KS and SS
[2005] FMCAfam 17
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KS & SS | [2005] FMCAfam 17 |
| FAMILY LAW – Interim residence – child 13 – total breakdown in relationship with mother – father refuses to have child living with him. |
Family Law Act 1975
B & B Family Law Reform Act 1995 (1997) FLC 92-755
Cowling’s Case (1998) FLC 92-801
H v W (1995) FLC 92-598
| Applicant: | KS |
| Respondent: | SS |
| File No: | NCM 2725 of 2004 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Parramatta |
| Hearing date: | 25 January 2005 |
| Judgment of: | Sexton FM |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented. |
| Solicitors for the Respondent: | Harris Wheeler Lawyers |
| Counsel for the Child Representative: | Ms D Harris |
ORDERS UNTIL FURTHER ORDER:
That except as otherwise provided in these orders, the child CJS, born 18 November 1991, reside with Mr and Mrs B at Elermore Vale in the State of New South Wales during school terms from Monday before school until Friday after school each week.
In the event the placement referred to in Order (1) herein breaks down, the father or Ms KB to forthwith notify the Child Representative and the matter be re-listed before me on 48 hours notice.
That except as otherwise provided in these orders, CJS reside with the father:
(a)During school terms from after school Friday until before school Monday or Tuesday if Monday a public holiday.
(b)During the Easter holiday period.
(c)During all school holiday periods
and the father to collect and deliver CJS or otherwise make his travel arrangements for the purpose of this Order.
That CJS have contact with the mother as arranged by CJS’s counselor, Ms SH and such contact be facilitated and encouraged by Ms KB and by the father.
That the parties take all necessary steps to ensure CJS receives therapeutic counselling with Ms SH by:
(a)Transporting CJS to and from appointments, or arranging such transport;
(b)Ensuring his attendance at all arranged appointments;
(c)Complying with Ms SHs’ recommendations;
(d)Attending appointments as requested by Ms SH;
(e)The father meeting all costs and fees.
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 CJS’s hearing.
That Mr and Mrs B be restrained from speaking in a negative manner in CJS’s hearing about either of his parents and to affirm in any way possible, CJS’s relationship with both his parents.
That the parties be restrained from showing CJS or SSJ any documents filed in these proceedings or these orders and reasons for decision.
That the father ensure that the mother be kept informed of any significant medical events involving CJS, whether illness or accident.
That the father be solely responsible for liaising with Newcastle Grammar School in relation to all CJS’s educational needs and any other issues relating to his welfare at school.
That as soon as arrangements can be made, the father and mother each attend a post separation parenting skills course and the child representative to forthwith provide to each party a list of possible courses.
Each party to provide evidence to the Court prior to the adjourned date of their participation in a parenting skills course.
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.
That the mother’s Application for Contravention filed in the Newcastle Registry on 21 January 2005 be withdrawn and dismissed and the return date of 1 April 2005 at the Newcastle Registry be vacated.
That the child representative forthwith provide a copy of these Orders to Mr and Mrs B and to the Principal of Newcastle Grammar School.
That the child representative forthwith provide a copy of these Orders and Reasons to Ms SH and to Mr NP, the Regulation 8 Welfare Office who prepared the Family Report.
That Mr NP prepare an updated Family Report addressing CJS’s response to the arrangements for his care set out in these Orders and addressing other options proposed by either party for CJS’s ongoing care.
Each party have liberty to apply at 7 days notice.
That this matter be adjourned for further mention before me to Tuesday 10 May 2005 at 9.45a.m.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
NCM 2725 of 2004
| KS |
Applicant
And
| SS |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for parenting orders in relation to a child CJS, aged 13 years. The mother filed an Application on
28 September 2004 seeking orders on an interim basis that CJS be returned to her by the father and that CJS live with her. The mother did not seek any final orders in her application. The mother represented herself at hearing and informed me from the bar table that her ultimate goal was to have CJS living with her.
The father filed a Response seeking a final order that he have sole responsibility for the long term care, welfare and development of the two children of the marriage, SSJ aged 14 years and CJS. He sought interim orders that CJS attend St Joseph’s College in Sydney as a boarder from the commencement of 2005 or as a day boy at the discretion of the father, at his expense.
On 1 December 2004 interim orders were made by the Federal Magistrate’s Court in Newcastle providing for CJS to live with his father. Further orders provided for CJS to receive therapeutic counselling with Ms SH at the father’s expense and for the appointment of a Child Representative.
4.By order of 3 December 2004, a Family Report was prepared on an urgent basis in early January 2005.
5.The matter was transferred to Parramatta to obtain the earliest possible hearing dates.
6.On 21 January 2005 the mother filed an Application for Contravention in the Newcastle Registry returnable on 1 April 2005. The application concerned CJS’s ongoing therapy with Ms SH. As the parties agreed this Court should order the therapy to continue, the mother decided and was given leave to withdraw her application.
7.At the commencement of the hearing the Child Representative submitted a proposal for CJS’s care in the short term. Both parties then amended the orders they sought. The father substantially agreed with the proposal. The mother agreed with some aspects but not others. There was agreement that I deal with the matter on an interim basis only. There was an agreement that an updated Family Report be prepared in approximately three months time addressing each party’s proposals in relation to CJS’s living arrangements. The parties agreed CJS should receive ongoing therapy from Ms SH to, inter alia, attempt restoration of his relationship with the mother. However, the parties did not agree on where CJS should live pending a further family report being prepared. The mother sought an order that CJS live with his father, and in the alternative with a Ms GW, a foster carer in Newcastle. The father sought an order that CJS live with a Mr and Mrs B during the school week and with him on weekends and during school holidays.
Background facts
The mother was born on 17 March 1954. She is 50 years old.
The father was born on 13 April 1929. He is 75 years old.
The parties married in 1987 and separated in 1993 when CJS was 18 months of age.
There are two children of the marriage, SSJ born 30 March 1990 and CJS born 18 November 1991.
The father has three adult children from his first marriage.
Parenting Orders were made by consent on 27 April 1994 providing for the children to live with the mother and to have contact with the father on a limited basis. The children increased contact time with the father by Consent Order of 3 October 1996.
SSJ is boarding at St Joseph’s College and divides his time on weekends and school holidays with each parent. CJS attends Newcastle Grammar School and will be in Year 8 in 2005.
From the date of separation until September 2004 both boys lived with the mother and had regular contact with the father. Last year SSJ started boarding school in Sydney. In September 2004 CJS left the mother’s home, electing to live with the father.
The father has lived with Ms MA since he separated from the mother in 1993. They live in Belmont, near Newcastle. The father has retired, is in good health and enjoys tennis and golf. Ms MA, 56 years of age, has had some health problems in the past. He is at home full time.
The issue
The question for the Court was where CJS should live when he starts school on 31 January 2005. It was common ground between the parties that CJS could not live with the mother at this time. The father said he would not permit CJS to live with him full time.
The following matters were relevant to the issue before me:
·CJS’s wishes.
·The capacity of the father or the other persons nominated by the parties to provide for CJS’s needs.
·The nature of CJS’s relationship with the father and the other nominated persons.
·The need to protect CJS from physical or psychological harm.
·The attitude of the father to the responsibilities of parenthood and to having CJS live with him.
·CJS’s relationship with the father’s wife.
The relevant law – parenting
Parenting orders 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 which provides that a court must regard the best interests of the child as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. Section 60B(2)(b) provides 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. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering what parenting arrangements should be ordered, the court must make the order which it considers to be in the best interests of the child.
In deciding the parenting arrangements that will promote the best interests of Nicole in this case, I must have regard to the factors in Section 68F(2) of the Act to the extent each subsection is relevant to this particular case. The matters that are to be taken into account under section 68F(2) are:
a)the wishes expressed by the child;
b)the nature of the relationship between the child and each parent;
c)the likely effect of any change in the child’s circumstances;
d)the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
f)the child’s maturity, sex and background;
g)the need to protect the child from physical or psychological harm;
h)the attitude of the parties to the responsibilities of being a parent;
i)any family violence that may involve the child or a member of the child’s family;
(j)any family violence order that applies to the child or a member of the child’s family;
(k)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)any other fact or circumstance that the court thinks is relevant. This subsection ensures that the individual child’s circumstances in a particular case can be properly taken into account.
In B & B Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court said:
9.51In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
Section 68F(2)(a) is a factor in this case, to which I must give consideration. The Full Court in H v W (1995) FLC 92-598 said:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, 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.”
Evidence and findings
23.
Given the parameters of the dispute I was asked to determine, not all affidavit material filed by both parties was directly relevant to the interim issue to be determined. However, I took all material thus far filed in the proceedings into account to the extent it was relevant. With the consent of the parties, I gave leave for the father to file an affidavit sworn by KB on 25 January 2005. I took particular account of the contents of the Family Report prepared by Mr NP in early January 2005.
I heard evidence from Ms GW, Ms KB and the father. Each witness was cross examined.
24.This is a sad case and particularly difficult. CJS is in crisis. His parents have been in perpetual conflict since the parties’ separation 11 years ago. Mr NP reported at page 6:
It thus can be clearly seen that the history of destructive dynamics between both parents, and the father’s current partner, has contributed significantly if not wholly to the current crisis surrounding CJS.
25.The relationship between CJS and his mother has completely broken down and CJS refuses to return to her care under any circumstances. CJS is undergoing therapy with Ms SH to address the breakdown in his relationship with the mother. CJS wants to live with his father. His father has refused to have him full time. Mr NP has recommended the Department of Community Services intervene in the proceedings to assess possible placement options. Since his report was released to the parties, two alternative carers have been proposed by the parties and each has offered to care for CJS. One carer is supported by the mother, one by the father.
26.CJS is presently in the care of his father in accordance with orders made on 1 December 2004 but the father said he is “tired” and “I’ve had it” “it’s gone on too long” and that CJS will have to live somewhere else on weekdays. According to Mr NP, Ms MA has made it clear to the father and to CJS that if CJS lives with them full time, she will leave the relationship. The father will not agree to CJS remaining with him even for the next 3 months while alternative placement proposals are properly assessed. He said CJS and SSJ had an appalling relationship with his wife, who would not tolerate either child living in their home full time. Having heard evidence from the father and submissions from his legal representative, it is plain to me the father has put his own interests well ahead of those of CJS. Mr NP stated at Page 10 of his report:
CJS is a thirteen year old boy, who is feeling rejected and clearly uncertain and, in my view, frightened about the immediate future.
27.The father said CJS’s relationship with his wife had always been poor. He regarded the mother as largely responsible as in his view, she alienated the children from his wife. The father conceded his wife had not had children of her own and had no strategies for managing the children’s hostility towards her. If an order was made requiring CJS to live with him, he said it would cause a rift and he may have to live separately from his wife. This was not an option for him.
28.The father said the boys “hated each other” and if SSJ came to stay for a weekend while CJS was with him, he would have to take them away because the fighting at home would be intolerable for him and his wife. He said he can only just manage to restrain the boys from physically attacking each other. However, he said CJS was a happy child. He regarded the abusive relationship between the boys as inevitable. “It’s been going on for years, and will not change.” He was adamant he did not require any assistance with parenting skills. In his view, CJS is happy when he is with him. He said the mother needed therapy.
29.The father presented as focussed primarily on his own needs. He said he is 75 years of age and he’s done enough. I have concluded that although he has taken financial responsibility for his children, he has not taken responsibility for their emotional welfare. The mother told Mr NP he was detached and aloof in the child rearing process. When he left the relationship 11 years ago, he expected the mother to be the children’s day to day carer. He said in evidence that his present wife always said she was not prepared to have the children living with them and he had assured her she would not be in this position. Ms MA confirmed this in her interview with Mr NP [P 8]. Ms MA has made it clear to CJS that her home with the father is not CJS’s home. She was highly critical of CJS to Mr NP, admits to a non-existent relationship with him, yet takes no responsibility for the dysfunctional family dynamics that exists in the family or for the damage caused to both children. CJS said to Mr NP “MA hates me, always has”.
30.The father had difficulty accepting that his plan for the children had not worked out. He blamed the mother. He said the mother should fix the problems so the boys could live with her or CJS could join SSJ at St Joseph’s College in Sydney as a boarder. I agree with NP [at page 4] that the father’s support for CJS’s attendance at St Joseph’s College is related more to the issue of where CJS should live rather than the value of St Joseph’s for CJS’s education. The father is fully aware how much CJS wants to live with him, but he has decided and is immovable on the issue, that CJS must live somewhere else. He regards the mother as the sole cause of the dysfunction in the family relationships and therefore the one who should remedy the problem. I have decided the father has chosen to be one step removed from this family, the “grandfather figure”, rather than the father. He has decided that there is a limit to the responsibilities he is prepared to accept and he has reached that limit. I agree with Mr NP when he said [page 4]:
It remains clear that Mr SS, in effect, does have choices in regard to both of his sons. It is my belief that Mr SS’s choice for his son CJS is very clear.
31.The father is 75 years of age but on his own evidence is in good health. He plays tennis and golf and has no other commitments outside the home, apart from the care of his boys. I have decided the father has abrogated one of his fundamental obligations as a parent in refusing CJS’s wish to be cared for day to day by him. The Act provides that CJS has a right to be cared for by his parents. This is CJS’s basic right as a child. I find no justifiable basis for the father’s attitude to CJS’s plight.
32.The mother was unrepresented. She made a number of comments from the bar table about CJS’s situation. The mother gave me a recent example of CJS speaking to her rudely and inappropriately and how she handled the situation. She said as a result of CJS’s rudeness, she and the father agreed that CJS would be deprived of his bike and the computer on that afternoon. This was in the context of her inviting CJS to her home for a few hours ‘to have fun’. The mother showed no insight into this incident from CJS’s perspective. The mother said her focus was and always had been on CJS’s needs, yet her focus appeared to be on his problems: his behaviour, his learning difficulties, his need for discipline. Her affidavit evidence disclosed minimal insight into the underlying causes of the breakdown in her relationship with CJS or his presenting difficulties. She appeared unable to see the big picture. I note Mr NP’s suggestion that neither CJS nor SSJ has formed a primary attachment to the mother or the father [P. 11]. Mr NP had to strongly encourage CJS to be in the same room as his mother at interview. I note Mr NP’s conclusion [P. 14] that:
There seems to be little recognition by the adults in this matter as to the causal factors of their son’s suffering, attitude and behaviour.
33.Neither party proposed another family member as a possible carer for CJS. Despite the father having three middle aged children from his first marriage, apparently none have offered to have CJS live with them. Mr NP said at Page 11:
According to his father, CJS does not have a very close relationship with his three adult half-siblings, yet CJS in his desperation indicated that he would not mind living with his older sister or any of his older brothers. Mr SS indicated this was never going to be a reality.
34.The father proposed that CJS live with Mr and Mrs B of Elermore Vale on weekdays and with him on weekends and school holidays. The mother proposed that CJS live with the father. In the alternative the mother proposed CJS live with Ms GW, a foster carer for the Department of Community Services in Newcastle. Ms GW’s foster son NI has been a friend to CJS’s brother, SSJ for about 12 months and Ms GW has become friendly with the mother. Neither placement had been assessed by an external agency or department so there was limited evidence before me in relation to both parties’ proposals.
35.Ms GW was not on affidavit. She lives in a small home in Islington, about 3 minutes from the Newcastle CBD, with her foster son NI, aged 15. NI has lived with Ms GW for approximately 3 years. NI is in Year 10 in 2005 at Waratah High School. Ms GW has been a foster carer for the Department of Community Services for 4 years. She has a certificate in disabilities for social services from TAFE. She is studying social welfare. From time to time Ms GW has the care of another child in the short term. I was impressed by Ms GW as a witness. She responded to questions in a direct and common sense manner. She was obviously concerned about CJS and focussed on his needs. I had the impression she had been a very successful foster parent to NI and would provide a warm and caring environment for CJS. However, counsel for the Child Representative had told me CJS had told her instructing solicitor in clear and unequivocal terms, that he would not be prepared to live with Ms GW. When I put this difficulty to the mother, she was not concerned. In her view, CJS would live where he was told to live and would get used to it. She did not believe he would run away.
36.I have decided it would be not be in CJS’s best interests to order him to live in a care situation he has expressly opposed.
37.Ms KB had sworn an affidavit on 25 January 2005. Ms KB lives with her husband and son DA, aged 18 years. They have a daughter aged 22, a qualified teacher, living independently. DA will commence a degree in either engineering or architecture in 2005 and will remain living at home. Mr and Mrs B are comfortable financially and live about 10-15 minutes from the Newcastle CBD. DB has his own retail business nearby. Ms KB works 24 hours a week as a pre-school teacher. Ms KB is a personal friend to MB, the father’s second child of his first marriage. In discussions with Ms Brown about CJS’s plight, KB offered to care for him. She said she now has the time for another commitment given the age of her children and would like to care for CJS. She has met him three times and he has spent one night in the family home. She said she feels capable of caring for CJS and would be happy to be formally assessed by an outside agency. KB was an impressive witness. Her evidence suggested she and her husband had raised their children in an atmosphere of free and open communication with a high level of love and support. Although her own children were capable academically, she has a brother with special needs and cares for a special needs child periodically. She works with young special needs children. KB was aware CJS was dyslexic and had some behavioural difficulties at school. During CJS’s one overnight stay, she had perceived his difficulty with auditory processing.
38.KB said if CJS were to live with her family, he would have his own room and would travel by bus to school from very close to her home, a 25 minute bus trip. KB is available and willing to transport CJS to and from any activities or commitments after school. KB said she would not permit negative comment about CJS’s parents and would have no objection to an order being made to that effect. She said she would want an open relationship with both parents. She saw reconciliation between CJS and his mother as the ultimate aim. KB presented as a generous, caring and capable woman.
39.CJS has told the Child Representative he would agree to live with the B family during the week. The father said CJS fully accepted living with the B family and was happy about it. I am not persuaded CJS is happy about it. I am satisfied CJS wants to please his father and in the circumstances he has found himself, has fallen in with the father’s wishes. Mr NP said [P.13] “CJS appears to excuse his father for this decision.”
40.I am satisfied on the evidence of Mr NP that CJS has been deeply affected by the long term conflict between the parties. CJS is aware his father will not have him to live with him full time. He is aware there are Court proceedings on foot to decide what should happen to him. He is in a terrible situation. Mr NP concluded:
In my view CJS and his brother SSJ have been raised by parents who have been in perpetual conflict and have undermined their respective parenting and in many ways have treated their children contemptuously. CJS’s current crisis appears to be the product of rejection from three adults with whom he should have the greatest attachment. The reality however is that he has grown in the context of degraded parental relationships which have focussed on power and affluence rather than caring. Healthy children can only evolve if they are reared in healthy environments. CJS’s feelings of rejection are real and certainly justified.
41.
CJS expressed clearly to Mr NP that he has enjoyed living with his father since he moved there in September 2004.
I have given careful consideration as to whether I should order that CJS live with his father, despite the father’s strong opposition to such an order being made. The Full Court in Cowling’s case (1998) FLC 92-801 held that in determining an interim residence application, the best interests of the child will normally be best met by ensuring stability in a child’s life pending a full hearing of all relevant issues. The Full Court held that if a child is well settled the child’s stability will usually be promoted by an order providing for a continuation of that arrangement. When asked by Counsel for the Child Representative how he would react to such an order, the father said he would probably have to move to a unit in the Newcastle city area because his wife would not tolerate CJS living in their home full time. He would have to live alone with CJS. He said this would be disruptive to himself and disruptive to CJS and it was better to place CJS elsewhere immediately.
42.
According to Mr NP [P.11] CJS has already felt some responsibility for the poor relationship between his parents.
I have therefore decided with some reluctance, that to order CJS to live with his father at this time may cause CJS further harm if he were to take responsibility for any consequences which might flow for his father’s present relationship. I have therefore decided that CJS will stay with the B family on week days during school terms. I anticipate the B family will provide CJS with a totally new and positive experience of how family life can be. The bigger question is whether, given the long term damage caused to him, CJS will feel settled there. I have made an order that if CJS’s placement breaks down, the matter be brought back before me urgently.
43.On the strong recommendation of NP, and with the agreement of the parties, I have continued the order relating to CJS attending Ms SH for therapeutic counselling.
44.It is evident that both parents lack basic parenting skills. Despite the father’s opposition to attending a parenting skills programme, I have ordered that he do so. I am hopeful he will gain something from attending. Given the crisis facing CJS, both parents must accept responsibility for finding ways to significantly change their parenting approach. The father’s age is not relevant to this endeavour.
45.CJS has special educational needs. There is substantial evidence from the mother in particular, about CJS’s special needs and the steps she has taken to address them. It will be necessary for the school to liaise with one of CJS’s parents about developing a programme for him for Year 8. There is no need for me to address the specific issues in these Reasons. The parties agreed that one parent should be the liaison person for the school during the adjournment. It was urged on me by the Child Representative and the father to nominate the mother in relation to curriculum and remedial programme issues, as she has very detailed knowledge of CJS’s needs and what has worked for him to date. Both recommended the father be the liaison parent in relation to disciplinary and health issues. Given the high degree of acrimony between the parties, the breakdown in the relationship between CJS and his mother and the conflict to which CJS has been subjected for so long, I have decided it is in CJS’s best interests for the father to be the liaison parent for all purposes during the adjourned period. CJS will know that it is his father the school should contact about anything connected with his welfare. I am satisfied CJS will find it easier if the father is the contact person. Should the father wish to consult the mother about specific issues, he can do so.
46.
Mr NP recommended an adjournment of approximately
6 months, but he foreshadowed the intervention of the Department of Community Services to assess CJS’s placement in the meantime. Given my decision to place CJS temporarily with the B family, I have decided the matter should be adjourned for just over 3 months. In that period, CJS will continue therapy with Ms SH. It may be possible for Mr NP, in consultation with Ms SH, to assess the likelihood of CJS’s relationship with his mother being restored. If such restoration seems unlikely, I have asked Mr NP to assess the suitability of the arrangements I have put in place for CJS and other possible options.
47.The Child Representative will remain in the matter during the adjourned period.
48.I am satisfied the Orders I have made are in the best interests of CJS in the short term.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 27 January 2005
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