KJL & ISC
[2005] FMCAfam 509
•29 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KJL & ISC | [2005] FMCAfam 509 |
| FAMILY LAW – Parenting – competing residence applications – both parties had periods of residence after separation – mother on temporary visa – child aged 6. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 R and R (2000) FLC 93-000 |
| Applicant: | KJL |
| Respondent: | ISC |
| File Number: | PAM 3092 of 2002 |
| Judgment of: | Sexton FM |
| Hearing dates: | 1, 2, 3 August, 1 & 15 September 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 29 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Ms A Gibbons |
| Solicitors for the Respondent: | Greenfield Lawyers |
| Counsel for the Child Representative: | Mr D Dura |
| Solicitors for the Child Representative: | Levy Partners |
ORDERS
That all previous parenting orders be discharged.
That the child BC born 16 April 1999 [“BC”] live with the father.
That BC have contact with the mother as follows:
(a)From 9.00a.m. until 5.00p.m. on Saturday 1 October 2005 and Saturday 8 October 2005.
(b)From 9.00a.m. until 5.00p.m. on Saturday 15th October and Sunday 16th October 2005.
(c)From 9.00a.m. until 5.00p.m. on Saturday 29th October and Sunday 30th October 2005.
(d)
From 9.00a.m. Saturday until 9.00a.m. Sunday commencing
12 November 2005 and on each alternate weekend until the end of Term 4, 2005.
(e)
For 3 periods of 3 days and 2 nights during the Christmas school holidays in 2005/6 at times to be agreed between the parties, and failing agreement by the last day of Term 4, from 9.00a.m. on Thursday 29 December 2005 until 5.00p.m on Saturday
31 December 2005, from 9.00a.m. on Thursday 12 January 2006 until 5.00p.m. on Saturday 14 January 2006 and from 9.00a.m. on Sunday 22 January 2006 until 5.00p.m. on Tuesday 24 January 2006.
(f)From after school Friday until 5.00p.m. Sunday each alternate weekend starting on the first weekend of first term in 2006 provided that in the event BC is not attending school on a contact Friday, contact shall start at 5.00p.m. on the Friday and changeover shall occur in accordance with order (4) and the father shall notify the mother of such arrangement as soon as practicable.
(g)For a period of 4 days and 3 nights in the second week of the first term school holidays in 2006 at times to be agreed between the parties, and failing agreement by the last day of Term 1, 2006, from 9.00a.m. on the second Monday of the school holidays until 5.00p.m. on the second Thursday of the school holidays.
(h)From the school holidays at the end of Term 2 in 2006, for one half of all school holiday periods, being the second half unless otherwise agreed between the parties starting at 5.00p.m. on the second Saturday of the holidays for the short school holiday periods and ending on the last Sunday at 5.00p.m and starting at 5.00p.m. on day 20 of the Christmas school holidays (Day 1 being the first full day of the holidays) and ending on the last Sunday of the school holidays at 5.00p.m.
(i)From 3.00p.m. Christmas Eve until 3.00p.m. Christmas Day in 2005 and each alternate year thereafter and from 3.00p.m. Christmas Day until 5.00p.m. Boxing Day in 2006 and each alternate year thereafter.
(j)For Soul, Korean New Year celebrations, from 2007 and each alternate year thereafter.
(k)For Chusok, the Korean harvest festival, from 2006 and each alternate year thereafter.
(l)At additional or alternate times as agreed between the parties.
For the purpose of contact changeover when such changeover does not occur at BC’s school, the father shall arrange for BC to be delivered to the mother at McDonald’s LC at the start of contact and the mother shall return BC to the father at McDonald’s LC at the end of contact.
In the event Father’s Day falls on a contact weekend, then the child shall return to the father at 9.00a.m. on Father’s Day.
In the event Mother’s Day falls on a non-contact weekend, then the child shall have contact with the mother from 9.00a.m. until 5.00p.m. on Mother’s Day.
In the event BC has contact with the mother during the first half of any Christmas school holiday period, BC shall live with the father from Christmas Day at 3.00p.m. until 5.00p.m. Boxing Day in 2005 and alternate years thereafter and from 3.00p.m. Christmas Eve until 3.00p.m. Christmas Day in 2006 and alternate years thereafter.
That BC have reasonable telephone contact with the parent with whom he is not residing, such telephone contact to be facilitated by the resident parent in private.
That both parties will ensure that the other party is kept informed of:
(a)Any significant medical event involving BC, whether illness or accident, including details of diagnosis, treatment and any medication prescribed.
(b)Any progress or disciplinary reports from the school concerning BC.
(c)All special events in which BC is involved.
(d)Any other matter of significance relevant to BC’s welfare.
That BC remain at LC Public School for the remainder of his primary education unless otherwise agreed in writing between the parties.
That all weekend contact be suspended during school holiday periods and start again on the first weekend of each school term.
That the mother and father in consultation with each other have responsibility for making decisions for the long term care welfare and development of BC.
That each party have responsibility for the day to day care welfare and development of BC while in that party’s care.
That the mother return to the father within 7 days:
(a)Any passport in BC’s name, held by her;
(b)The record of BC’s immunisations and medical history from the Hospital where BC was born.
That each party be restrained from speaking or permitting any other person to speak to or about the other party or member of their household or family in a negative, offensive or unpleasant fashion in the hearing of BC.
That each party advise the other and keep the other advised of their current street address and contact telephone numbers, both landline and mobile, and advise the other party of any changes in those details within 3 days of any such change occurring.
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 child BC born 16 April 1999 from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child 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 child’s names 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 child 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 pursuant to section 65DA(2), 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 calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
That all existing applications be otherwise dismissed and the matter be removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3092 of 2002
| kjl |
Applicant
And
| isc |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns a child BC, aged 6. His parents are in dispute about with whom BC should live. BC has lived with each parent at different times since separation, most recently with his father. Both parties agree BC should spend time with the other parent, the amount of time proposed having increased significantly over the course of the hearing. The case was particularly difficult because both parties required the assistance of a Korean interpreter and at times I had concerns as to whether the parties fully understood what was being asked of them.
The mother returned to Korea in April 2003 with BC, with the consent of the father, but shortly afterwards the mother was sentenced to prison in Korea for 12 months for “bearing false witness”. BC lived with the mother’s relatives until the father collected him from Korea in December 2003, supported by an order of this court. BC has lived with his father since then. The mother returned to Sydney a year ago and started proceedings for BC to live with her.
The mother has had two previous marriages. She has 3 children from her second marriage, DAY 15, JRY 12 and JSE nearly 10. DAY has autism and attends a special school. These children lived with their father and his family in Korea after their parents’ separation in 1997 until arriving in Australia a year ago to live with their mother. The mother came to Australia in March 1998 “because I was bankrupt.” The father of those children moved to Australia at the beginning of this year and the mother has reconciled with him. It is not known whether the mother, her first 3 children or their father will be permitted by the Immigration authorities to remain living here. The father has three adult sons from his first marriage, all of whom are established in their chosen careers in Australia, though one is working temporarily in Korea.
BC did not see his mother from July 2003 until September 2004 apart from when he visited her in prison in Korea in the early months of her sentence. As ordered by the court, BC started seeing his mother on a supervised basis for very limited periods about 12 months ago. In early August 2005 the contact periods increased. By the time the hearing resumed in September, BC was seeing his mother for a whole day once a week.
The mother is 45 and the father 61. Both are Korean. The father migrated to Australia in 1988 and is an Australian citizen. The mother first came to Australia in March 1998, returned to Korea in 2003 and is now living in Australia on a visitor’s visa. The parties married in Australia on 29 August 1998 and separated 4 years later when BC was 3.
Neither party trusts the other and BC is aware of the high level of conflict between his parents. Mr Hawthorne, the family reporter, said in his report dated 30 June 2005:
“both parents, but especially Mr ISC, seem unable or unwilling to protect their son from the interparental conflict over his residence. BC’s quiet, timid manner may well reflect in part his awareness of being caught between his two parents and his clearly expressed fear of offending his father. BC is keenly aware that his father does not want him to have anything to do with his mother. It would not surprise if Mr ISC had in fact voiced this to his son, as he appears to lack insight into the potential impact on BC of his antagonism towards, and denigration of, Ms KJL.”
The court must decide what orders best promote BC’s welfare by answering these questions:
a)What are BC’s wishes and how much importance should the court give those wishes?
b)What is the nature of the relationship between BC and each parent and other people in his life?
c)What is the likely effect of any changes in BC’s circumstances?
d)What is the capacity of each parent to provide for BC’s needs?
e)Does BC have particular characteristics which are relevant?
f)Does BC need to be protected from psychological harm?
g)What attitude has each parent shown to the responsibilities of being a parent?
h)What parenting arrangements would minimise the risk of further court proceedings about BC?
What are BC’s wishes and how much importance should the court give those wishes?
The Full Court in H v W (1995) FLC 92-598 and in R and R (2000) FLC 93-000 said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The mother reported BC saying to her on a number of contact occasions “I want to live with you”. The mother said she reassured BC he would be living with her and she would teach him to use the computer and play the piano. She agreed she told BC during interviews for the family report that he would be living with her in two months time and would play piano and soccer.
However, BC was observed to behave on contact visits as though he wanted nothing to do with the mother. The mother’s partner observed BC’s reticence with the mother and said he was looking around frequently for his father. Mr HUU, a Minister of the Cho-Dae Church of Christ, was present during contact between BC and his mother after September 2004. He observed “on many occasions that BC tries to run away from Ms KJL and screams at her when he sees that Ms KJL tries to get close to him. As a result of this I have observed on many occasions that the present contact does not last for more than 10-20 minutes on each occasion.” The father deposed to the contact only lasting 10 or 20 minutes because BC would not let the mother close to him. He said BC would come to him in the prayer meeting during contact periods and hide under the prayer bench. The father said BC explained his conduct with these words:
She is the one who screamed at us when we went to visit her in the prison in Korea.
She put me in that tiny house in Korea with the Granny who was always drinking while she was in the prison.
The father deposed to asking BC what would happen if BC had to leave him to live with the mother and to BC shaking and crying with these words:
No, no, don’t let her take me away from you. I don’t want to live with her.
Mr Hawthorne said BC knew his parents were fighting over him and that neither trusted the other or wanted BC to have anything to do with the other. I am critical of both parties for involving BC inappropriately in these proceedings. In these circumstances and given BC’s young age, I have given very little weight to BC’s expressed wishes.
What is the nature of the relationship between BC and each parent and other people in his life?
Mr Hawthorne described BC’s interaction with his father in June 2005 as appearing “natural and warm, symptomatic of a bond between the two of them.” He said the father seemed to place limits on BC’s behaviour and BC appeared willing to accept those limits. Mr Hawthorne said “[BC] clearly enjoyed his father’s company and seemed at ease with him.”
Mr Hawthorne twice observed BC with his mother. He said “Ms KJL displayed no warmth or affection towards the child, remaining a seated spectator of his play.” He observed BC sat with his back to his mother for much of the time during their session together. “He played alone as she sat on a small chair, and their interaction lacked any warmth.” Mr Hawthorne found the mother lacked capacity to engage with BC and lacked insight into the potential harm of denigrating the father to BC.
In Mr Hawthorne’s opinion BC appears to be more closely attached to his father and the father has a healthier interaction with BC than the mother. He did however find indications that BC’s relationship with his father generates anxiety for BC which is a problem. He said the father is unable to enter BC’s emotional world, exemplified by the father’s inability or refusal to give BC permission to interact with his mother without feeling guilty for being disloyal to him. Mr Hawthorne thought it possible the father’s fear the mother will take BC to Korea has led to his anxiety and high level of hostility towards her.
In response to questions from the mother’s counsel, Mr Hawthorne agreed that when he prepared the report in 2003, he observed BC was attached to his mother. He observed at that time that “BC seemed attached to both his parents, but certainly looked to his mother as a source of security when he faced a strange situation.” Mr Hawthorne said relationships are never frozen in time and the situation was very different in June 2005. Mr Hawthorne questioned the mother’s capacity to develop warmth in her relationship with BC and her preparedness to allow BC to enjoy the experience of his father in his life.
Neither party regarded BC’s relationship with the other as having any positive value for BC. The mother believes BC does not love his father and has not developed a close relationship with him. She believes the father “smashed his toys” and “threw away the clothes [she] bought for him.” The father told Mr Hawthorne he did not believe the mother loved BC nor did he believe the mother was capable of raising BC in a normal way. He told Mr Hawthorne any contact between BC and the mother should be supervised. In cross- examination the mother said that when she first saw BC for contact in September last year he cried and tried to get away from her. She was unable to comfort him as he looked frightened. She said however, that in the few weeks before hearing, BC was relaxed with her on contact visits and enjoyed spending time with her, her partner and his three half-siblings.
BC has been gradually getting to know his mother’s other three children and her second husband with whom the mother now lives. The mother took the children on some of her contact visits with BC between September 2004 and July 2005 and since August they have always been present during contact. BC had not met his half-siblings before. The mother’s partner said BC appeared to be enjoying the contact visit at McDonalds before the hearing. When observed with his three half-siblings, Mr Hawthorne said after a tentative start, BC played happily with his half-brother and sister and showed no adverse reaction to DAY who played close by.
BC met the mother’s partner at the family report interview and BC has seen him on contact since then.
Mr Hawthorne observed the mother’s partner playing happily with BC at interview and had no concerns about the mother’s partner’s capacity to relate to BC. The mother’s partner and the mother observed BC playing and interacting well with his three step-siblings. During contact on 3 July 2005 the mother said BC asked why JRY hadn’t come with her. He said “I like to play with JRY. He’s fun.” The mother took all 3 children for the next 3 visits and watched all the children play happily together. Mr Hawthorne was not at all surprised BC was enjoying contact with his mother while others were present.
It was submitted by the mother’s counsel that the court should not focus on the content of the family report prepared by Mr Hawthorne in June 2005 because since then BC has become re-acquainted with the mother. Mr Foster submitted that Mr Hawthorne’s observations were outdated. I do not accept counsel’s submission. While it is a fact that BC has spent more time with the mother since Mr Hawthorne made his observations and I am satisfied that BC has enjoyed contact with his mother, step-father and half-siblings, I do not conclude that there has been a fundamental change in the nature of BC’s relationship with his mother.
The father has three adult sons who have had regular contact with BC. The father describes BC as being very close to his son DI and his wife who often take BC for picnics, bike riding, to the museum or other activities. DI deposed to him and his wife loving BC as a son and having a meal with him and his father at least weekly. He said BC was also close to his wife’s nieces and nephews who are aged between 5 and 8 years. In the hot weather the children swim together in his back-yard swimming pool. The father has a brother and family living close by who are very close to BC and see him frequently.
I accept Mr Hawthorne’s evidence that BC has a closer relationship with his father than with his mother. I also accept his evidence that BC should have the chance to see whether his mother is able to develop a bond with him and that BC would have more normality if he were able to interact with his siblings and his stepfather.
What is the likely effect of any changes in BC’s circumstances?
This is a significant issue in this case. The mother’s future migration status in Australia is uncertain. She is currently on a visitor’s visa and may have to return to Korea as early as July 2006. Her original application for permanent residence based on her marriage to BC’s father was refused in July 2001 because her Korean national police certificate showed she was wanted by police for ‘bearing false witness’ from 1999 and for counterfeiting bills/drafts from 1998. In cross-examination the mother was unable to tell the court her understanding of the reasons her application was refused. The mother obtained bridging visas until 26 April 2003 when she left Australia. The mother has another application before the Federal Magistrates Court listed for hearing in July 2006. The mother’s second husband and their three children are in Australia on student visas. Their visas expire in March 2006 though may be extended. It is conceded by the mother that she may have to return to Korea. The mother said if she returned to Korea, her family would return with her and she would want BC to be with them. The mother’s partner said the whole family would all return if the mother was not permitted to remain in Australia.
If BC were to live with her, the mother proposed moving BC from his present primary school to WP Primary School with his two younger step-siblings and to arranging piano lessons for him. She said she would care for BC full time outside school hours.
BC has lived with his father for the last 20 months and has attended LC Public since he started school. He regularly attends before and after school care and vacation care and I am satisfied has a close family network around him. BC is slowly being re-introduced to his mother and getting to know his half-siblings and their father. I am satisfied BC would face a significant adjustment if he were to be moved to live in his mother’s home.
What is the capacity of each parent to provide for BC’s needs?
There was no challenge to the fact that the mother cared for BC day to day until the parties separated in August 2002, while the father worked full time and again from August 2002 until November 2002 while living in a women’s refuge. In her oral evidence, the mother took some time to concede the father supported her and BC financially during their cohabitation, despite having no income of her own. The mother said the father sent her no money for BC once she returned to Korea. The mother tendered documents allegedly in support of her contention [Exhibits 3 and 5] that her sister lent her money but I was unable to make such a finding. I am satisfied the father supported BC and the mother during the course of their marriage and during the period the parties lived together, though separated. I am satisfied that the father has provided BC’s care and financial support since BC’s return to the father in December 2003, without assistance from the mother.
The father was cross-examined at some length about an incident in June 2004 when BC had an HIV test. The father said it was recommended by the teacher because there was concern a group of children may have accidentally been infected while playing with a condom in the school yard. The father said he took BC for regular medical checks with Dr Shin and recalled once taking him to a specialist. I am satisfied the father has provided BC with proper medical care.
The father has lived in the same 3 bedroom rented premises since February 2004. It has a back garden in which BC can ride his bicycle. They have mainly lived alone, though a female boarder and the father’s former girlfriend have lived with them for different periods. For 6 weeks from the end of July 2005, the father’s first wife and her mother lived with them. The father said if BC lives with him, he intends to move to rented premises much closer to the school so BC could get up later and walk to school if he was not enjoying before school care. He has already looked at alternative properties.
BC attends LC Public School where he is progressing well. BC participates in the church choir and attends Sunday school. The father described BC’s usual day: he is up by 6.00a.m., at before school care by about 7.00a.m. so the father can start work by 7.30a.m. The father usually works a 40 hour week including overtime, but has sometimes worked additional overtime. His usual routine has been to collect BC at 4.00p.m. Mondays, Wednesdays and Fridays and between 5.00p.m and 5.30p.m on Tuesdays and Thursdays. During the 6 weeks BC is on holidays and the father is working, BC attends holiday care and is involved in a range of activities and excursions organised by the holiday care staff. The father said BC enjoys the holiday activities and making friends. He said it has also helped his English. He agreed it would be ideal for him to be in a position to take and collect BC to and from school, but did not think it best for BC to live with the mother who would be available to supervise BC morning and afternoon. On the fourth day of hearing, the father said his work arrangements had changed and he would no longer be working any overtime so would always be available to collect BC at 4.00p.m.
The mother was critical of BC’s hygiene when he came to her home for contact. She bathed him, washed the clothes he was wearing and bought him new clothes and shoes. The mother was concerned the father has been leaving BC alone in the house while he’s been working. She reported the following comments from BC during contact visits:
I am alone at home when dad works at night.
During the holidays I was at home alone while dad worked. I had to feed myself.
The father raised concerns about what BC was given to eat on contact visits and that the clothes purchased by the mother were much too small. I found each party looked for faults in the other, incapable of complimenting the other in any way, perhaps believing such fault-finding would assist their case. I am not satisfied that either party has or would neglect BC’s day to day physical care.
The central question was each parent’s capacity to provide for BC’s emotional needs. Each party has made it clear to BC they have a low regard for the other parent and have encouraged him to adopt the same view. Neither saw anything positive in BC’s relationship with the other. Neither showed any insight into how these attitudes affected BC. I find it highly likely that both parties have denigrated the other to BC. BC reported to his father in late August “Mum told me not to live with you.” The mother reported that BC said to her “You are a bad woman.” The mother regarded her second husband as the appropriate father figure for BC, as did the mother’s partner who said “BC doesn’t need two fathers.” The mother said “If he lives with me and the other children, he may forget about his father, because he’s a child.” The father made plans in August for his first wife to live with him and “raise BC” though that arrangement broke down shortly afterwards. I am satisfied that both parties have failed to recognise the significant contribution the other parent can make to BC’s happiness and development. I have concerns that neither party will give BC emotional or psychological permission to love the other, or members of the other’s family.
The mother is living with her second husband and three children of that marriage in 3 bedroomed rented premises. If BC were to live with her, he would share a room with his 3 half-siblings. The mother said BC would attend the school attended by JSE and JRY and saw no difficulty for BC in moving schools. BC has experienced roller skating, soccer, piano and computer since sharing contact time with the mother and the other children. If BC were to live with the mother, she said he would have piano lessons. The mother predicted some initial difficulties if BC were to change residence, but believed he would settle in quickly.
Mr Hawthorne questioned how many of BC’s needs the mother could meet. He was not confident of the mother’s capacity to develop a warm relationship with BC. He was concerned when told that the mother’s partner said he could assume the father role. It was put to Mr Hawthorne that the mother was more available than the father to care for BC as she was not working during the day. Mr Hawthorne said it was not the time that mattered, but the quality of the interaction with the parent. However in his view BC deserves the chance to develop a relationship with his mother, to explore the possibility that a relationship will develop; his father has a responsibility to give him that chance.
Child’s maturity, sex and background and other relevant characteristics of the child
The father has a close association with the Korean community.
He was vice president of the Korean Society in Sydney around 1995 to 1997. He attends church every Sunday. BC attends Sunday school at the same church every Sunday. The mother, the mother’s partner and the children are all Korean. Although the mother said she was not involved in the Korean community, I am satisfied that in whichever household BC lives, he will be closely associated with Korean culture.
Does BC need to be protected from psychological harm?
I find that BC is well aware his parents are fighting with each other, do not respect each other and do not trust each other. I find BC sits uncomfortably in the middle of this interparental conflict. I am satisfied each party has exposed BC to their intensely negative feelings towards each other and attempted to align BC with them. Mr Hawthorne saw BC’s position in this conflict between his parents as the most significant issue in this case, more significant than the question of where BC should live. Such were Mr Hawthorne’s concerns that at the time of preparing his report, he thought it may be better, if BC were to live with his father, for there to be no contact with his mother to avoid BC being embroiled in the interparental conflict. Mr Hawthorne thought the risk of BC being caught in interparental conflict also existed if he lived with the mother, but in that situation he would have the input of the mother’s partner and it was more likely the mother would better support contact between BC and his father.
He said it was essential for BC’s future happiness that the parties learned to behave responsibly and immediately ceased their denigration of each other.
Despite their denials, I am satisfied each party is guilty of making inappropriate remarks and behaving inappropriately towards the other, with complete disregard to the impact of such conduct on BC. The father deposed to the mother during a contact visit, swearing and yelling at him in Korean in front of those present at the church prayer meeting using these words:
You don’t know what you are doing. And you don’t wish to know what I’m going to do to you. Do you know how easy it is to kill a person? It only costs $10,000.00 per head. You don’t want to win this game because by doing so you’re going to lose your life.”
BC reported to Mr Hawthorne that his mother had told his father that she wished he was dead. The mother was critical of the father in front of BC at interview such that BC “seemingly tried to block out her remarks by making a loud noise on the xylophone.” When told he was going to see his mother, BC told Mr Hawthorne that his father would not be happy and would not like him to spend time with his mother. On the second occasion, BC told Mr Hawthorne that his father had told him not to play with his mother.
The mother said BC made comments to her during contact periods to this effect:
If I like you, Dad says I’m a traitor.
Dad hit me for seeing you.
Dad tells me to ignore you.
Dad wants me to tell you that you should get back with him.
Dad said you took his money and that’s why he has no money and cannot afford to buy me anything.
Dad doesn’t like me to see you. He says you are a bad woman and that you killed someone and that’s why you were put in prison, but I want to see you, so please come next time. But you’d better leave now.
Dad smashed all the toys you gave me.
Dad won’t let me wear your clothes.
If I’m with you, Daddy doesn’t like it, so you’d better go away.
The mother also complained, and I accept, the father watched BC during his early periods of contact with her, inhibiting her attempts to re-establish some rapport with him. The father acknowledged telling the people at the church where contact took place, that the mother has a criminal and a mental problem.
Each party complained about the other’s behaviour during their periods of cohabitation. The mother said the father threw something at her head, causing her to seek medical treatment. At another time, she said the father kicked her to the side of the head. BC witnessed these incidents. The mother also complained about the father hitting BC on one occasion. The mother stayed several months in a women’s refuge after separation.
The father on the other hand deposed to the mother suffering mental instability between 1998 and 2000, complaining the tap water was poisoned and bad air was coming into the house. He said the mother received psychiatric treatment. The father said he took BC to visit the mother in prison when “she screamed and yelled at them”, an event still vivid and frightening in BC’s memory.
Mr Hawthorne expressed his concerns that neither party would give BC the sense he had approval to spend time with the other party. He believed it likely both would persist in these attitudes, which would leave BC in an unenviable position. I agree with Mr Hawthorne’s concerns. I find BC is at continuing risk of psychological harm in each party’s households.
What attitude has each parent shown to the responsibilities of being a parent?
Each party changed position as to how much contact the other parent should have with BC as the hearing proceeded. The father at first sought orders for BC to have overnight contact with the mother, and then sought orders for BC to have day time contact only. On the 4th day of the 5 day hearing, the father submitted it was best for BC to see his mother for only one day every second weekend. In his final submissions the father agreed with the child representative that BC should gradually increase his contact time with the mother until he was spending alternate weekends, half school holidays and alternate Wednesday nights with her. The mother said if BC lived with the father, she should have contact on one day each weekend. She said “this is the best time for his education” and gives him a routine. She was opposed to BC having overnight weekend contact during school terms. She wanted BC to have all school holidays with her on week days as she was not working. She was strongly opposed to contact on alternate weekends during school terms.
I find that at the beginning of the hearing, neither party accepted that BC should have regular contact with the other. However, as the hearing progressed (being 5 days over a period of 6 weeks) their stated positions changed. The father said he had been persuaded by the child representative that it was a good thing for BC to build a relationship with his mother, and he felt relieved by this. He said he would from now on encourage BC to enjoy contact times with the mother. He said he had been telling BC recently to enjoy his time with his mother. The mother was highly critical of the father’s parenting style. She said BC’s behaviour had deteriorated under his father’s care. She said BC used to be quiet, now he’s naughty; he swears at his brothers and disobeys rules. The mother was unable to think of anything positive to say about the father or his role in BC’s life.
I am not satisfied the stated changes in each party’s position at hearing reflected an honest change in each party’s attitude to the other party having contact; it may well have been these changes resulted from the litigation process.
The father had hoped to reconcile with the mother for BC’s sake and said he was disappointed when the mother reconciled with her second husband. However, he recognised the importance of being able to speak to the mother about how to improve things for BC.
He acknowledged the mother’s importance as BC’s natural mother. As he believed BC was not enjoying contact, he thought contact should be only gradually increased. I accept the father is convinced BC is wary of the mother and needs time to adjust to her and her family. I accept that the father is convinced the mother is not a good influence on BC. However, I am also satisfied that the father believes BC should have had the benefit of his mother in his life, had she behaved differently. I take into account the fact that the father consented to BC returning to Korea with the mother as a 3 year old.
The mother’s counsel submitted that the father had demonstrated his lack of parental responsibility in a number of instances: he required BC to rise very early each day to attend before school care; he required BC to attend vacation care rather than spend time with his mother who was available during holidays to care for BC; he failed to apply to the court for many weeks after discovering the mother was in prison in Korea and took months to collect BC from Korea; he permitted strangers to live in his home without regard to BC’s welfare.
I do not accept that the father has demonstrated a lack of parental responsibility by enrolling BC in before school care, after school care or holiday care. The father has a full time position as a pipe inspector. As a single parent, he has little choice but to make arrangements for BC outside school hours. There was no challenge to the father’s evidence that BC enjoys being with his friends at before and after school care and that he enjoys the activities at vacation care.
I found the father’s evidence about others living in his home confused and unsatisfactory. The evidence was not clear as to precisely when a boarder was in residence or when the father’s girlfriend was in residence. I accept that the presence of the father’s first wife and her mother from the end of July until early September would have been disruptive to BC. It may be the father believed his case would be stronger if a woman lived in his home and assisted with BC’s care.
I am not satisfied however, that the father put BC at risk in housing these other people.
I accept that the father took some weeks to apply to the court for an order for BC to live with him, after hearing the mother had been imprisoned in Korea. I do not accept the father delayed unduly before starting proceedings and I accepted his explanation for the delay in collecting BC from Korea.
The father alleged the mother had been irresponsible taking BC to Korea in 2003, with the knowledge she might be imprisoned. Counsel for both parties and counsel for the child representative spent considerable time in cross-examination of both parties on this issue.
I am satisfied the mother was aware there was a possibility she would be gaoled. The letter from the Australian Embassy in Seoul dated
27 February 2004 referred to the mother’s visit to the Embassy “early last year seeking our assistance in caring for BC, if you were to be arrested and sentenced in Korea and the likelihood of no suitable carer for BC if these events took place.” I am satisfied the mother reassured the father and the court in April 2003 that she would not be going to gaol and thus obtained the father’s consent to her leaving for Korea with BC on a temporary basis.
The father described BC’s living conditions in Korea when he collected him: a cold, dark, smoke-filled room with an 85 year old woman smoking heavily, his brother in law, his wife and daughter in residence with BC. He described unmade beds, dirty dishes, blankets rather than carpet on the floor. The father said BC rushed to hug him when he first heard his father’s voice and would not let him go. The mother denied the allegation that the premises were either small or filthy. However, the mother conceded she did not notify the father when she was imprisoned. She said she had no choice but to leave BC with her mother and family who BC barely knew, because “the father was living with another woman in Australia”. I find the mother acted irresponsibly in not advising the father immediately she was imprisoned so he could travel to Korea to collect BC. I am satisfied her conduct was consistent with her feelings of hostility towards the husband.
The mother regarded herself as significantly more important in BC’s life than the father. The mother said it was important a mother maintained an active role in a child’s life until at least 15 years. She conceded she had not maintained such a role in the lives of her other 3 children whom she did not see for 8 years. She blamed their father, but her evidence was contradicted by him. The mother’s partner said when the mother left in 1997 he did not expect her to return, consistent with Korean custom when a woman leaves. He had no contact with her between 1997 and 2003 when he met with her again in Korea.
The mother said her partner could play the role of BC’s father. She agreed that her partner was important in the lives of her other children. The mother’s partner agreed if BC lived with the mother, he would replace his father. The mother’s partner however, acknowledged that the father and BC would miss each other and should see each other. He said it was likely in time that BC would refer to him as “father”. The mother’s partner did not want to hear about the father, to meet him or talk to him or be involved with him in any way. He was not prepared to facilitate communication between the parties or facilitate contact between BC and his father.
Mr Hawthorne saw little evidence of either party accepting the importance of the other party playing a role in BC’s life. He was not optimistic about either changing their view though was encouraged by the change in the father’s attitude to BC’s contact with the mother, during the course of the hearing. I accept Mr Hawthorne’s evidence that BC is at risk of spending his life embroiled in his parent’s continuing conflict. Both parties must accept responsibility for the sadness and emotional damage this conflict is causing BC. I urge the parties to take note of Mr Hawthorne’s assessment that BC needs both parties to positively support his relationship with each of them or he will continue to suffer.
What parenting arrangements would minimise the risk of there being further court proceedings about BC?
Given each party’s attitude to BC having a relationship with the other, there will always be some potential for each party to contravene orders made for contact. However, with minor exceptions, each party has complied with orders made to date and I am satisfied both understand the possible ramifications of non-compliance. I do take into account the fact that the mother may have to leave Australia. If BC were living with her and this were to occur, I am satisfied there is a reasonable risk there would be further court proceedings about BC.
Conclusion
Mr Hawthorne has concerns about BC’s welfare whichever household he lives in. He said “this boy doesn’t face two very good choices.” He said both parents have limited capacity to contain their hostile emotions and prevent them from engulfing their child which “does not augur well for BC in the years ahead.” His overriding concern was that neither parent understands the importance of BC having both parents significantly in his life.
I accept Mr Hawthorne’s opinion that there is no good reason to move BC from his present situation with the father. Mr Hawthorne said if BC lived with his father, there should be day only contact for a period, graduating to limited overnight contact. He did not support the mother’s application for day only contact in term time moving to
5 consecutive nights in the school holidays. He said this would cause unnecessary strain on BC and the father. Mr Hawthorne saw no reason BC could not eventually spend overnight weekend contact with the mother and her family and some holiday time. He said BC should be given the chance to develop a bond with his mother. He said only time will tell whether the mother, her other children and their father will develop a relationship with BC, and he with them. In his view however, and I agree with him, neither parent should be marginalised given both have been resident parents in the past. I have made orders which provide for BC to gradually increase his time with his mother over a number of months. By second term next year, BC will be spending at least alternate weekends and half his school holidays with the mother. I have not made an order for mid-week contact as proposed by counsel for the child representative, given the mother’s position on the need for routine during school weeks.
If contact is progressing well, there is provision for the parties to agree on additional contact periods.
I am satisfied the Orders I have made are in BC’s best interests.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 29 September 2005
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