate year thereafter.
(f)For half of the May/June and August/September school holidays as agreed or failing agreement for the first half of each such holiday.
(g)For half of the long summer school holidays on a two week rotational basis beginning at 9.00 a.m. on 1 January in even numbered years and at 9.00 a.m. on 7 January in odd numbered years.
(h)From 9.00 a.m. on Easter Tuesday until 5.00 p.m. on the following Sunday in even numbered years.
(i)From 9.00 a.m. on Good Friday until 5.00 p.m. on Easter Tuesday in odd numbered years.
(j)For 3 hours on 5 September each year at times to be agreed but failing agreement from 3.00 p.m. (or after school) until 6.00 p.m.
(k)By telephone up to 3 times per week between the hours of 5.00 p.m. and 6.30 p.m.
(l)At such other times as may be agreed between the parties from time to time.
That if the child is spending time with the Mother pursuant to Order No. 5 hereof on Fathers’ Day then that time is suspended between 9.00 a.m. and 5.00 p.m. on that day.
That for the purposes of Order No. 5 hereof the Mother is to collect the child from the Father’s residence or from the child’s school (as the case may be) at the start of each period of spending time with the Mother and the Father is to collect the child from the Mother’s residence at the end of each such period.
IT IS NOTED that publication of this judgment under the pseudonym Jordan & Rickard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
HBM 2624 of 2001
| MS JORDAN |
Applicant
And
| MR RICKARD |
Respondent
REASONS FOR JUDGMENT
The Court must decide whether A born in 1997 (“the child”) should live predominantly with MS JORDAN (“the Mother”) or with
MR RICKARD (“the Father”).
Background
The parties started their relationship in high school and the child was born when the Mother was 14 years old and the Father was aged 16 years. Their relationship ended when the child was 2 years old. Since then the child has lived predominantly with the Mother and has spent time with the Father on a regular basis.
There is no doubt that the Mother had a terrible childhood. She spent many of her early years in foster care and it appears that she was subjected to both sexual and physical abuse.
The Mother concedes that she was in a lesbian relationship for some time. Her lesbian partner at that time (“R”) was a witness in the proceedings. Their evidence was that the lesbian relationship was not continuing although they are still friends. I will comment further upon that below.
The Mother has another child (“G”) who is now one year old. The Father is not the father of that child.
The Father commenced a new relationship in 2000 and got married in January 2007. His wife (“K”) has an eight year old child (“L”). The Father is not the father of that child.
At the time of the hearing, K was pregnant and very close to having the Father’s child.
In September 2004, the parties consented to orders that the child live with the Mother and the Father have contact with her as follows:
(a)Each second weekend from Friday afternoon until Sunday afternoon.
(b)Each other Thursday from 3.00 p.m. until 6.00 p.m.
(c)On various specified special occasions.
(d)For half of the school holidays.
(e)For up to 3 times per week by telephone.
The Father has been generally spending time with and communicating with the child on a regular basis since those Orders were made, apart from times when the Mother stopped his contact unilaterally. The Father filed a Contravention application on 31 October 2005. On
13 December 2005I found that the Mother had contravened the Orders without reasonable excuse and ordered compensatory contact.
On 6 June 2006 the Father filed a further Contravention application and on 13 July 2006 the Mother filed an application which led to the contested hearing upon which I am now adjudicating.
On 14 July 2006 I made orders for the appointment of an Independent Child’s Lawyer (“ICL”).
On 4 August 2006 I made an Order by consent pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 appointing a psychologist (“Mr Marriott”) to make an assessment and provide a report to the Court. Mr Marriott’s report dated 12 October 2006 was released to the parties and the ICL on 17 October 2006.
The matter was set down for hearing in the Devonport sittings in March 2007 but was not reached. It came on for hearing in the Devonport sittings in July 2007.
The parties’ proposals
The Mother seeks Orders that the child live with her and spend time with the Father as follows:
a)each alternate weekend during school terms from Friday afternoon until Sunday afternoon and for three hours on alternate Wednesdays;
b)for the first half of the Easter, Term1 and Term 2 school holidays;
c)for half of the summer school holiday on a two week rotational basis; and
d)on various special occasions.
The Father’s proposal is effectively a mirror image of the Mother’s, except that the Mother should spend three hours with the child on alternate Thursdays rather than Wednesdays. Nothing really turns upon that.
The evidence
The Mother relied upon an affidavit filed on 9 March 2007 (which did not really address the matters referred to in Section 60CC of the Family Law Act 1975). That affidavit also annexed copies of earlier affidavits. She also relied upon an affidavit sworn by R and filed on the same date. Both were cross-examined.
The Father relied upon affidavits on himself and his wife filed
27 February 2007. They were both cross-examined.
The ICL relied upon the report by Mr Marriott. He also gave oral evidence.
Submitted as exhibits by consent were notes of the ICL’s interview with the child and her school principal and teacher on 10 August 2006, and notes of the ICL’s attendance at the child’s school on 8 December 2006.
The child’s school attendance records were also admitted by consent.
Credit
In many parenting matters, credit is not a particularly important issue, because the parties are generally truthful even if they have different perspectives about, or interpretations of the facts. However, in this matter credit was a significant issue.
In his closing submissions, counsel for the Father said that “credit issues go to the heart of this case”. Further, he said that I could not really believe anything that the Mother or her witness, R, had said.
Having heard the evidence of the Mother and R, I find that neither was a very truthful witness. For example, the Mother stated that since she and R had “separated” on 31 March 2007, R had attended at her house on approximately twelve occasions (which equated to roughly once per week), whereas R stated that she had been attending at the Mother’s house three or four times per week and had even stayed overnight on occasions. In relation to that, I accept that R’s version is probably more accurate.
However, R’s versions of various incidents involving the police were quite literally incredible.
In relation to an incident on 31 March 2007, R would have me believe that the police fabricated statements that they reported she had made to them. While it is easy to accept that police officers can make minor errors when reporting exact details of a conversation, I find it incredible that R would totally deny that the particular conversation took place.
It was very clear to me that the Mother and R both tailored their evidence to what they thought would suit the Mother’s case.
Mr Marriott says that the Father had completed a psychological testing questionnaire in which he clearly tailored his responses to portray himself in a favourable light. For example, Mr Marriott said that “he denied most of the common short comings that most individuals will acknowledge”. However, I do not find it unusual in relation to as issue of such importance that the Father attempted to portray himself in a better light.
Having heard his evidence, and that of his wife, I am satisfied that they both gave their evidence honestly.
Legal principles to be applied
It is clear from authorities such as Goode & Goode[1] that the legislative pathway set out in the Family Law Act1975 (“the Act”) must be followed.
[1] (2006) FLC 93-286
Proceedings for parenting orders are governed by the provisions of Part VII of the Act. The court must consider the best interests of the child as the paramount consideration[2].
[2] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· 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
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [3]
[3] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children[4].
[4] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[5].
[5] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[6].
[6] Subsection 60CC(3)
There has been some academic debate about the relative weight to be given to “primary considerations” and “additional considerations”. I feel sure that the debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[7]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[8]
[7] Section 61DA
[8] Subsection 61DA(4)
However, if that presumption does apply, it does not necessarily follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
· consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
· if it is, consider making an order to provide for the child to spend equal time with each of the parents.[9]
[9] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[10]
[10] See subsections 65DAA(2) and (3)
Discussion
As mentioned above, I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that there has been child abuse or family violence.
There is no doubt that the child has been present when incidents of violence have occurred between the Mother and R. I shall refer to them below. Consequently, the presumption referred to in the paragraph above is rebutted. Notwithstanding this, the parties are each of the view that there still should be an order for equal shared parental responsibility.
In my opinion the Father is to be congratulated that, notwithstanding the violence that has occurred in and around the Mother’s home when the child has been present, he is still prepared to share parental responsibility equally with the Mother. I am therefore prepared to make such an Order.
However, the law requires me to consider whether spending equal time with each of the parents would be in the best interests of the child and whether it is reasonably practicable. If that is not considered appropriate, I must consider whether it is in the child’s best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.
In relation to all of this, I must keep the provisions of Section 60CC ever in my thoughts, so I turn now to consider that section.
Primary considerations
The Benefit of having meaningful relationships with both parents
It is clear to me that the child currently has a meaningful relationship with both of her parents. It is equally clear that her relationships with them should continue.
Protecting the child from harm from abuse neglect or family violence
The evidence is quite clear that the child is much more likely to experience or witness violent behaviour in the household of the Mother than in the Father’s household. This is because I am quite certain that the Mother’s relationship with R will continue and R appears to have a propensity for becoming involved in confronting situations which result in violent behaviour on her part.
The subpoenaed police documents in relation to R show that she has a number of convictions for assault and in December last year it was alleged that she had assaulted G’s father without provocation. R denied that event totally but I accept that the police report is more accurate than R’s evidence.
I note that the police have felt it necessary to obtain a Police Family Violence Order to protect the Mother from R on at least one occasion.
Other subpoenaed police documentation reveals that during the night of 31 March 2007 there was an altercation between the Mother and R, during which the Mother pushed R out of the house and slammed the door behind her. R then broke a window, and the Mother accepts her claim that it was an “accident”, but I am more sceptical.
It is claimed by the Mother that she and R separated as a result of that incident.
Relevant additional considerations
The child’s views
In his written report Mr Marriott said:
A has said clearly that she wishes to reside with her father but her mother is opposed to this and making it hard for her. She was leaning in that direction five years ago and seemingly has not wavered.
However, Mr Marriott saw the child again in March and July this year. On those occasions, she had changed her mind and wished to live with her Mother.
When he was asked by the ICL how much notice we should take of what the child says about where she wants to live, Mr Marriott’s response was “Very little”. He had earlier said:
I thought that her views were very changeable, that they were unreliable and that it was possible she had some persuasion even to change her views
He went on to say:
She had complained quite loudly that she felt as though mum was totally preoccupied and not interested in her and so forth at the initial assessment and then suddenly once my report had been written, there was a complete change in the amount and quality of the contact she was having with her mother.
I accept that very little weight should be attached to the child’s views in this matter.
The relationships of the child with the parents and other people
It’s clear that the child’s relationship with the Mother has improved of late. However, it is equally clear that for a time the Mother was not really devoting sufficient time and attention to the child. That was exacerbated by the birth of G but it does seem that the Mother has taken on board some of the matters raised by Mr Marriott in his report and that has resulted in an improvement in the relationship between the Mother and the child.
I accept that R has been a part of the child’s life for a very long time. Indeed, the evidence is clear that she has a role akin to a step parent. Agreement was reached that the child should refer to her as “Girlie-dad”.
Mr Marriott commented that the child was observed to have a warm, fun loving and interactive relationship with the Father and with his wife. I therefore accept that the child’s relationship with the Father is a normal, loving and healthy relationship.
Mr Marriott also commented that the child claimed to enjoy L’s company. This confirms the evidence of the Father and his wife that the child gets on very well with L. While K conceded that there was some “sibling rivalry” between them from time to time, that is only to be expected.
It also seems clear that at the time of the hearing the child was developing a normal relationship with her younger sister G. Although K’s second child had not been born at the time of the hearing, I accept K’s evidence that A was looking forward excitedly to the impending birth.
The willingness and ability of the parents to facilitate and encourage the child’s relationship with the other parent
I have no concerns about the Father’s willingness and ability to encourage the child’s relationship with the Mother. However, I must have some concerns about the Mother’s willingness.
It is clear that the Mother has twice unilaterally suspended the child’s time with the Father and she has been found to have contravened the earlier Orders of this Court without a reasonable excuse.
It is pleasing that the “excuse” that the Mother claimed in relation to that earlier Contravention hearing was not maintained by her during the hearing of this matter. In this regard, it is quite clear that her earlier suggestion of inappropriate touching of the child by K was unfounded and K was merely attempting to assist the child in her toilet habits. I need say no more about that.
However, having expressed my concerns that the Mother might be less willing than the Father to promote the other parent’s relationship with the child, I feel sure that she is sensible enough to comply with whatever Orders are made.
The likely effect of any change in the child’s circumstances
In relation to this aspect, Mr Marriott said the following:
If A was separated from her father and his family I believe she would be very troubled and upset. However, she is likely to adapt to any changes over time. Similarly if she did not see her mother at all she would miss her and ask questions about her.
He also said that the child appeared to be particularly fond of L and wanted to see him regularly.
The parents’ capacities to provide for the child’s needs
There is no evidence to suggest that either party is not capable of providing for the child’s physical needs.
However, paragraph (f) of sub-section 60CC(3) specifically refers to the child’s emotional and intellectual needs, and it is in relation to those that I have some concerns. Those concerns relate to the Mother and R, but not to the Father or his wife.
Mr Marriott reported that the Mother openly acknowledged her physiological and emotional difficulties. He stated:
She grew up in foster care and believes she was persistently, sexually and physically abused throughout her life by a range of people. She has trouble forming close relationships, gets depressed and has been told by her psychologist that she suffers from PTSD. It was unclear whether she was continuing in a same-sex relationship but has been ambivalent about her sexual orientation and has a new-born baby to a man she resents and fears…….her current female friend/partner has previously been the subject of a Family Violence Order.
Mr Marriott agreed with the Mother’s psychologist/counsellor that she suffers from Reactive Attachment Disorder. He pointed out that this is defined in DSM-IV as:
Markedly disturbed and developmentally inappropriate social relatedness in most contexts, beginning before age 5 years, as evidenced by either……excessively inhibited, hyper vigilant or highly ambivalent and contradictory responses……or diffuse attachments as manifest by indiscriminate social ability with marked inability to exhibit appropriate selective attachments …
Mr Marriott also reported that there were signs that the child had suffered similarly. He said that both the Mother and the child have experienced repeated changes of primary care-giver which have most likely prevented the formation of stable attachments. He said that the child was reported to be:
…indiscriminate in the way she has broadcast her emotional concerns at school and enjoyed attention from strangers including the Mother’s boyfriends.
In his oral evidence Mr Marriott reported that the child was still just as familiar and uninhibited in March 2007 as she was at the initial assessment. Further, it was quite clear that when he saw her in July 2007, he had significant concerns about the child’s precocious behaviour. He also commented that such precocious behaviour is typical of a child that presents with an attachment disorder.
Mr Marriott commented that the child has a lack of caution in meeting new people and that she had failed to learn the appropriate social behaviour of caution and modesty. Luckily, he did not believe that the situation was too late and that she could still be taught appropriate caution and modesty in the same way that an untidy person can be taught to be tidy.
Unfortunately, I am of the view that it is unlikely that she will taught in the Mother’s household to modify her behaviour patterns.
During cross-examination by the Mother’s counsel, Mr Marriott stated that he did not believe that the child has Reactive Attachment Disorder but she displays some of the symptoms such as the tendency to show indiscriminate affection and a lack of enduring childhood friendships.
It is clear from the child’s school records that she has been consistently late for school and Mr Marriott commented in his report that the Mother had exhibited a pattern of lateness in her own life (and was even late attending her appointment with him). He said that the child told him that the Mother goes back to bed after breakfast and he thought it was reasonable to attribute the child’s pattern of lateness to school to the Mother’s general tardiness.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
It seems to me that the difficulties and expense of spending time with the other parent will be the same no matter which parent the child lives with.
The Father and his wife expressed a desire to move to Devonport from [X] and that will certainly increase the travelling time between the two households. However, I find that the Father’s reasons for wanting to move are valid reasons. He has family and friends in Devonport and he believes that his job prospects will be enhanced.
No matter with whom the child lives, a move to Devonport by the Father and his family will create a difficulty in relation to spending time with the other parent between each alternate weekend during school terms. Both parties are seeking such an Order but it seems to me that the implementation of such an Order would be extremely difficult from a logistical point of view. I am therefore of the view that spending those three hours with the other parent on a regular fortnightly basis is not appropriate.
The attitudes of the parents to the child and parental responsibilities
In my view, these matters have already been touched upon to above. The Mother has shown a lack of parental responsibility in relation to the child’s schooling. Not only has the child been consistently late going to school, the Mother did not consult with the Father when she decided to change the child’s school. The Father was clearly upset about that, especially because it resulted in the child being taken away from the school that L attends. However, the father appears to accept that the child has been relatively well settled at that second school.
I have already indicated that I will be making an Order for equal shared parental responsibility and that carries with it an obligation on both parents to consult in relation to issues affecting the child’s welfare.
Any family violence involving the child or family member
I have referred to this above and do not need to say more.
Any other relevant fact or circumstance
The Mother has reported that the child has been observed masturbating herself, and even on one occasion masturbating R’s dog. The Father reports no such observations. In his report Mr Marriott said the following:
…my obvious conclusion here that A is modelling what she has observed at her mother’s house. Children as young as A who displays sexualised behaviour generally have an adult or adolescent influence and the mother’s home features a great deal more sexual disturbance than the father’s.
The Mother’s counsel asked him why that was an obvious conclusion and he responded:
Because children tend not to spontaneously exhibit that sort of behaviour, prepubital children. It’s almost invariably modelling something they have observed …
It was put to him that such behaviour could have been observed elsewhere and Mr Marriott conceded that was possible. He said that it was almost certain that A had either seen or experienced something somewhere.
Like Mr Marriott, I conclude that it is far more likely that the child has experienced or observed something in the Mother’s home than elsewhere. In my view, it is also of some significance that her masturbatory behaviour is only observed in the Mother’s home.
Although the Mother and R claimed not to have been in a sexual relationship since 2001, I do not believe that and I conclude that the Mother has from time to time resumed her sexual relationship with R. That conclusion is supported by the child’s own statements that the Mother and R shared a bed at times when they were both claiming that a sexual relationship had ceased.
I also conclude that the altercation that took place on the night of
31 March 2007 arose out of sexual jealousy between the Mother and R.
It is clear that the Father and his wife live in a more settled sexual situation than the Mother and her various partners from time to time.
Conclusions
When I consider all of the above, it is very clear that spending equal time with each of the parents is simply not an option that I can consider. In addition, it would be thoroughly impracticable, given that the Father is likely to be living some distance from the Mother in Devonport.
It is equally clear that continuing to live predominantly with the Mother is not an appropriate option. Consequently, the child should live predominantly in her Father’s household.
There will be orders to provide for the child to live with the Father and spend time with the Mother as follows:
a)each second weekend during school terms from after school on Friday until 5.00 p.m. on Sunday (or Monday if it is a public holiday) - the Mother should not be responsible for returning the child to school after those weekends because she has shown a clear lack of responsibility in relation to that;
b)for half of the School holidays - with the long summer holiday to be on a two weekly rotational basis because that is what both parents are seeking; and
c)on various special occasions.
There will be an order for equal shared parental responsibility but the Father will be able to re-enrol the child at a school of his choice near where he is living. In any event, it is my understanding that the Education Department has a policy that children should in most circumstances be enrolled at a school close to where the child lives.
The orders will come into effect at the end of this school year when the child will start spending her forthcoming long summer holiday with each of the parents on a rotational basis. That will assist her to feel comfortable remaining in her Father’s household at the end of those school holidays.
The full details of the orders appear at the start of these reasons and are considered by me to be in the best interest of A.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
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