KD and PH (No.2)
[2003] FMCAfam 483
•20 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRAHA
| KD & PH (No.2) | [2003] FMCAfam 483 |
| FAMILY LAW – Residence – wishes – status quo – assessment of risk allegations – separation of siblings – children’s best interests paramount consideration. |
Family Law Act 1975, ss.60, 65, 68
Commonwealth Evidence Act 1994 (Cth)
Melbourne Ports Authority v Anshun (1981) 147 CLR 589
B and B: Family Law Reform Act (1997) FLC 92-755
R and R: Children's Wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598
M and M (1988) 166
A and A (1998) FLC 92-800
| Applicant: | KD |
| Respondent: | PH |
| File No: | NCM2581 of 2000 |
| Delivered on: | 20 November 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 29 & 30 September 2003 1 & 2 October 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Counsel for the Children’s Representative: | Mr G. Clarke |
| Children’s Representative | Karen Haga & Associates |
ORDERS
That all prior parenting orders are discharged.
That the parties have joint responsibility for the long term care, welfare and development of “the children” SH born on 25 October 1991 and AH born 4 July 1997.
That each party is responsible for the day to day care, welfare and development of the said children when the children are residing with that party.
Until 10 am on 20 December 2003 the children shall live with the father.
Until 20 December 2003 the mother shall have contact with the children each alternate weekend from 10 am Saturday to 5 pm Sunday commencing on the weekend upon which she was next due have alternate weekend contact and by telephone each Monday, Wednesday and Friday between 4.30 pm and 7.30 pm.
Until 20 December 2003 contact changeover shall take place at W Railway Station car park.
That the father shall deliver the children to the mother at W Railway Station car park on 20 December 2003 at 10 am.
That from 10 am on 20 December 2003 the children shall live with the father as follows:
(a)Commencing on 6 February 2004 each alternate weekend from
6 pm Friday to 5 pm Sunday or 5 pm Monday if it is a long weekend, except that if the children or either of them are participating in a Little Athletics meeting, the contact shall commence at 10 am on the Saturday.(b)From 4 pm to 7 pm each Wednesday afternoon, or if the children or either of them are involved in an extra-curricular activity on a Wednesday another weekday as nominated by the mother when the children have no extra curricular activities;
(c)On the weekend that includes Father’s Day;
(d)For one half of each school holiday period being the second half in 2003 and alternate years thereafter and the first half of the holiday period in other years;
(e)At other times as may be agreed between the parties.
That the children shall live with the mother at all other times.
That the father shall collect the children from W Railway Station car park at the commencement of each residence period and the mother shall collect the children from W Railway Station car park at the conclusion of each of the father’s residence periods, except for periods of residence in accordance with order 5(b) herein.
That for the purpose of the residence periods provided for in order 5(b) herein, the father shall collect the children from the mother’s residence at the commencement of the period and shall return them to the mother’s residence at the conclusion of the period.
Alternate weekend and midweek contact is suspended during school holidays.
That the operation of orders 5(a) and 5(b) is suspended during school holiday periods.
That each party shall be entitled to exercise telephone contact with the children when the children are residing with the other party, each alternate day between 4.30 pm and 7.30 pm, and at other times of the children request to exercise telephone contact with the other party.
After the school holiday’s, the father’s residence shall resume on the first weekend after school has resumed if the father has had the care of the children during the first half of the holidays AND on the second weekend if he has had their care during the second half of the holidays.
That the mother shall not change the child’s place of residence from the Newcastle – Central Coast area without giving the father 28 days advance written notice.
That each party shall advise the other and keep them advised of:
(a)Their residential address and phone number;
(b)Any specialist medical appointments which the children are required to attend;
(c)Any emergency medical treatment which the children require;
(d)Any school or extra-curricular activities in which the children are involved and in which parents are able to participate or attend.
Unless these orders provide to the contrary, school holiday contact:
(a)SHALL commence at 10.00am.
(b)SHALL conclude at 3.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
That the mother continue to obtain dental and orthodontic treatment for the children at the Sydney Dental Hospital or at a facility chosen in consultation with the Sydney Dental Hospital.
That each of the parties be entitled to obtain directly from any school attended by either of the children or from any health or welfare professional or other professional attended by any of the said children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That pursuant to s.62(F)(2) the parties attend a post order counselling to facilitate improved communication between them. The parenting program will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court four months after the dates of these orders.
Until further order the applicant and the respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children SH born on 25 October 1991 and AH born 4 July 1997 from the Commonwealth of Australia. It is requested that the Marshal of the Federal Magistrates Court and all agents of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
That each party is restrained from:
(a)Allowing the children access to any documents filed or tendered in these or any earlier court proceedings;
(b)Denigrating the other party to or in the presence of the children;
(c)Discussing any issues raised in these proceedings with or in the presence of the children, unless the issue is specifically raised by the child.
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.
All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRAHA AT PARRAMATTA |
NCM2581 of 2000
| KD |
Applicant
And
| PH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application concerning residence of two children, SH who is 12 and AH who is 6 years old. Since their parents’ separation in mid-1999 SH and AH have lived with their father and have had contact with their mother. The mother asks that the children live with her. She says that during earlier proceedings, SH told the court counsellor that she wanted to live with the mother. Nonetheless the mother gave up her residence application and the parties agreed that the children would continue living with their father. Three years on SH, it is claimed, has an even stronger desire to live with her mother and AH now also wishes to do so. The mother claims that SH is an intelligent and mature child whose wishes should be given effect to. Although not articulated as strongly as SH’s, AH’s desire to live with her mother should be respected. It is the mother’s case that even if AH’s wishes were uncertain, the strength of the children’s attachment to each other is profound and the sisters should live together.
The children’s father strongly opposes the mother’s application. It is his case that the children are settled and happy. Academically and socially the children are high achievers and hence changing their circumstances is inconsistent with a four year post separation status quo that he says has served them well. The father claims that the mother is an inappropriate role model for their children and that in her full time care the children are at risk of exposure to witchcraft, sexual abuse, family violence and drug abuse. He claims that the mother maintains an unorthodox lifestyle and that she is unable to provide the children with structure and reliable parenting to the same extent that he has demonstrated. The father says that SH is quite immature and even if the court is persuaded that SH wants to live with her mother, her wishes are ill formed and ought not to not be given the prominence in the judgment that the matters summarised above demand. Although the sisters enjoy each other’s company the father asserts that if it is determined that SH should live with her mother, AH should remain living with him.
The applications
KD (“the mother”) commenced these proceedings when she filed her application in the Federal Magistrates Court at Newcastle on 2 October 2002. In her trial affidavit filed 12 August 2003 the mother identifies twenty-one orders spread over six pages that she asks the court to order. Essentially, she asks that the children live with her and have regular contact with the father. She differentiates between the contact that AH and SH would have, proposing that SH have weekend contact monthly, whilst AH would have contact each alternate fortnight. Provision is made for school holiday contact and special occasion contact. There are a suite of specific issues orders which attempt to address contact changeover, exercise of parental responsibility, communication and provision of information. Based on events post-separation the mother appears to have attempted to formulate orders that will lessen areas of disagreement and provide a clear structure for the children and the parties. Understandably, she is hoping to avoid disagreements generated by ambiguity. During her oral testimony and in closing address she indicated that her expectation was that weekend contact would be a “not less than” the duration ordered and that SH and her father would negotiate additional contact as SH’s commitments allowed.
PH (“the father”) filed an amended response on 16 September 2003 in which he sets out the orders sought at trial. He asks that current parenting orders are discharged and proposes that the mother have contact to the children each alternate weekend from Saturday morning until Monday morning. In the event that the mother’s husband is at home on the weekend contact should be limited to day only contact each alternate Saturday. The orders provide for school holiday contact and injunctions restraining removal of the children from the Newcastle - Central Coast environs New South Wales and the Commonwealth of Australia. His proposed orders include ten notations, which proffer a degree of insight into the issues that the father asserts make the mother an unsuitable full time parent. For example, “The mother, while the children are in her care, shall not alter their appearance in any way or bring them into contact with people who have drug related problems.” And “While the children are in the care of the mother she shall not have esoteric meetings or similar in the children’s presence, or take the children to psychic fairs or the like”.
At the end of the hearing the children’s representative indicated the orders she invited the court to make on the children’s behalf. The orders proposed by the children’s representative are as follows:
1.
That all previous orders in respect of the children SH born on
25 October 1991 and AH born 4 July 1997 are discharged.
2.That until 10 am on 20 December 2003 the said children shall reside with the father.
3.
That until 20 December 2003 the mother have contact with the said children each alternate weekend from 10 am Saturday to
5 pm Sunday commencing 18 October 2003 and by telephone each Monday, Wednesday and Friday between 4.30 pm and 7.30 pm.4.That the father delivers the said children to the mother at W Railway Station car park on 20 December 2003 at 10 am.
5.That from 10 am on 20 December 2003 the said children reside with the father as follows:
(a)Each alternate weekend form 6 pm Friday to 5 pm Sunday or 5 pm Monday if it is a long weekend, except that if the children or either of them are participating in a Little Athletics meeting, the contact shall commence at 10 am on the Saturday commencing on 6 February 2004.
(b)From 4 pm to 7 pm each Wednesday afternoon, or if the children or either of them are involved in an extra curricular activity on a Wednesday another weekday as nominated by the mother when the children have no extra curricular activities;
(c)For one half of each school holiday period being the second half in 2003 and alternate years thereafter and the first half of the holiday period in other years;
(d)At other times as may be agreed between the parties.
6.That the said children shall reside with the mother at all other times.
7.That each party is responsible for the day to day care, welfare and development of the said children when the children are residing with that party.
8.That the father shall collect the children from W Railway Station car park at the commencement of each residence period and the mother shall collect the children from W Railway Station car park at the conclusion of each of the father’s residence periods, except for periods of residence in accordance with order 5(b) herein.
9.That for the purpose of the residence periods provided for in order 5(b) herein, the father shall collect the children from the mother’s residence at the commencement of the period and shall return them to the mother’s residence at the conclusion of the period.
10.That the operation of orders 5(a) and 5(b) is suspended during school holiday periods.
11.That the parties shall postpone a period of weekend residence with the father pursuant to order 5(a), if necessary, to ensure that the children reside with the father on Father’s Day and the mother on Mother’s Day.
12.That each party shall be entitled to exercise telephone contact with the children when the children are residing with the other party, each alternate day between 4.30 pm and 7.30 pm, and at other times of the children request to exercise telephone contact with the other party.
13.That each party shall advise the other and keep them advised of:
(a)Their residential address and phone number;
(a) Any specialist medical appointments which the children are required to attend;
(b) Any emergency medical treatment which the children require;
(c) Any school or extra-curricular activities in which the children are involved and in which parents are able to participate or attend.
14.That for the purpose of school holiday residence periods, the holidays shall be deemed to commence at 10 am on the Saturday immediately after the conclusion of the school term and shall conclude at 5 pm on the day preceding the commencement of the next school term.
15.That the mother continue to obtain dental and orthodontic treatment for the children at the Sydney Dental Hospital or at a facility chosen in consultation with the Sydney Dental Hospital.
16.That each party is restrained from:
(a)Allowing the children access to any documents filed or tendered in these or any earlier court proceedings;
(b)Denigrating the other party to or in the presence of the children;
(c)Discussing any issues raised in these proceedings with or in the presence of the children, unless the issue is specifically raised by the child.
Background summary
The father was born on 12 May 1942 and is 61 years old.
The mother was born on 24 April 1964 and is 39 years old.
The parties commenced cohabitation in about 1991. They married on 20 November 1994. This was the father’s fourth marriage and the mother’s first.
They separated finally on 11 July 1999. Both parties treat 4 July 1999 as the date upon which they effectively separated.
On 7 July 1999 the parties entered into consent orders at Gosford Local Court which provided that the children live with the father (“the Gosford Orders”).
The parties attended counselling as part of an attempt at reconciliation. On 11 July 1999 the mother left the father, taking the children with her into refuge accommodation.
On 14 July 1999 the father applied for and obtained an ex parte recovery order at Gosford Local Court.
On 19 July 1999, without the recovery order being given effect to, the mother returned both children to the father at Woy Woy Police Station. The children have lived with the father ever since.
On 28 August 2000 orders were made by consent in the Family Court of Australia at Sydney providing that the children live with the father and have contact with the mother (“the Sydney orders”).
On 15 August 2002 the mother married ND. Only weeks prior to the start of this hearing her son GD was born.
The hearing
Both parties appeared on their own behalf at this hearing. Although the hearing was listed to take two days, it needed four. At the commencement of the hearing, counsel for the child’s representative sought a direction that the evidence be limited to matters that have arisen subsequent to the Sydney orders. This ruling was sought reliant upon ss.135(b) and (c) of the Commonwealth Evidence Act. It was submitted that revisiting any of the matters that predated the Sydney orders would only protract the proceedings to no forensic benefit. See also Melbourne Ports Authority v Anshun (1981) 147 CLR 589.
Whilst the mother’s case was presented concerning predominantly future issues and hence was amenable to this approach, the father relied far more extensively on events predating the Sydney orders. In essence he claimed that only by examining the mother’s past behaviour as well as that of her partner, would the court fully understands her limited parenting capacity. Ruling in favour of the children’s representative’s application would have deprived the father of the opportunity to present the case he wished to make. Because a number of the allegations made by the father were very serious, I was concerned to ensure that I fully understood the basis for the father’s apparent concerns about the mother. It was not immediately apparent from the father’s affidavit whether his allegations had a substantial or flimsy foundation. Ruling in the father’s favour gave him the opportunity to pursue his allegations about the mother and her partner. He did so with vigour and an intensity, which too often demonstrated a lack of judgment on his part. By this I mean he maintained very serious allegations about the mother’s parenting capacity even where his concerns did not withstand scrutiny.
This is not a case in which it would be appropriate to make global adverse credit findings. There are instances where I am satisfied that the father gave an exaggerated account of seemingly innocuous events and circumstances where I am satisfied his evidence was credible. Similarly with the mother, her denials at time seemed hollow yet at other times her evidence was honestly given. Inconsistencies in their respective testimonies have made it difficult for both of them to satisfy me about particular allegations made. These are identified in the judgment.
The applicant mother relied on the following evidence:
·Her affidavit filed 12 August 2003 as well as her oral testimony.
·Affidavit of ND filed 12 August 2003 and his oral testimony.
The respondent father relied on the following evidence:
·His affidavit filed 29 August 2003 and his oral testimony.
·Affidavit of GC filed 25 September 2003.
·Affidavit of HD filed 29 August 2003 and his oral testimony.
·Affidavit of LB filed 19 September 2003 and his oral testimony. This witness was not required for cross-examination.
·Affidavit of LE filed 29 August 2003 and her oral testimony.
·Affidavit of SD filed 29 August 2003. This witness was not required for cross-examination.
·Affidavit of LM filed 29 August 2003. This witness was not required for cross-examination.
·Affidavit of GC filed 29 August 2003. This witness was not required for cross-examination.
·Affidavit of GH filed 5 September 2003 and his oral testimony.
Both parties and the children’s representative tendered documents that became exhibits.
Pursuant to s.62G(2) of the Family Law Act 1975 on 15 May 2000 Deputy Registrar Boers ordered that a family report be prepared for the Sydney hearing. SM, a court counsellor attached to the Family Court in Sydney, prepared the report, which is dated 7 August 2000[1]. Ms SM recommended,
“It is counsellor’s opinion that AH and SH should spend more time with their mother and that, in view of the age difference between the parents, it is critical to keep both parents very involved with the children. It is unfortunate that the parents do not live in closer proximity with one another as this would allow them to better meet AH’s needs in particular. Counsellor recommends a shared care arrangement, in whatever way is practicable for these people. In counsellor’s opinion it would be better if S at this stage stayed at her current school and saw out primary school there. In high school her wish to live with her mother may intensify and a change of residence, all things being well, could be appropriate then. Therefore counsellor recommends that the children reside with the father during the week and with their mother on weekends. If the mother is able to manage Friday to Monday and the children are not too stressed by the early start on Mondays, then this would be counsellor’s recommendation. Counsellor, in these circumstances, would normally recommend three weekends in four to allow the children some weekend time with the other parent, but in this instance this would involve AH going two weeks without seeing her mother and counsellor believes this to be unacceptable.”[2]
At the father’s request, Ms SM gave oral evidence by video link from the Family Court in Sydney. During his cross-examination of her she emphasised that because three years has passed since her report was prepared, her best recollection of the interviews and observations is contained in the report. In effect that she was totally reliant upon her report in terms of her understanding of the issues and rationale for her opinion.
[1] Exhibit A
[2] Paragraphs 18 & 19 Family Report of SM
On 21 January 2003, I ordered that a further family report be prepared. Court counsellor F prepared this report dated 23 September 2003[3].
She recommended,
“That SH and AH reside primarily with their mother. That they reside with their father every second weekend and also have contact with their father one afternoon per week” and also, “that the change in primary residence take place at the beginning of year school vacation”.
Other recommendations concerned specific issues. Ms F gave lengthy oral testimony. Her testimony supported her primary recommendations and the overall effect of her testimony was that the children should live with their mother.
[3] Exhibit K
Both court counsellors demonstrated competence in their reporting and analysis. Neither was successfully challenged on the accuracy of their reporting of important factual matters. I accept both counsellors’ evidence and give it considerable weight.
Court orders
The first orders are the Gosford orders made pending further order. They are set out below. I do not have the orders made thereafter at Gosford and pending the hearing in the Family Court at Sydney.
1.The children will reside with the father until 9 July 1999.
2.The children will reside with the mother form 9 July to 11 July 1999.
3.The father will transport the children to the mother at her brother’s home on 9 July and will collect the children and the mother on 11 July 1999.
4.Thereafter the children will reside at the family home and both parents will come for the children at the family home.
5.The parties will attend marriage and family counselling through Coastcare as soon as can be arranged.
6.The proceedings will be adjourned to the Local Court at Gosford to coincide with the AVO proceedings.
Notations:
a)The parties acknowledge and agree that the father will be responsible for the discipline of the child AH born 4.7.97.
b)The mother undertakes not to bring into the home any persons not previously known to the home.
c)The parties acknowledge that the Daewoo motor vehicle is joint property and is available to either parent who has responsibility for the care of the children at any particular time.
These orders were made by consent in the Family Court at Sydney. The orders have been registered in this court and thus the court has jurisdiction to determine the mother’s application that they be discharged.
1.That the parties have joint parental responsibility for the care, welfare and development of the children of the marriage namely SH born 21 October 1991 and AH born 4 July 1997.
2.That the above mentioned children live with the husband and that he have the day to day responsibility for the care welfare and development of the children.
3.That the children have contact with the wife as follows:
(a)
each alternate weekend from after school on Friday until 5 pm on Sunday. Such contact to commence on Friday
8 September 2000 and fortnightly thereafter.
(b)Each alternate Thursday evening and such contact commence with AH from noon and with SH from after school until 6 pm. Such contact to commence on Thursday 31 August 2000 and fortnightly thereafter.
(c)The contact in (a) and (b) above is to be suspended in school holiday periods and to recommence with the wife having contact from after school on Friday the first week school recommences.
(d)That should the children be with the wife for the weekend contact is provided in (a) and it be a long weekend then contact be extended until 5 pm Monday.
(e)First half of school holiday periods (with the exception of the mid year winter school holidays and the Christmas school holiday period) from after school on closure of school for the holidays for a ten day period.
(f)For the mid year winter school holiday period from after school on closure of school for the holiday until 5 pm on the Friday before school recommences.
(g)From the closure of school for the Christmas school holiday for a four day period.
(h)From noon on 26 December until 5 pm on 13 January.
(i)That usual weekend contact arrangements be varied to permit the children to spend Mother’s Day weekend with the wife and Father’s Day weekend with the husband.
(j)Such other contact as agreed between the parties.
(k)That the wife have telephone contact to the children daily from between 4 pm to 7.30 pm and that the husband have telephone contact to the children daily between 4 pm and 7.30 pm when the children are with the wife for contact.
(l)For the purposes of the contact referred to herein when the wife has a motor vehicle contact is to be effected by the husband taking the children from after school on Friday to Kariong at 4 pm and contact changeover to take place at Kariong at the conclusion of contact and on Thursdays the wife to collect AH from the husband at noon and SH from school and return them to the husband at home at 6 pm.
(m)At periods when the wife does not have a motor vehicle then contact to take place at 4 pm from Woy Woy Railway Station and conclude at Woy Woy Railway Station and Thursday evening contact to commence with both children from after school at Woy Woy Station.
(n)That should the wife have full weekend work on a usual contact weekend she is to notify the husband and arrange for the contact to be varied and arrange for make up weekends and the wife to notify the husband of such commitments at least 14 days in advance in writing.
(o)That neither party is to remove the children from the Newcastle or Central Coast area for periods longer than three days without notice in writing to the other party.
(p)That neither party remove the children from New South Wales or from Commonwealth of Australia without the written consent of the other party.
(q)That the parties notify in writing the other party as to any proposed change in their residential address and telephone number at least 48 hours before such change takes place.
NOTATIONS
A. The wife will not permit or cause the children to have body piercing or be tattooed whilst in her care or cut the children’s hair without consultation with the husband.
B. That should the children be unwell or require medical attention whilst in either parties care then the other parent to be notified.
C. That should the husband be hospitalised the wife to be notified and given the opportunity to care for the children during the husband’s period of incapacity and the wife acknowledges she will if at all practical care for the children in the husband’s home.
D. That the husband advise the school and if necessary consent in writing that the wife be given copies of all school reports and notices and similar notices in respect of preschool.
E. That the wife not discourage SH from attending Scripture lessons.
F. That the wife not physically chastise AH whilst in her care.
G. That neither party denigrate one another or permit others to do so in the presence of the children.
H. That the wife forgives the husband the amount of $20,000 outstanding to her by way of property orders made 30 September 1999 and that such amount be applied towards child support for the children at the rate of $10 per week per child from the date of these orders until 31 July 2002.
I. That the husband consents to the wife having SH’s ear pierced for the her next birthday.
J. That when the child goes on contact in her school uniform then such uniform is be returned clean at the conclusion of contact.
K. That should the husband not have a motor vehicle contact is to commence and conclude at Woy Woy Railway Station.
The mother’s circumstances
The mother lives with her husband ND in a three-bedroom townhouse. Their house is rented from a West Australian landlord on a six-month tenancy. The lease includes an option for renewal and/or to maintain the tenancy on a weekly basis. I accept the mother’s evidence that her landlord is content with her continued occupation of this home and that her stated aim of remaining there indefinitely is achievable. This tenancy is no more or less secure than that achieved by usual rental arrangements. Only a few weeks prior to the hearing the mother gave birth to her son by Mr ND, GD. In spite of the father’s concerns about her husband, the mother believes that her marriage to Mr ND will succeed.
The mother described her husband as a softly spoken and gentle man who maintains a light hearted approach to life. They met at a Mind, Body and Spirit festival in Sydney three years ago. The mother was a reader and Mr ND the booking coordinator. Mr ND is a disability pensioner, his disability relating to a spinal injury suffered in the early 1991. He uses a walking stick to lean on. He has been married twice before and has two daughters by his second wife. He does not have contact to them. In addition to an assault conviction in 1993, Mr ND has a number of convictions[4] for dishonesty matters. The first in 1997 and the most recent in 1996. His criminal antecedents are not so extensive or of a type that I consider there is an unacceptable risk that he will he will expose the children to criminal activity. Even if he was inclined to revert to old ways, which I am satisfied he is not, the mother would not tolerate it. During the months leading up to the hearing, whilst pregnant and anxious about the proceedings, the mother said she has felt stressed and at times has become cross with Mr ND. She has appreciated his calm influence and denied the father’s allegation that Mr ND is aggressive with her.
[4] Exhibit H
The mother has a Japanese mother and German father. She had a Catholic convent upbringing, although moved away from Christianity many years ago. The mother sees herself as holding values consistent with Buddhism, but does not consider herself a practising Buddhist. In their father’s care both children have been raised as Christians and SH particularly identifies herself as a practicing Christian for whom religious practice is an important aspect of her identity. The mother’s diverse background gives her the insight and capacity to respect and nurture the children’s Christian values, which she will do for so long as the children desire it.
In her affidavit the mother addresses her health issues. This is because the father claimed that she did not enjoy good physical and mental health in the 1999 application. She agrees that she had back muscle strain problems, which she says coincided with hoisting the father in and out of his wheelchair and pulling him around the floor in the showers. A MRI conducted in 2002 revealed lower back disc deterioration. Since treatment in 2002 she had not had recurrent pain. In spite of her lower back problems she has been able to carry her baby full term and it does not limit her capacity to work, do house work, carry GD or attend to the effort associated with travel for contact. Earlier ovarian and uterus problems have resolved, a matter reflected in the subsequent birth of her children. She has had high blood pressure during her pregnancy and currently has haemorrhoids. Post separation she was depressed and took prescribed anti-depressant medication. She has not taken antidepressants for a number of years now. Quite clearly the mother believes she has made many positive gains in terms of her own health and establishing herself independently of an increasingly unhappy marriage. I am satisfied that the mother is able to manage her health issues and that her health, physical and mental does not interfere in any way with her capacity to meet the children’s physical, intellectual and emotional needs.
The mother plans to take casual employment, teaching or selling educational books and toys. She has accepted tutoring work that will give her a few days work prior to Christmas 2003. Presently the mother has no plans to return to full time work in the foreseeable future. Her priority is caring for the children. The mother is able to read tarot cards, read palms and works as a physic at physic fairs. She has been interested in these activities for many years. Mr ND is also a physic and works occasionally at physic fairs. Both she and Mr ND have done work for GM and took the opportunity to have their honeymoon in Tasmania at Easter coinciding with Mr ND working at one of his phsycic fairs.
The father’s circumstances
The father summarises his early life at the start of his affidavit thus:
“I am a wool classer by profession, I was snr., NCO in the Australian Army. I then became the Managing Director of various companies in the investigation and security field, employing 100’s of operatives. I operated a professional music club and nightclub in Sydney. I have also produced and directed stage productions both here and overseas. I was also a professional actor in Aus, NZ, UK, Europe and the USA. I have been a Justice of the Peace for NSW since I came of age….”[5]
LB explained that the father’s restaurant was “ … a lingerie restaurant where all meals were served by waitresses dressed only in lingerie.”
[5] Paragraphs 2 and 3
The father is a self-made man. He left home and school when only twelve years old. Throughout the hearing he referred to a wide range of positions he has held. He has an adult son by his second wife to whom he is close and whose relationship with the children he is concerned to promote. Physically tall, the father’s confident personae and obvious belief in the correctness of the stance he took in the proceedings revealed that his is a formidable presence. The father’s quick grasp of procedure, rulings and the manner with which he cross-examined witnesses during the hearing revealed that he has a prodigious intellect.
In May 1985 the father injured his back and because of the injury he has not worked again. The injuries include lower back pain, shoulder and neck damage. The father has worked hard to regain relative freedom of movement and has progressed from a wheelchair, then two walking sticks and presently requires one stick periodically. With this history it is not surprising that the father has developed osteoporosis. The mother claimed that osteoporosis may interfere with his capacity to physically care for the children. The father has a gym under the carport at his home that he uses to supplement his gym work. He has joined an ‘Active over 50’s strength training” program at a Fitness Club. He can “leg press over 220kg, back pull 220k and bench press over 100k, and I can hit the heavy bag full on.”[6] I accept his evidence that his osteoporosis is well controlled. The father is asthmatic but has not used a Ventolin puffer since 23 June 2001. I accept that his asthma is well controlled. The father has not needed painkillers for his back injury for over three years. I infer that the father’s entitlement to a disability pension is based upon his physical injury and that he is presently incapacitated to the extent that he is unable to take paid work. However, he manages his health in such a way that he is physically able to take care of the children. Having seen the way the father managed himself throughout the hearing I have no difficulty accepting his evidence that he has never felt better.
[6] Paragraph 141 father’s affidavit
The father lives with the children at a caravan park. After AH’s birth he purchased a manufactured demountable home, which the parties located at a Caravan Park. The father emphasised that this site differs from caravan parks as the facilities are generally superior and most residents own their dwellings. Hence the population is stable not itinerant. His home consists of three bedrooms, two bathrooms, two porches, lounge room, dining room and kitchen. Both children have their own bedroom, which he and Mr HD painted recently. This has been their home since shortly after AH’s birth. The children are well integrated in the park’s community, a number of its resident’s giving evidence to this effect. The father’s home provides the children with adequate and stable accommodation. He supports the children from his pension, family allowance and occasional child support.
SH started kindergarten in 1996, which school she currently attends. AH started kindergarten at the same school this year. The father is keenly interested in the children’s education and does his best to participate in their school life. He attends parent and teacher nights, parades and most activities that parents are invited to attend. Prior to starting kindergarten the father enrolled AH in a playgroup where he established friendships with mothers of children AH’s age. Ms LM, for example, confirmed her regard for the father’s parenting capacity and said that she provides him with information he can use as SH approaches puberty. The father enjoys helping out at the children’s school and this year has helped in the canteen on Thursday mornings and also in the library. I accept that he and the children enjoy his school involvement. Three years ago the father and children started attending church. SH attends “Young Women of Faith” meetings on Friday evenings and AH enjoy “Kids Connection” at church.
Relevant Law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Determining the children’s best interests
The children’s wishes and maturity
A substantial issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to, in this case, her welfare. The Full Court of the Family Court considered this issue in R and R: Children's wishes [7]. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W [8]. “The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.” Once a child's wishes are established, the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus:
[7] (2000) FLC 93-3000
[8] (1995) FLC 92-598
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best wishes.”
R and R: Children’s wishes (supra)
The mother asserts that SH has a longstanding desire to live with her and that the strength of the wishes are such that her parents should give effect to them. In her oral and written testimony she recounted numerous conversations during which SH has told her that she wishes to live with her. Because the father does not agree that SH desires to live with her mother or, in the alternative, that her wishes are soundly based, the mother invites the court to order in accordance with SH and AH’s wish.
On 5 July 2000 court counsellor SM interviewed SH and on 14 July 2000 observed both children with each of their parents. SH was
8 years old. Court counsellor SM reported, “SH indicated her wish to live with her mother. This was consistent with her parents’ description as to what she was likely to do. She also said that she wanted to live with AH”. SH explained to the court counsellor that she missed her mother and was prepared to contemplate AH remaining with her father while she moved into her mother’s care. The court counsellor indicated that SH needed more contact with her mother and postulated that SH’s desire to live with her mother may strengthen and that a change in residence coinciding with SH starting high school could be appropriate.
Without any hint of equivocation three years later SH told court counsellor F that she wishes to live with her mother and, “see her father every second weekend and on one occasion mid week from
3 pm to 6pm”[9]. The father questioned the court counsellor at length about her opinion that SH brought to this assessment her faith that the courts would hear her now that she is older and trusted that her wishes would be implemented. SH wants to change residence now and hopes that she can settle into her mother’s home before school starts next year. She wishes to avoid changing school if possible once she starts high school. However, if her parents and the court are unable to give effect to her primary desire to live with her mother without disrupting her education, SH has made it abundantly clear that whatever the cost to her she is now determined to live with her mother. The father has discussed with SH that she might move to her mother’s care once she has completed her secondary education. SH does not agree that this is reasonable. The counsellor emphasised that SH’s desire to live with her mother does not involve rejecting her relationship with her father. SH told the court counsellor that; “she finds her mother more understanding than her father and finds herself more able to tell her mother things that she cannot discuss with her father”. The court counsellor concluded that this is partly a gender issue and also partly personality. SH pointed out to the court counsellor that she enjoys the peace and quiet of her mother’s home.[9] Paragraph 25
The father said that even if SH does wish to live with the mother, which he did not concede, she is an immature child whose wishes should carry little weight. Ms LE and Mr HD corroborated the father’s claim that SH is immature. Compared to another child in Ms LE’s swimming classes she considers SH less mature. Mr HD has a grandchild of similar age who he considers her and her girlfriends more mature than SH. By contrast the court counsellor described HS as a mature child, which maturity is reflected by the way she explained her desire to live with her mother and consequently her concerns for her father. She decided he would be able to cope without her. So too the way SH was able to settle her younger sister into the counselling session and her compliance with the counsellor’s direction that she sit quietly while Ms F talked with AH, indicated personal maturity.
The father’s assertion of SH’s immaturity is inconsistent with the control he gave her in relation to her choice of high school and considerable responsibility for inquiring about alternate schools and entry into the gifted and talented student’s stream. It is also inconsistent with his decision to give SH Mr ND’s affidavit filed in these proceedings to read and his direction to SH that she take care of AH during contact. He says he has grave concerns for AH during contact and his decision to in effect charge SH with responsibility for overseeing her safety during it indicates that contrary to his assertion that SH is immature he has treated her for quite some time as having real maturity. In his affidavit the father highlighted SH’s achievements. In 2002 SH was the under 11 school athletic champion, this year she is house captain of the Bellbirds house, she organised the house swimming team and represented the school in a series of zone sports and swimming competitions. This year SH was one of three children selected by her school to attend a GAT camp. Unfortunately, her parents were unable to meet the $250 attendance fee. The totality of these achievements reveals that SH is a talented, disciplined and capable child. She achieves distinction in both school and extracurricular activities. Without the court counsellor and mother’s evidence this alone indicated that far from being immature, SH has significant personal maturity.
The mother’s and court counsellor’s evidence give insight into the child’s capacity to consider and evaluate her feelings and situation. The totality of the evidence persuades me that the court counsellor’s assessment of SH as a particularly mature child is correct. I am satisfied that SH is genuinely motivated to live with her mother and that her wishes must carry real and significant weight.
In December 2002, the mother obtained an order in the Federal Magistrates Court in Newcastle that enabled her to take the children on a holiday to the Gold Coast. An order was necessary because the father unreasonably refused to give his consent to the trip to Queensland, out of concern he claimed that the mother would abscond with the children. At different places on the way SH told her mother that she would like to live there, for example at the Gold Coast close by to Auntie M, then near her Auntie K and finally at Brisbane. The father submitted that this undermined the mother’s claim that SH had a strong wish to live with her and suggested that SH did not know what she wanted in terms of her residence. The mother said that SH greatly enjoyed her holiday and on a number of occasions was happily excited by places and people. Her happy exclamations that they could live there reflected only that she was having a good time. The child’s statements implied that the mother would be with her. In any event these statements took place months before SH met with the court counsellor. Thus even if she had been ambivalent in early 2003, which I am satisfied she was not, her resolve to live with her mother is now firm and clear.
Court counsellor F tested SH’s resolve and explored with her the veracity of her deliberations. SH understands the changes in her daily life that a change in residence would necessitate, including leaving behind friends, possibly scholastic opportunities, her local sports team, daily interaction with her father and the community within which they live. SH had considered the nature and extent of contact that she wished to have with her father. She planned regular and alternate weekend contact and supplementary mid-week face to face and telephone contact. SH made it absolutely clear to the court counsellor that she is firm in her resolve. SH loves both of her parents and is dearly loved by them. She is acutely aware that her father wants her to live with him. Knowing, as she does, that by asserting her desire to live with her mother, she will hurt her father, she has decided that it is time that her wishes were listened to. Relevantly, SH’s wishes are no spur of the moment impulse. She has held these wishes for three years and they are thus strongly held and her resolve that should be given effect to is strong. SH is a mature 12-year-old whose wishes should be given material weight. They are soundly based and well reasoned.
At only 6 years old AH found the family report process more unsettling than her older sister did. When court counsellor F attempted to talk to her on her own, AH clung to SH and could not be coaxed into the interview room without her. The court counsellor concluded that AH would continue to be uncomfortable if required to be interviewed alone and that the child would find the process easier to manage if SH were present. In my opinion the course followed by the court counsellor was appropriate and enabled AH to participate more extensively than would otherwise have been the case. The father was concerned that SH was present during the interview and questioned the court counsellor about whether SH’s presence may have influenced AH to support SH’s desire to change residence. Ms F explained that during her interview AH could see SH but that SH did as the court counsellor asked and sat quietly and did not participate in AH’s discussions with her. The father emphasised that SH has smacked AH and in effect invited the court counsellor to infer that SH may have intimidated AH during the interview. The court counsellor rejected this notion. Rather than appear intimidated AH initiated her sister’s involvement. SH did not push her way into this process, rather AH could only be comforted by her older sister’s presence. This does not suggest a dysfunctional sibling relationship in which AH’s will is overborne by SH’s. Rather that AH perceives SH as supportive and comforting in situations that she finds disconcerting. Whilst theoretically SH’s presence could have influenced AH’s discussions with the court counsellor, there is nothing reported by the court counsellor that suggests AH was actually influenced by her. It seems to me that if AH was anxious about SH’s presence it is unlikely that she would have inferentially criticised SH saying, “The one thing I don’t like is fighting with my sister”. This remark was made in a light hearted and teasing fashion during which AH “laughed devilishly beaming at her sister”[10]. This evidence clearly demonstrates that AH can joke and disagree with her older sister. Also that she trusts SH. I am satisfied that SH’s presence did not influence AH to express wishes consistently with those held by SH. AH’s comments to the court counsellor reflect her own wishes and feelings.
[10] Paragraph 30
Asked by court counsellor F to nominate her favourite person, AH identified her mother. She nominated her favourite house, “sometimes it was mum’s” and by inference at other times also her father’s. AH did not answer directly the court counsellor’s question about where she would like to live. She replied, “I think I’m going to mum’s, is that good or bad?” Later having asserted that she could not decide between her parents AH said, “I love my mum and I love my dad”. When asked to whom AH would like to give a nice present, she responded, “mum”. The court counsellor concluded, “AH’s wishes are not so clear cut as those of her sister. However, she did lean to a placement with her mother on this occasion”[11].
[11] Paragraph 41
The father claims that AH’s statement that she wanted to live with her mother is motivated by a desire to acquire a particular style of toy car. His son G confirmed that AH had talked about getting a car. The mother pointed out that AH had the car to which she believed the father and G made reference. The court counsellor explained that in her experience a child AH’s age, if the car was important would have, “Blurted it out or drawn it to the court counsellor’s attention”. From the court counsellor F’s point of view there was no evidence that the car was an influencing factor in AH’s discussion of her wishes. I agree that it had no influence upon her wishes.
Court counsellor F disagreed with the father’s proposition that AH is almost as mature as SH. Ms F commented that she observed A, “being very sooky about her mother, from all accounts she has been for a very long time”. In my opinion the court counsellor took a considered and cautious approach to AH’s wishes and correctly does not assert that they should carry the same weight as her older sister’s. AH leans in favour of residence with her mother, but does not have the maturity or life experience to evaluate in the manner that her older sister does the impact of her parent’s competing proposals. Her wishes favour the mother’s application but must be treated cautiously.
The nature of the children’s relationships
For the entirety of their lives the children have lived with the father. Since separation the father has been their prime care-giver and they are strongly attached to him. This strong relationship has contributed positively to both children’s development. The strength of the relationship is such that whether the children live with their father or their mother it will endure. If living with their mother the children and father are entitled to see each other regularly so that its strength is reinforced. Provided the children have regular contact to their father I am not persuaded that their relationship with him will diminish in any way.
Court counsellor M concluded that AH was anxiously attached to her mother. During her observation session AH was distraught at the point of separation from her mother and the mother in turn became distressed. The mother told the counsellor, “That when AH cries like this she also cries because she is upset by AH’s upset”[12]. AH’s presentation with the father was quite different. With her father AH, “presented contented and happy. Unlike the previous occasion, her interactions with her father strongly suggested a secure attachment to him”. During cross examination court counsellor M rejected the father’s proposition that this meant that at that time AH had a stronger attachment to him than she did with her mother. Ms M explained that the descriptor “anxious” is concerned with the nature not degree of the child’s attachment. She postulated that perhaps because of maternal depression, emotional or actual unavailability post-separation, that AH was uncertain about her mother’s continued availability to her. Hence her anxiety. Compared to her mother AH was more certain of her father’s continued presence. Given the child’s age and the fact that she had lived with her father since separation this outcome is not surprising. It does not indicate that the mother was unable to meet the child’s needs at the time.
[12] Paragraph 13
Ms SM cautioned that the father (and the court) should not over emphasise an anxious attachment identified three years ago in a 3-year-old. Or that an anxious attachment at that point assisted the court determine which of the parents had been the child’s primary carer prior to separation. An important issue from the father’s perspective is that the mother was diagnosed with post-natal depression following AH’s birth. The mother agrees that she was diagnosed as having postnatal depression but now doubts the accuracy of this diagnosis. With hindsight, she believes that her relationship with the father was highly dysfunctional and that her depression had its genesis in their relationship and was not post partum depression. In my opinion it does not matter whether the mother’s depression was post partum or reactive. From AH’s point of view her relationship with her mother was probably influenced by the fact that her mother was depressed. The parties agreed to an extent that the father assumed the care of the children in the mornings. I accept the mother’s evidence that she was more substantially involved than he was in their care in the afternoons. At separation AH was 3 years old. From her perspective her mother dramatically disappeared from her daily life and contact with her, according to court counsellor SM, was insufficient. It is likely that these factors contributed to AH’s anxious attachment, but do not seem to have qualified the child’s affections for her mother and desire to spend more time with her. AH’s relationship with her mother is strong and has survived living separately from her for most of her life.
I agree with both counsellors that the court must give much greater weight to the children’s current attachments and relationships. Hence the nature of AH’s attachment with her parents and sister needs to be examined in their current context and based on current information. It was evident to court counsellor F that AH still finds separating from her mother difficult. During the observation session the children and their mother played happily, a scene described by the court counsellor as evidencing, “An ease of being together, constant chatter and concentration of the game at hand”. In spite of the father’s claims to the contrary I am satisfied that AH has a strong, loving and healthy relationship with her mother.
AH had been quite negative about Mr ND to the court counsellor, explaining that she did not really like him and that sometimes he yells at the mother. Yet the observed interaction put a different gloss on this relationship. When Mr ND joined the observation session he took his place in the family group immediately. The court counsellor reported that there was much hilarity and that AH approached Mr ND asking him to view her drawing. The court counsellor reported that AH was comfortable with Mr ND. When he carried her because she needed to reach something high she giggled appreciatively at him. In her oral testimony the court counsellor emphasised that although orally critical of Mr ND, AH’s interaction with him was completely different. She beamed at and giggled with him. The counsellor observed an easy interaction, which belies the child’s complaints to her father and the court counsellor about Mr ND. I am satisfied that both children have established a comfortable and pleasant relationship with Mr ND. With time and their mother’s quiet support, this relationship will grow. Although the father may fear it, their relationship with Mr ND will never be as important to the children as their relationship with their father. Essentially Mr ND sees himself as the children’s friend, he does not seek to supplant the father.
By comparison to the father, the mother has never had the exclusive care of either child since their final separation. Presently, SH feels a strong pull to be with her mother. Theirs is a loving relationship that is also solidly based. Although the children’s father has been their prime care-giver for many years the children and mother have developed and maintained a strong relationship. In this case it seems to me that there is a nexus between the children’s wishes and how they perceive their relationships with their parents. Both children intuitively respond to their relationship with the mother by wanting to live with her. While it is not always the case I am satisfied that the children’s wishes corroborate the mother’s claims and Ms F’s evidence that their relationship is healthy and soundly based. Where relationships, children’s wishes and maturity and parenting capacity synchronise this is a factor that should carry significant weight. Indeed I give it significant weight in favour of the mother'’ application.
Both children appear pleased by their half brother. AH was initially anxious about the baby and concerned that she was to be displaced as her mother’s “little girl”. With time the mother has been able to alleviate her concerns and once the mother knew she was to have a son AH looked forward to this with anticipation, saying “And now you have a big girl, a little girl and a little boy”. AH had been worried that her mother might die having her baby, a worry the court counsellor said was common in children her age. It does not indicate that AH may dislike GD or have any other ramifications for their relationship. SH took the news that the mother was pregnant angrily. As she did with AH the mother was able to shift SH’s negative opinion and SH has welcomed the new baby’s arrival. The mother says that the children have reported disparaging remarks made by the father about their half brother, to the effect that he is not really their brother. I accept that he makes remarks with this effect within their hearing and that he is unlikely to promote their relationship with GD. Living with their mother the children have a far greater opportunity to develop a strong and loving relationship with their new brother than if they live with the father or merely have contact to her. This weighs in favour of the mother’s application.
Changing the children’s circumstances
The father’s proposal does not involve any significant change in the children’s current circumstances. AH will continue to attend the same Primary School, continue her peer and sporting relationships and have regular contact to her mother. The father is unlikely to ever work in the paid work force again and thus both children will have his full attention. Because she is starting high school wherever SH lives she faces change. Putting school to one side, in her father’s care SH will continue Little Athletics in her current squad and her friendships established in her, “Women of Faith” Friday evening group and local community will be able to be maintained. The father believes that he and the children enjoy their life together. They are settled in their local community and have friends at school and in their neighbourhood.
I agree with him that the arrangements that he has established for the children’s care have served them well and are completely appropriate. The mother readily acknowledged his devotion to the children and made no real criticism about his care of them.
In their father’s care both children have become involved in Little Athletics and learn piano. SH is a keen sportswoman and a fine runner. For so long as the children wish to continue Little Athletics, the mother will encourage their participation and ensure their attendance at training and carnivals. The mother is musically talented and enjoys singing as well as playing a number of instruments. Although she would like to maintain piano lessons, she frankly conceded that she is unable to commit to purchase a piano and this would necessarily mean that the children would be unable to continue piano tuition for the foreseeable future.
The father initiated and now ensures both children’s regular attendance at the Dental Hospital in Sydney for orthodontic treatment. SH has a, “severe class III malocclusion with a very poor bite relationship”. [13] In lay parlance this means that SH has a protruding lower jaw which if untreated could lead to considerable discomfort in the muscles of her face and in her joints. AH shows similar signs.[14] The children attend the Dental Hospital for treatment each few months. Preventative treatment now and in the foreseeable future will lessen the prospect that surgery may be required in the future and ensure that both children maintain their lovely smiles. The mother made inquiries at a Hospital Dental Clinic and understands that similar facilities to those available at Sydney Dental Hospital could be made available there. The father was greatly agitated at the prospect of any change in the children’s treatment. The mother agreed, in the face of his concern, that she would attend Sydney Dental Hospital or such other dental facility as arranged in consultation with the children’s current doctors. I am satisfied that she will do so.
[13] Report PT Annexure K1 father’s affidavit
[14] Report of child dental clinic AnnexureK2 father’s affidavit
Should the children live with her, the mother plans that A attend a Public School near her home (about 1 km away) while SH would attend one of three High Schools in the area. She does not believe that one of the High Schools will challenge SH scholastically and SH’s opportunities there may be less than is preferable. Because SH is academically ambitious and is categorised by the Department of Education as “gifted and talented” SH has sought admission to a school, which has a GAT stream. If accepted there, the mother plans to transfer SH to another school in Newcastle, which also has a gifted and talented student program. The mother’s information about local schools is based upon discussions with local parents. She has not inquired of the Department of Education whether SH’s acceptance into one school could be transferred to another. The father has facilitated SH’s enrolment at a certain college and paid a $200 bond confirming her enrolment in Year 7, 2004. A friend has advanced $4,000 that he can use to pay the child’s fees.
The arrangements proposed by the mother are entirely satisfactory. The father is concerned that the children may have to share a bedroom. The mother’s house has three bedrooms and she and Mr ND intend that GD, whilst he is a baby, will sleep in their bedroom. Eventually, they may decide that he should have his own room and the girls may need to share either with each other or one with GD. The prospect that the children may eventually have to share a bedroom, with each other or one with GD, is inconsequential. If tensions arise between the children because they share a bedroom, the mother is capable of resolving disagreements. There are important decisions to be made in relation to SH’s school. Pending finalisation of these proceedings, the mother could not assume that she could make arrangements for SH’s attendance at high school because SH lives with her father. The arrangements he has made reflect that. While I accept that the mother could have made more exhaustive inquiries she has sufficient information with which to set about deciding where SH should attend high school. If SH remains living with her father, she will probably have at least three or four friends or acquaintances that will attend the same school. In her mother’s care she is likely to start high school not knowing any of the students at the school. In spite of the father’s evidence that a number of SH’s church acquaintances will attend a certain school, SH does not suggest that any of her close friends will necessarily attend high school with her. Having friends at the same school can make the transition from primary school to high school less daunting. SH, however, is a particularly motivated student and whichever high school she attends she will quickly settle into it.
Living with her mother, friendships established where she is now and in her local community will be disrupted and in the long term probably lost. However, SH and AH will both be able to make new friends. At their ages friendships are fluid and their loss has less significance than it does for older children. This is apparent from SH’s conversation with AH as they drove with the mother past the local primary school. AH said “It looks like a nice school but I don’t want to leave my friends A and C”. SH said “I made a mistake when I was your age, AH. I said that I wanted to be at School with K, because she was my best friend. But she’s not my best friend anymore. Friends come and go and out of everyone I missed mum the most. You’ll find new friends anywhere AH, but little girls should be with their mummies.” Because a change in SH’s residence accords with her strong desire to do so, she will have a positive frame of mind when she adjusts to these changes. Holding her back is potentially more disruptive than giving effect to the changes she seeks. AH also leans in favour of living with her mother. Although she will find leaving her father’s care and the park community unsettling, she is also likely to approach a change in residence with cautious optimism and anticipation.
The change that potentially has the most adverse effect on the children is separating them from each other. I have already made findings about the strengths of these children’s relationship. I agree with the mother that they would be devastated if they were unable to live with each other. I was surprised that the father mounted an argument that the girls’ relationship with each other are not so strong and that separating the children was something the court could contemplate. When he prepared his affidavit the father appeared to emphasise AH’s attachment to SH, for example, her yearning to attend the same school that SH attends. Once he considered the family report in which SH’s wishes are strongly articulated the father appears to have decided to take a different tack concerning his opinion of the children’s attachment to each other. If the father has convinced himself that the children’s relationship is not so strong that separating them is contrary to their best interests, his understanding of their emotional attachment to each other does not have the same intuitive empathy and understanding that the mother’s has. Separating the children potentially puts their relationship under pressure; immediately it reduces their opportunity to enjoy each other’s company and support and in both the short and long term undermines their identity as sisters. These children have always lived together. Both derive support and comfort from each other. Any outcome that undermines rather than supports this relationship is inconsistent with both children’s welfare.
The father emphasised that since separation the mother has changed residence a number of times and has had a number of boyfriends. By comparison he has lived in the one place and has not re-partnered. Essentially he claims that even if her current circumstances are considered adequate it is highly likely that the mother will end her marriage with Mr ND and move home time and again. Hence the children’s lives would be disordered and their education chaotic. At separation the mother said she was an emotional mess. She was depressed that the children did not live with her and had limited financial resources. She asserts that she agreed that the father could retain the lion’s share of their assets, I infer the home, so that he could accommodate the children. In the first few months after separation she stayed in two refuges, with her mother. In many cases the parent who no longer has use of the matrimonial home needs time before they can establish settled accommodation. The inability to do so immediately often results from personal distress at family break up and often reflects limited financial resources. Both circumstances appear to be apply here.
In about August 2000 the mother moved into a flat. She lived there alone for about one month and then took a flat mate. AG moved in after that flat mate departed. Within a few months he and the mother established a sexual relationship. It ended unhappily and Mr AG attacked ML who he wrongly believed was in a relationship with the mother. Mr ML was simply visiting the mother at the time as they share an interest in music. On 3 July 2001 the mother wrote to the father and told him that she was moving. This home was owned by her then boyfriend GF. She had thought that she would be able to settle in there for some time, but surprisingly after eight years on the market the home sold after three months and she needed to move on. The mother decided to end this relationship, as although she liked him she disliked his consumption of alcohol. In late October 2001 the mother rented a half house at Highfields. She lived there alone. Mr GF visited her occasionally but their relationship did not resume.
The children met Mr AG and Mr GF. It is probable that they were aware that the mother established relationships with them. The father said that the mother introduced her partners too rapidly and that the mother ought to have been more certain about these relationships before she involved the children in them. I agree with him, these changes may have been disconcerting and had the children been living with the mother quite confusing.
The father alleges that after an AVO hearing on 27 October 1999 the mother said to him “I am screwing 6 guys at the moment, 2 of who are on heroin.” He instructed his then solicitor to write to the mother complaining of the risks this exposed the children to. I accept the mother’s denial that since separation she has had numerous sexual partners. I accept that she did not say the words attributed to her by the father in his affidavit and letter. Not long after the solicitor’s letter was dispatched the mother attended contact accompanied by a friend “T”. Immediately after he heard about these men the father set about investigating their circumstances. He claims that he managed to obtain personal information about T from a methadone clinic. If this is true just how he could access another person’s confidential records is most concerning. The father concluded that because the children had told him that T was at the mother’s place on weekends and attended a contact changeover that she was in a sexual relationship with him. He made the same assumption about ML. The mother took the children away for a weekend to the Barrington’s with Mr ML and the father once again leapt to the conclusion that theirs was a sexual relationship. I accept the mother’s evidence that it was a platonic friendship based upon a mutual interest in music and karaoke. The father’s background checks on Mr ML even included driving to his premises and photographing them.[15] I infer that he used his own car and that on this occasion the car was sufficiently reliable.
[15] Exhibit D
The totality of the evidence satisfies me that since separation and until she commenced her relationship with Mr D the mother had relationships with two partners, Mr AG and Mr GF. If there were more, the children were unaware of their existence and as an adult the mother was entitled to have relationships that she kept private. If there were other brief relationships they do not detract from her capacity to provide a settled home life now or in the future.
Both children initially disliked Mr ND and SH became distressed when told by her mother that they would marry. The mother recounted “SH was adamant that she would disown me and never have contact with me again. S said “ I wanted to live with just you, me, AH and the guinea pigs. You are not allowed to marry ND. You are not allowed to marry anyone but dad. You have to be a H otherwise if you have another name, no-one will know that you are my mum.” Over the following weeks and months the mother quietly set about showing SH that her relationship with Mr ND was strong and that SH needed to realise that in spite of her objections as an adult the mother had the right to make this choice. SH relented and now has a comfortable and appropriate relationship with Mr ND. This was a very big issue from SH’s perspective. In this instance the mother demonstrated that she can manage significant changes in the children’s lives even when the children are resistant to the change. I have no doubt that once he was aware of Mr ND’s presence the father did nothing positive to help the children form favourable opinions about him. His repeated incantations that they should be careful during contact probably heightened their uncertainty about him. Against this background the fact that the mother slowly brought both children around reflects their trust in her and corroborates her claim that the children are strongly attached to her.
While the mother accepted Mr ND’s marriage proposal after they had been dating only a short time, they had known each other for a number of years. Her decision was not ill considered. Since they commenced cohabitation as a couple they have needed to address some most difficult circumstances. Firstly incorporating Mr ND into the children’s lives. Then dealing with the father’s relentless attack upon Mr ND’s integrity. In her affidavit the mother deposed “I await KD’s affidavit in anticipation of what kind of dsyfunctional member of society KD will depict my husband ND to be.” Her words were prophetic, the father has mounted a most serious attack on Mr ND which I have no doubt will continue after these proceedings are over.
Upon becoming aware that the mother intended to maintain these proceedings, the father set about investigating Mr ND. He has investigated other men with whom the mother has been involved as well. His current investigations focused on Mr ND’s former wives JW and GC.
Mr ND married GC on 12 May 1990. They have two children KA born 9 April 1991 and JL born 15 September 1993. Although required for cross-examination Ms GC did not attend. As a consequence where there is a conflict between her evidence and that given by Mr ND, I prefer Mr ND’s testimony. Mr ND impressed me as genuinely motivated to give as an honest account as he could. He described a difficult separation from Ms GC and says that in spite of the fact that he has obtained orders for contact from Lithgow Local Court she has refused to comply with them. He denied generalised allegations that he was physically violent to his former wife, but agreed there was an incident of physical violence in September 1993 and that Ms GC obtained an apprehended violence order for her protection from him. On 30 June 1993 Mr ND was convicted of assaulting Ms GC in relation to which he was placed on a twelve-month good behaviour bond.
The father claimed that the court would share his suspicions that Mr ND does not have contact with his two children. He appeared to imply that the absence of contact per se corroborated his concerns about Mr ND. I accept Mr ND’s evidence that he wants to maintain a relationship with his daughters by Ms GC, but that doing so is impracticable and fraught with difficulty. It is a sad reality of many children’s lives that their parents cannot cooperate after separation so that parent/child relationships can be maintained. I do not accept that because Mr ND does not maintain contact with his children that he is unable to establish a healthy relationship with SH and AH. Nor does the existence of family violence in an earlier dysfunctional relationship mean that there is an unacceptable risk of family violence in a later, apparently healthy relationship.
Nevertheless, the presence of earlier family violence requires that the court carefully examine Mr ND’s relationship with the mother. Although she was pursued vigorously and at length by the father she was unshaken in her denial that her relationship with Mr ND was violent. Mr ND denied any violence in their family life. Their denials were credible. The father relies on statements he attributes to the children as to the current state of the mother’s relationship with Mr ND. For example, “mum says to ND ‘pack your bags and go’ and, both children reporting the mother said, ‘When ND gets me a house and the baby comes I’ll get rid of him, we fight too much”. The father explains, “I have naturally inquired of the children about how they handle the situation when these arguments and screaming matches erupt.” AH told him, “I put my hands over my ears, sometimes I hang onto mum’s leg or we go to a room”. SH has said, “I tried to ignore it, I even stand there and smile at them for their childish behaviour, but I think this makes it worse, I sometimes go to another room now”. AH told the court counsellor that Mr ND sometimes yells at her mother. Occasional yelling does not indicate a heightened risk of family violence. The children’s statements to their father, even if accurately reported, do not persuade me on the balance of probabilities, that there is a dysfunctional element to this relationship and/or an unacceptable risk that any tensions will spill over into domestic violence.
The mother alleges that she has been the victim of family violence from the father. As a much younger partner in their marriage she says that her will was overborne and that on occasion the father was violent to her so that by the time they separated her self-esteem was at a low and she felt unable to resist him. The father provided evidence from a number of witnesses who had known the parties throughout most of their married life. To a person, these witnesses denied ever seeing the father hurt the mother or any indication in the mother that she was a victim of domestic violence.
The nature of domestic violence means that it is often accompanied by shame and victims can take a long time to gain the courage to seek assistance. Abusers are often dominating and the victim does not have the strength to, in effect, stand up to them. Thus the absence of complaint by the mother to neighbours and friends does not undermine the veracity of her testimony. Although the mother did not complain to the father’s family and neighbours, she did complain to the police and on New Years Eve 1993 called police to her home. Apparently, the SWAT team arrived and the father was removed from the home. The mother agreed that on 4 January 1993 she completed a statutory declaration[21] retracting her allegations. The father has subsequently pursued complaints about the police response. Allegations of violence that are subsequently retracted are also a common occurrence even where the allegations are properly made since. Factual issues such as this are difficult to adjudicate. That is because there are often no witnesses who can corroborate an allegation or its denial. Courts frequently accept the uncorroborated testimony of victims of family violence or statements attributed to children relating to child abuse, relying to no small degree on the integrity of the witness. It is reasonable and necessary that they are prepared to do so. I have no doubt that the mother believes that she was the subservient partner in an emotionally and at times physically abusive relationship. On occasion she sought help from police, women’s refuges and through counselling about it. I accept that her complaint of domestic violence on New Years Eve and that the father intimidated her at other times. As to other generalised allegations of violence they were too vague for me to conclude in the mother’s favour or otherwise. The relevance of this behaviour is not the role model argument that the mother makes because other than the incident at contact changeover on 15 June 2001 there have been no incidents of violent behaviour since separation. However, the father’s behaviour towards the mother after separation has been harassing and I accept the mother’s evidence that she has given in to the father’s pressure and demands time and again because she was afraid to resist him. In particular twice conceding residence and also agreeing to notations in orders that were unnecessary.
[21] Exhibit T
The father also claimed that the mother was occasionally violent to him, producing a photograph of her sitting on his lap with her hand to his face, as though she had slapped him. He appears amused. I do not accept that the father was a victim of family violence.
Prior to separation the father complains that the mother hit AH twice and hence there is a risk that she will physically abuse the children. When SH was a toddler she fell into the water and was resuscitated by her father. At the time she was in her mother’s care. The mother believes that the father may have been responsible for pulling clumps of AH’s hair out and involved in giving her two black eyes. Her hair did come out in clumps and she did have two black eyes while in her father’s care. I accept the father’s explanation that AH fell out of bed and that her hair fell out naturally. I accept the mother’s explanation that she took her eyes off SH for a moment and the child fell into the water. These events are old and have virtually no nexus to the parties’ capacity to care for the children now. Even if the mother did smack AH years ago, I do not accept that there is an unacceptable risk that she may be physically abused in her mother’s care. Indeed, I am persuaded that there is virtually no risk that either parent would harm the children. Or allow them to be harmed.
The practical difficulty and expense associated with contact
At separation the wife left the region where she lived. Eventually she moved to where she is now. Since separation she has been virtually entirely responsible for any of the real effort associated with travel for contact. The mother proposes an outcome that has both parties sharing the travel, irrespective of with whom the children live with. The father drives a 1988 car, which he says is unreliable and sufficient only for driving in his local community. The approach taken to contact travel by the father reflects a belief that as the mother moved away from Empire Bay that it is her responsibility to do it. Although when she first separated there is no evidence that the mother anticipated that the father would conduct his background checks and snoop into virtually every relationship as well as her living circumstances, it is now clear that he is relentless in his pursuit of information concerning her. With hindsight it is clear that if the mother wished to have any reasonable privacy from the father she cannot live in the same community that he does. For the future, whether or not the children live with her, it is untenable for the mother to live nearby. Living away means that impromptu sighting can be avoided. Otherwise, there is a great risk that the father would misconstrue informal friendships the mother may have. Pursuing this by questioning the children will almost certainly follow something that places the children under inappropriate pressure. A degree of distance between the two homes is desirable even though it means that the children and both parents must travel for contact.
In addition to other evidence the court received a travel mate map which sets out the distances between the two places of travel.[22] They are about 88 kilometres apart by road. The father provided a local bus time table[23], the relevance of which was to confirm the father’s evidence there is only a limited number of buses that travel between the areas. The mother had suggested that if the father’s car was too unreliable to travel to her area or meet her half way, the father could make the journey using public transport. Such mid way points are on the main northern line and there are regular commuter and suburban trains travelling along it. By car the trip from her to a mid way point is about 20 minutes, no more than 30 minutes in traffic. I formed the strong impression when the father was dealing with the issue of transport that he is determined to place as many obstacles in the way of doing any of the travel beyond his area and that his evidence was tailored to ensure this outcome. Although his car is old and the drive to one of the Railway Stations is uphill, even with an unreliable radiator, his car can make it there and cool down if necessary for the downhill return trip. I am satisfied that the situation is similar in relation to other near mid-way points.
[22] Exhibit C
[23] Exhibit U
Since separation the mother has undertaken virtually all of the travel in relation to contact. Now that she has a new baby to consider the mother must either leave GD behind while she does the two - three hour round journey at the beginning or end of conduct or take him with her. Requiring a new baby to regularly make the round trip is unreasonable as is requiring the mother to routinely leave GD behind so that she can do all the travel associated with contact.
I accept the children’s representative’s proposal requiring the father to share the transporting for contact is appropriate. It sends a strong message to both children that the father values their relationship with their mother. Because this is otherwise clouded with ambiguity, it is a particularly important message for them to have. The father repeatedly asserted that mid week contact, if the children live with their mother would be impossible for him to have. I do not accept his evidence. Partly it was predicated upon health issues and partly transport issues. When addressing this issue the father’s protestations about his good health seemed somewhat at odds with the limitations upon him using public transport. I accept that he has difficulty sitting for long periods. I do not accept that travelling by bus, or car, between his home and a mid-way point would put his back under strain. On the train, he can stand from time to time and relieve pressure on his lower back. Because he does not work, the father has the available time that would enable him to take his time travelling and could spend the afternoon with the children before making the return journey. Whether by car or public transport the father can contribute to the travel effort.
In future, both parties must make an effort with travel and share approximately equally the costs associated with it. Presently, both parties receive social security benefits and I infer that for so long as they do so they are entitled to concession travel on the State Rail and bus system. Thus the costs of contact, even given their limited income, are not significant.
Capacity to meet the children’s needs
Both parents are ambitious that the children succeed educationally and socially. Both children are settled at school and achieving in accordance with her chronological age. SH is posed to change schools and AH is at an age where changing schools is unlikely to affect her educational progress. Both parties impressed as intelligent people and whether in their mother or father’s care both will ensure that they receive a well-rounded and appropriate education. The father says the mother is untested in this regard and that she is likely to be disinterested or diligent in ensuring the children attend to homework. For example she thought that SH had too much homework in third class and wrote to her teacher but did not follow this up. He gave other examples. During contact the mother includes activities that are educational and has helped SH with maths and reads to AH. I was left in no doubt that she has the ability and will ensure the children school work is supplemented at home and that they will do homework and have their mother'’ input when doing so.
An important part of the father’s case is that the mother used illegal drugs while they were together. Based primarily on the an observation that she was sniffing, at a time when AH reported that her mother was taking antibiotics for a cold, and her husky voice the father alleges that she is still using drugs, probably cocaine. I accept the mother’s denial that since separation she has not used drugs. She is settled, has had a pregnancy that went full term, has worked and reliably collected and returned the children to their father for four years. In the witness box she presented as healthy. The whole of the circumstances persuade me that irrespective of the situation prior to separation the mother does not currently use drug and has not done so for years. There is always a risk that a person who has previously used drugs may do so again. Here the risk that the mother may do so is extremely remote.
Although the father cross-examined the mother vigorously about this issue he strenuously objected when the children’s representative started to cross-examine him about his drug history. He said it was irrelevant. When the issue was pursued the father conceded that he had been indicted in the Sydney District Court on a drug charge in 1992. In the District Court a jury was satisfied that a charge of possessing cocaine was proved. The NSW Police court history convictions[24] record that he was indicted for “possess trafficable quantity prohibited import”. Although probably charged with this offence, the record of conviction shows that he was found guilty of a lesser charge of possession and released on a three years good behaviour bond. There is no evidence that suggests the father uses drugs or has drugs in his possession. Thus I am satisfied that whether the children live with their mother or with their father the risk that they may exposed to drug taking or a drug milieu is virtually non-existent. Whatever the past may have been it relation to drugs, it is no longer a part of their lives.
The attitude to the children and the responsibilities of parenting
[24] Exhibit M
Both parties have a deep desire to be competent parents and are committed to their children's success. The extent of any deficiencies is already identified and does not need restating. It is unfortunate that the parents have been unable to achieve a compatible approach to parenting. The benefits to the children are obvious. Indeed their own lives would be easier. The father could stop his daily diary keeping and the parties could problem solve parenting issues together. Both parents need to try and recover a relationship that might allow them to trust each other as parents again. Were they ever able to do so, they and the children would reap enormous benefits. It is their responsibility as parents to try.
The father chose, as he was entitled to do, to be interviewed by Ms F without a joint interview with the mother. In itself this is unremarkable. However, the father explained, “The disdain I have for her, for the way she has put the children in danger, I do not want to be in the same room as her”. This attitude permeates the father’s attitude towards the mother and her parenting. His disdain for her was apparent throughout the proceedings and it is unlikely that the children are unaware of his attitudes towards their mother. In my opinion the father fails to understand his responsibility as a parent in behaving this way. Regrettably this attitude has influenced his behaviour toward the mother and her involvement in the children’s lives in inappropriate ways. He has not involved her in a consultative way in relation to the children’s education. Even if she has made off-the-cuff remarks that she may disappear with the children, he ought to have allowed her to take the children to see her family during school holidays. She has had the opportunity to run away with the children for years but other than the incident immediately at separation when she took the children into a refuge has not done so. In too many instances the father suspends judgment and opportunistically relies on off-the-cuff remarks in order to justify his unreasonable stance. His claims that the mother is a flight risk have not had proper foundation for a long time. He refuses to discuss parenting issues with her and insists that she communicate matters concerning the children in writing. He has made major decisions concerning SH’s education, both children’s religious education and sports without first raising the issues with the mother. She is an intelligent person whose input should have been invited. When he decided to exclude her the father demonstrated poor judgment.
The father complained that the mother did not pay adequate child support. Although a significant issue for him I was not provided with sufficient evidence that the mother’s payment of child support was inadequate by reference to her income. These parents have both had a difficult time financially since separation. The mother’s small business failed and the administrative assessments that have issued appear to reflect her capacity to pay child support. I have no doubt the father needed every cent from her in order to provide for the children. Given her apparently modest income she appears to have paid what she could reasonably afford. This is not a case where I am persuaded I should conclude that the provision of child support by the non-residence parent is so inadequate that it demonstrates a poor attitude to the responsibility of parenting.
The father also complains that the mother has persistently failed to participate in the children’s school and sports lives and that time and again she has demonstrated disinterest in their achievements. For example he said that she failed to attend Little Athletics meets.
I accept the mother’s evidence that the father told her she was not entitled to attend because he paid for the uniforms. Her decision to stay away rather than provoke the scene he threatened he would make reflects favourably on her attitude as a parent. Behaving as he did the father demonstrated an inadequate understanding of his responsibility to promote the children’s relationship with the mother. Responsible to take SH to school on a couple of occasions before separation, the mother arrived late. The father said the mother’s late arrival reflected her disorganisation and a general lack of parental responsibility. The same criticism was levelled when she arrived late for SH’s student-led conference in June 2003. Because the mother arrived at 12.30 rather than 12 noon SH feared that her mother had forgotten and burst into tears when she walked into the room. The mother explained to SH “I’m pregnant, remember. I can’t remember anything correctly. ND said noon and I told him he was wrong.” The father blew this incident out of reasonable proportion. The mother and child dealt with this to SH’s satisfaction at the time. That the mother has been late to school events from time to time does not mean that she is unable to
Issues of finality
This is an important issue for this family. Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospects of further disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties and children moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. To the extent possible I am satisfied the court should make orders that will be least likely to involved these parties and the children in future litigation.
This is the third occasion upon which the parties have dealt with parenting issues. The toll that this has taken on all members of the family is manifest. Both children are acutely aware of these proceedings and AH has found participating in both family report processes distressing. The father’s approach to evidence gathering is unnecessarily intrusive of the mother’s privacy. The father’s questioning of the children viz contact with the mother is inappropriate and potentially may harm their relationship with either or both parents because the children may come to appreciate that the questioning underscores his hostile attitude towards their relationship with their mother. With the mother, if the children absorb from his questioning the underlying message that their mother has neglected them and they are at risk with her.
SH has strongly held wishes to live with her mother which wishes will endure and strengthen with time. There is a very high probability that unless a residence order is made in the mother’s favour, there will be further proceedings between the party concerning the children. There is a commensurate risk that this will increasingly destabilise those children. In the context of this family this issue must be given significant weight.
Conclusion
SH has recently turned 12 years old. She has expressed a strong wish to live with her mother since 2000. She has reached a time in her life where her personal circumstances, particularly finishing primary school, create an opportune time with which to give effect to her long and strongly held wishes. SH also strongly wished to live with her younger sister. Nothing in the evidence suggests that these sisters contemplate or would benefit from being separated from each other.
I am strongly of the opinion that separating the sisters would be devastating for them and inject an intolerable degree of long-term distress in their lives. While AH also wishes to live with her mother, her wishes are not as strongly formed and her limited understanding of the nuances of her parent’s competing proposals means that her wishes must be treated cautiously. Compared to other matters relevant to her long term welfare they are not so significant. Particularly the prospect that she may be separated from her sister.
Counterbalanced against giving effect to SH’s wishes, is the effect on changing a life long status quo whereby the children have lived with their father all of their lives. He has given his all in order to provide for their needs. They love their father and are dearly loved in return. This is a very weighty consideration. In her father’s care SH and AH have developed and maintained their relationship with their mother. He has complied with contact orders and it has routinely occurred over the years since separation. In this sense he has actively promoted the children’s relationship with her. In his care SH has achieved well academically and both children appear socially adept. The father pressed the court to emphasise the status quo in its deliberations and balance the children’s wishes such that the status quo prevailed. It was submitted that in the mother’s care there are significant risks that the children’s physical, emotional and intellectual needs will not be met. The risk of exposure to family violence, an unstable home life, exposure to drug abuse and child sexual abuse it was claimed is an unacceptable risk. Having regard to all of the evidence relied upon by the he did not make out his claims. The evidence adduced by the father does not lead me to conclude that in the mother’s care the children’s physical; emotional and intellectual needs would not be met. To the contrary, I am satisfied that in the mother’s care these needs will be well met.
The children’s desire to live with their mother is not based on rejection of their father, but rather a positive pull to live together with her. Both desire a relationship with both of their parents and their long term well being requires that they have regular contact to him. The combined effect of the orders that will be made, my satisfaction that the mother will comply with the contact orders as well as SH’s insistence that she continue contact with her father, mean that it is highly probable that contact between the children and the father will continue at least with the frequency ordered by the court. In those circumstances the children’s relationship with their father will almost certainly continue to be as strong as it currently is.
I am satisfied that I should give effect to the court counsellor F’s recommendation. The rationale for her opinion is strongly supported by the evidence as it developed in this hearing. With respect I accept the gravamen of the child representative’s submission as to why the court would order a change in residence. Doing so reflects my opinion that the critical factors that must carry the strongest weight are SH’s wishes, the sister’s strong relationship with each other and the potentially damaging consequences if they are separated, my strong satisfaction that the mother will competently meet the children’s emotional, physical (including safety) and intellectual needs. I am confident that regular contact will take place and that changing residence will not damage the children’s relationship with their father. During contact he will be able to maintain the children’s relationship in his community and with his family. I am concerned that the children’s father appears to have come to believe that the mother presents a grave risk to the children. He has the intelligence but not emotional will to re-evaluate his beliefs by reference to the evidence. Evidence not suspicions or rumour. Potentially his attitudes place the children’s relationship with their mother and her family under pressure. There is a real risk that he will wear the children and her down, eventually to such an extent that the children may find it too burdensome to keep their strong relationships with both parents going. There is no such risk if the children live with their mother. While a long standing prime caring relationship and hence status quo is important and must carry real weight, in this particular case the factors identified above together require greater emphasis.
This family needs finality surrounding the issue of the children’s residence. In one sense parenting orders are never final. For this family the reality is that unless SH’s wishes are given effect to it is almost certain further litigation concerning this issue lies ahead. That is not in either child’s best interests. An order that the children live with the mother reduces the risk of future litigation. Although not as significant a factor as SH’s wishes and the need for the children to live together, I give this factor weight.
These proceedings have taken place during the latter part of the final term of the school year. This is an exciting time for children as they wind up a year’s education and achievement. The court counsellor pressed that the order for residence be given effect to at the end of this school year. She emphasised that the completion of primary school is a particularly important time and that SH should have the opportunity to participate in the end of primary school rituals. I agree with her. The children’s representative made submissions consistent with the evidence given by the court counsellor. However, counsel for the children’s representative cautioned that a decision in favour of the mother made before the end of the school year, may result in SH being put under considerable pressure by the father. Basically, that he will try to talk her out of her decision to live with the mother and in his own disappointment at the outcome, involve both children in an emotionally distressing time. However the father said that he would easily manage to maintain a reasonable equilibrium in his home if the outcome of these proceedings resulted in a change of residence. Although he has previously involved SH in the proceedings he says he will not do so again. There is a risk that his resolve may fail him and that this may happen. However I assess it to be small risk. I am satisfied that the father, to the best of his ability, will mask his grief and manage the weeks that lie ahead prior to the residence order being given effect to, without overburdening either child with his own disappointment.
I also take into account the father’s indication that if unsuccessful he would appeal my decision. I felt it important that if possible appeal issues should be completed before the start of the new academic year. From the children’s perspective it is preferable that they are able to start school next year confident that they may settle in. If possible I think it is desirable that both children can avoid changing schools after the new school year has started.
Finally, there is the structure of the orders for contact and parenting. There is a need for orders for contact to be made in the father’s favour. The father and children must have contact and the parents in particular need a structure for it. AH structure that they both must adhere to. The mother emphasised that SH is reaching an age where she will establish her own social life. Thus it was submitted, she will need the opportunity to enjoy her social life and the court must balance the child’s developing independence with the need to nurture the child’s relation with her parents. Even though SH may wish to have time with new friends she will establish in her mother’s care, she is not yet at an age where regular alternate weekend contact with her father, spent in the company of her sister, should be reduced. On occasions Friday night contact may be difficult to implement because the children are at Little Athletics. In which case contact will start Saturday mornings. Little Athletics season is about seven month’s duration. For The balance of the period contact will be for two nights.
As both parties are unrepresented I feel I need to say that no two parenting cases are identical. The court is charged with responsibility for delivering individual justice. In parenting cases, this also requires that the court ensure that the children’s interests are paramount. In many cases courts emphasise continued parenting arrangements established prior to separation. In many cases future risk is determined giving great weight to events that occurred prior to separation. However, when separation occurred many years ago those events may not have continuing significance. That is the situation in this case. The children are considerably older than they were at separation; the mother is settled with a new family and is in a position to meet the children’s future needs.
Although it will be difficult for them, I have ordered the parties to attend counselling. My intention is that they try and find a way to communicate in the future. This will start after the orders have been implemented and high emotion settled to an extent.
I have carefully considered all of the evidence adduced in these proceedings. However I determined that not every factual disagreement required inclusion in these reasons. That is because the issue was too remote or because the evidence was not persuasive of the fact I was asked to find.
For these reasons I am satisfied the orders identified at the commencement of these reasons for judgment are in the children’s best interests.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 20 November 2003
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