L and I
[2003] FMCAfam 134
•23 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & I | [2003] FMCAfam 134 |
| CHILDREN – Residence – change to long standing arrangement – assessment of the wishes of a child of nine years of age – weight to be given to such wishes – splitting of siblings. Family Law Act 1975, ss.60B, 65E, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | D L L |
| Respondent: | C D I |
| File No: | DNM2552 of 2002 |
| Delivered on: | 23 April 2003 |
| Delivered at: | Darwin |
| Hearing dates: | 10 & 11 April 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Terry |
| Solicitors for the Applicant: | Janet Terry Barrister & Solicitor |
| Counsel for the Respondent: | Mr Black |
| Solicitors for the Respondent: | Cecil Black Family Lawyers |
ORDERS
That the orders made by the Family Court of Australia at Parramatta on the 1st of November 2001 be discharged.
That the mother and the father have joint responsibility for making all decisions concerning the long term care, welfare and development of J A L, born the 1st of January, 1994 (“the child”).
That the child reside with the father in Cairns in the State of Queensland from the conclusion of the 1st term Northern Territory school holiday and the father arrange and pay for the child to travel from Darwin to Cairns in order to give effect to this order.
That the mother have contact with the said child at such times and places and on such conditions as agreed between the parties but failing agreement for a minimum as follows:
(a)For one half of all gazetted Queensland school holidays, with the mother to have the second half save for the Christmas school holidays;
(b)For one half of the gazetted Queensland Christmas school holidays with the mother to have the first half in the 2003/2004 and the second half in the 2004/2005 and each alternating year thereafter;
(c)By telephone on two occasions each week;
(d)On the Mother’s Day weekend each year from Friday on the first available flight from Cairns to Darwin until the first available flight on the following Monday from Darwin to Cairns.
That the mother’s contact is conditional upon:
(a)That the said child shall not be physically disciplined by his stepfather, G I.
That the responsibility for making all day to day decisions concerning the child’s care, welfare and development be with the parent in whose care he is at any given time.
That the cost of travel for the mother’s contact with the child in Darwin be shared equally between the parties, with the father to be responsible for reserving all air travel for such contact, such reservations to be made the week following the previous contact period, and the mother to reimburse the father one half of the cost within 14 days of notification of such contact.
That the father have contact with the child at least twice each week by telephone during all periods of the mother’s contact.
That both parent be permitted to take the child on holiday anywhere within the Commonwealth of Australia provided that the other parent is provided with one months written notice of the holiday and a written copy of the itinerary involved in such holiday and a telephone number on which the child may be contacted during such holiday.
That each party obtain the consent of the other for any specialist appointment for the child, excluding emergency treatment and that such contact not be unreasonably withheld.
That each party provide the other with copies of all assessments and reports, including school reports concerning the said child obtained whilst the child is in his or her care.
That both parents be authorised and this order act as sufficient authority to enable both parents to contact the child’s school from time to time and to discuss the child’s progress with the child’s teachers and school principal.
That all existing applications including the father’s form 49 applications filed herein be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2552 of 2002
| D L L |
Applicant
And
| C D I |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a difficult and finely balanced case, concerning future parenting arrangements for a nine year old boy, J A L, born the 1st of January, 1994. The parties to the proceedings are J’s mother, C D I (the mother) and his father, D L L (the father).
The parties have been separated for many years, since October of 1997. Since that time J has lived primarily with his mother. However, he has had regular contact with his father in the period since the parties separated. In September of 2001, the mother and J moved to live in Darwin with Mrs I’s second husband, G J I. It is the father’s position that since at least the middle of 2002, J has been expressing a strong wish to come and live with him and his second wife, T C L in Cairns. Clearly, if effect is given to this apparent wish on J’s part, it will displace a long-standing arrangement regarding his care and the parent with whom he primarily lives. It will also necessitate a change of residence and new arrangements for contact between J and his mother.
The difficulty in this case can be easily stated. There is no doubt that J loves both his parents and is closely attached to each of them. They in turn each have a deep and abiding love for J and each has a fervent desire to achieve the best outcome for him in life. Both the father and mother have much to offer J by way of love and support and each has played a large role in his life to date.
It is the mother’s position that it will be unduly unsettling for J to take him out of the care arrangements that he has known for most of his life to date. She is also concerned that such an arrangement will deprive J of the opportunity to develop a close relationship with his newly born half-sister S, who was born on the 31st of October 2002. It is the father’s position that if regard is not had to J’s desire to live with him, it may have detrimental consequences for J’s future emotional well being and development. There is much to be said for the position that each party has adopted in this case and no easy answer is apparent, particularly given J’s age at the present time; the tension and suspicion that currently exists between the parties; and the distance and expense involved in travelling between Darwin and Cairns.
In order to reach a conclusion in this case, it will be necessary to examine what J’s wishes are; the possible reasons why he has expressed his wishes in the way he has done; and the maturity and insight behind those wishes. Given his obvious loyalty and love for both his parents and the understandable emotional volatility concerning the issues between the parties, of which J is well aware, it is necessarily difficult for him to express his wishes. In addition, he is only nine years of age. Ordinarily not an age when a child could be expected to have a clear understanding of all the possible ramifications of any choice he or she may express and also usually an age when it falls to the parents of the child concerned to make important decisions concerning that child and so relieve him or her of the possible emotional burden of having to choose between parents.
For all these reasons, a family report was prepared to assist the Court with the ultimate disposition of the matter, but particularly to ascertain the wishes, adjustment and level of development of J himself. This report was prepared by a psychologist, Stephen Ralph.
As I have already indicated, both parties have re-partnered since their separation and as a result, J has had to form relationships with both Mrs L and Mr I. Mrs L has been a significant part of the father’s life and so J’s life as well, since 1998. She has a son, also J (K), who was born on the 25th of July, 1991. J’s (K) father is deceased.
Mr I has become more recently involved in J’s life. He met the mother through the internet in early 2001. The mother and Mr I had their first physical meeting in February of 2001 in Sydney and met again in Darwin in Easter of that year, when they became engaged. They married in Darwin on the 13th of July 2001. J and the mother moved to Darwin in September of 2001. Mr I is a sergeant in the Royal Australian Army. Prior to September of 2001, J had met Mr I on only a few occasions.
All in all, 2001was a year packed with significant incidents for J. Not only did he move from Sydney where he had lived since 1998 and had regular contact with his father on weekends and school holidays, but in October of that year, the father and Mrs L moved to Cairns. The mother was pregnant in 2001. She gave birth to a son S, on the 30th of December 2001. Tragically, he died a few days after his birth on the 8th of January 2002. J has had to deal with all these things, as well as adjusting to a new school and new environment in Darwin. He has also had to form a relationship with Mr I.
The evidence is clear that during parts of 2001, J has exhibited behavioural problems. He has received psychological counselling, both in Sydney and in Darwin as a result. The mother acknowledges that during her pregnancy, she had some difficulty dealing with J, particularly in regards to discipline[1]. In these circumstances, in February of 2002, Mr I sought to play a more active role in J’s upbringing. Out of respect for his feelings, he contacted the father and sought his permission to be able to administer discipline to J. This permission was granted, although the parties are in vigorous dispute about the extent of the imprimatur given and whether it extended to J being smacked or otherwise physically disciplined.
[1] See mother’s affidavit of evidence at paragraph 46
It is the father’s position that J is deeply resentful of any physical discipline that has been administered to him by Mr I and as a result J and Mr I do not have a supportive relationship with one another. Once again, for much of 2002, the mother was pregnant with S. Without doubt, given the earlier tragic circumstances surrounding S’s death, this must have been stressful for all concerned, including J, who for reason which will be elaborated on in due course, was deeply affected by his brother’s death. The father asserts that J has told him that he (J) feels supplanted in his mother’s affections by Mr I and by S, both before and after she was born. As a consequence of all these factors, it is the father’s position that J is deeply unhappy living in his present circumstances in Darwin and wants to change. These feelings came to the fore in a contact visit in Cairns in June/July of 2002 and were instrumental in bring the relations between the father and Mrs L on the one hand and the mother and Mr I on the other to their current parlous state.
It is the father’s position that in June of 2002, J disclosed to him that he was being physically and emotionally abused in his mother’s household, primarily by Mr I. The father asserts that the mother is either wilfully blind to these concerns, which he raised with her in mid 2002 or is in a state of denial about them. It is the mother’s position that the father has overstated these concerns and manipulated them and J for his own ends, chiefly so that he can gain the residence of J from her.
In June of 2002, the father commenced proceedings in the Magistrates Court in Cairns seeking the residence of J on both an interim and final basis. The mother did not consent to the jurisdiction of the Magistrates Court to deal with this application, which was transferred to the Family Court. As a result of his failure to obtain such an interim order, the father returned J to Darwin in early July. Litigation between the parties in respect of arrangements for J’s care have proceeded between the parties in this Court since that time. In this atmosphere, J has moved between his parents at regular intervals for contact visits during school holidays. It was also against this background that the family report was prepared.
Accordingly, the major issues for determination in this matter appear to be as follows:
·What are J’s wishes as to where and with whom he wants to live;
·If J does have such a wish, is it unalloyed or subject to some influence, whether malign or otherwise;
·Given J’s age at present, does he have sufficient maturity to be able to express a clear and unambiguous wish and the necessary insight into what will be the consequences of that wish being put into effect;
·What will be the likely consequences for J of ceasing to live with his mother, with whom he has lived for many years and moving to an environment with which he is comparatively unfamiliar, particularly in the sense of attending school and taking part in other day to day activities;
·What are the consequences for J of him no longer living in the same household as his half-sibling, S as she grows up;
·Above all, what is the nature of the relationship that J enjoys with each of the significant people in his life, but particularly his parent’s partners, Mr I and Mrs L.
The parties competing proposals
The father proposes that J should live with him and Mrs L in Cairns and that the mother should have physical contact with him for alternating halves of each Queensland school holidays; the Mother’s Day weekend and by telephone on two occasions each week. The parties would share equally the costs involved in J travelling backwards and forwards between Cairns and Darwin. It is the father’s position that the mother’s contact with J be subject to the following conditions: that she not be working or at sea during any period of contact; that J not be placed in childcare during contact and of the greatest significance, that Mr I not be permitted to physically discipline J or that J be left in his sole care. These conditions are a bone of contention between the parties.
It is the mother’s position that J should continue to live primarily with her in Darwin. She would seek to have sole responsibility for making all day to day decisions concerning J’s care, welfare and development whilst he is living with her and in particular she wishes to have the authority to make decisions about which sports J will play and his religious upbringing. She proposes that the father should have contact to J for alternating halves of the Northern Territory Christmas school holidays; the whole of the Queensland June/July school holidays (a period of a fortnight); and for either the whole of the Northern Territory April or September/October holiday in each year. She would propose telephone contact on one occasion each week.
Chronology
The father aged 37 was born on the 25th of January 1966. Presently he is employed as a scuba diver instructor. The mother aged 35 was born on the 30th of June 1967. She is employed as a petty officer in the Royal Australian Navy. They both enjoy good health. The parties began their relationship in December of 1986, when they were both serving members of the Navy. They married at Auburn, New South Wales on the 6th of August 1988 and separated on the 24th of October 1997, when J was just over three and a half years of age. The marriage between the parties was dissolved on the 20th of July 1999.
Due to their work in the Navy, the parties were frequently posted to locations throughout Australia during their marriage but were not necessarily posted to the same place. When they separated, the mother was stationed in Nowra and the father was stationed in Newcastle. The father met his current wife in Newcastle in September of 1997. She too was a member of the Royal Australian Navy. They began to live together in September of 1998. They married on the 26th of February 2000. J has had a relationship with Mrs L since shortly after the parties separated. As a result, he also met Mrs L’s son, J K. The two boys separated in age by approximately two and a half years, enjoy a close relationship.
On the parties’ separation, J continued to live in Nowra with his mother. The father travelled from Newcastle for regular weekend and holiday contact with J.
In late 1998, the mother moved to Penrith and the father moved to Epping, both suburbs of Sydney. Proceedings were commenced in the Family Court at Sydney in order to formalise arrangements in respect of J’s care. These proceedings were finalised with consent orders on the 6th of September 1999. The effect of these orders was that J would continue to live with the mother and would have contact on alternate weekends and for half of school holidays with his father. In the event that the mother was at sea, the father was to have contact to J each weekend and J was to live with his maternal grandmother.
The father married Mrs L on the 26th of February 2000. Later that year, the father left the Navy and he and Mrs L decided they would move to Cairns to live. By this time, the mother and J were living in Coogee and J was attending S F of A school in Paddington. Around November of 2002, J began to exhibit behavioural problems at school and as a result he was referred to a psychologist, Ms Jane Drinkwater at the Prince of Wales Hospital. He had regular sessions with Ms Drinkwater for about six months and his behaviour settled down.
As has already been indicated, 2001 was a year of change and turbulence for J and each of the people involved in his care. In the early part of the year, the mother met Mr I on the internet. At the time, Mr I was stationed in Darwin. He is a sergeant in the Royal Australian Army. The first physical meeting between the two was in Sydney in February. In April, the mother travelled to Darwin and she and Mr I decided to marry. In May the Navy offered the mother a posting in Darwin. On the 13th of July 2001 the mother married Mr I in Darwin. Prior to the marriage, Mr I had only met J on one or two occasions.
J continued to see Ms Drinkwater until June or July of 2001. Both his parents were involved in the consultation process with her.
In September of 2001, the mother’s posting to Darwin was finalised. This posting coincided with the father and Mrs L’s plans to move to Cairns. Accordingly, it was necessary for variations to be made to the orders of September 1999.
To their great credit, the parties were able to negotiate fresh consent orders between themselves, in order to recognise the reality of their new situation. The mother was permitted to relocate the residence of J from Sydney to Darwin. The father was to have contact to J for nine weeks of the school holidays each year. This agreement between them was formalised by orders that were made by the Family Court at Parramatta on the 1st of November 2001. Pursuant to these orders, the mother was required to inform the father if she was deployed to sea and how she proposed that J was to be cared for during such a deployment. The father reserved the right to prevent the mother’s deployment to sea, if he was not satisfied with the arrangements that had been made for J’s care. It seems that at this time, due to the necessarily slight relationship between J and Mr I that the father was concerned about J being left in his care in the absence of the mother. The parties each acknowledge that in the period between the two sets of orders, although their relationship was not without its difficulties, they were able to cooperate with one another in respect of arrangements for the care of J. This can be demonstrated by their joint involvement in J’s consultations with Ms Drinkwater. It also seems that the mother and Mrs L were able to communicate easily with one another and share confidences.
In September of 2001, J and his mother arrived in Darwin. J was enrolled at the S H Primary School. In October of 2001, the father and Mrs L moved to Cairns. J had his first period of contact with his father in Cairns at Christmas of 2001 and thereafter at Easter the following year.
The mother was pregnant for much of 2001. She gave birth to S in Darwin on the 30th of December 2001. At the time, J was with his father in Cairns. It became apparent that S was not expected to survive long after his birth and an agonising decision had to be made as to whether or not J should return to Darwin prior to his passing. After communications had passed between the two halves of J’s family, ultimately it was decided that he should remain in Cairns, although he did return to Darwin for S’s funeral. It seems that all concerned, but particularly J himself, continue to exhibit the emotional sequelae of this difficult decision.
From September 2001 onwards, J had to adapt to life with Mr I in Darwin and to a new school. It seems that he began to exhibit bad behaviour, both at home and at school. As a result, the mother, after consultation with J’s school principal, arranged for him to attend a counsellor, Ms Chris Lovott.
As a consequence of these difficulties with J, Mr I sought to become more involved with his direct discipline. To his great credit, Mr I sought permission from Mr L to be so involved and a letter passed between the two men, via J, at Easter of 2002. The letter authorised Mr I to discipline J according to “community standards”. There is a dispute between Mr L and Mr I as to what was said between them in the conversation that gave rise to this letter. However, there is no dispute that thereafter Mr I smacked J on a number of occasions. The response of J to this discipline is one of the major issues in dispute between the parties and will be discussed in greater detail when necessary findings of fact are made.
In Easter of 2002, following a contact visit, J first indicated to his mother that he wanted to live with his father in Cairns[2]. The mother fell pregnant with S in the early part of 2002. In the light of what had happened before, this must have been an anxious time for her and Mr I, an anxiety of which J must have been aware. Mr I, for obvious reasons, wished his wife to avoid being placed under any undue stress. Around this time, there was some controversy between the parties as to whether or not J should be taken to a dietician. He has apparently always been a thin child and a fastidious eater. This did nothing to ease tensions between the parties and it seems clear that Mr I became more actively involved in matters between the parties concerning arrangements for J. J got into trouble at school in late May and was disciplined by Mr I.
[2] See mother’s affidavit of evidence at paragraph 75
The next scheduled period of contact between J and his father was the June/July school holidays of 2002. This proved to be a water shed for all concerned. On his arrival in Cairns, J presented his father and Mrs L with a list of concerns that he had in respect of living with Mr I and his mother in Darwin. These concerns were later formalised in a letter that passed between the parties. J’s concerns included the following: he was not happy; he wanted to live with his father in Cairns; he was not allowed to read at night; he felt displaced by his mother’s and Mr I’s forthcoming baby; his mother and Mr I were continually fighting; he was smacked by Mr I; he hated Mr I and believed that Mr I hated him; he had been told by Mr I that if his mother’s baby died, it would be his fault.
Mr L took these matters seriously, as the tone of his letter to the mother indicates[3]. The parties were unable to satisfactorily resolve the matters raised by J in a telephone conversation that passed between them. As a result, the father arranged for J to be psychologically examined in Cairns. Thereafter, he instituted proceedings in the Magistrates Court at Cairns, seeking an interim residence order in respect of J. He failed to return J to Darwin as had previously been agreed between the parties and in accordance with the consent orders of November of 2001. On his failure to obtain the interim residence order, the father returned J to the mother in Darwin on the 11th of July 2002. As can well be imagined, relations between the parties have been difficult in the extreme ever since. There can be little doubt that J is well aware of the nature of the dispute between his parents and that the interpretation of his wishes as to where he would like to live, is at the centre of it.
[3] See annexure D to Mrs L’s affidavit of evidence
On the 6th of September, 2002, following the transfer of the proceedings to this Court at Darwin, the father filed two contravention applications against the mother[4]. The reason for these two applications was that J had been apparently enrolled in karate classes and was playing Australian Rules football. The father alleged that the mother’s actions in this regard had breached the consent orders of November of 2001, which stipulated that the parties shared responsibility for making decisions concerning J’s care, welfare and development. It was the father’s position that he had clearly indicated to the mother his opposition to J taking part in any contact sports due to his slight build. The father’s resort to applications of this kind indicates the poor nature of the relationship between the parties and the now near impossibility of them communicating with one another.
[4] These two form 49 applications were ultimately adjourned for hearing with the substantive applications regarding J’s residence. However, as Mr L chose not to agitate them at the hearing of the matter, it is my intention to make orders dismissing them both.
On the 24th of September, 2002 orders were made that restrained both parties from discussing the proceedings with J or denigrating the other or the other’s partner to J. It was on this occasion that the family report was also ordered.
J had a further period of holiday contact with his father and Mrs L in Melbourne in September of 2002. He reiterated his concerns to his father regarding his living arrangements in Darwin. He spent a little over a week with his father and Mrs L in and around Melbourne on this occasion.
This was the background to the family report that was prepared by Mr Ralph between the 18th of November 2002 and the 19th of February 2003. Given the nature of the dispute between the parties and the extent of J’s involvement in it, pertaining as it does to the interpretation of his wishes, it was clear to all concerned that the family report would be an important matter, when the case was finally heard by the Court. Accordingly, the family report and the evidence of Mr Ralph will be analysed in greater detail in subsequent sections of these reasons for judgment. However, at this juncture, it is important to note that Mr Ralph interviewed J on three separate occasions. During the first interview, which was conducted on the 18th of November 2002, J strongly indicated to Mr Ralph his wish to live with his father in Cairns. During the second interview, which took place on the 12th of December 2002 and which was arranged by Mrs I, J recanted his earlier wish and indicated that he wanted to remain living in Darwin with his mother. During the third and final interview with Mr Ralph on the 13th of February 2003, J was emphatic in expressing a wish to reside with his father in Cairns.
J’s half sister, S was born on the 31st of October, 2002. She is a healthy baby. There is nothing to indicate other than that J is delighted at this addition to his family.
J had contact with his father in Cairns between the 19th of December 2002 and the 26th of January 2003. He is currently attending year 4 at S H, Palmerston. Apart from the school holiday contact he has had with his father, he has telephone contact with him on two occasions each week. This is a bone of contention between the parties, as is which sports J should play. It being the father’s position that he should be prohibited from playing contact sports until he fills out more and his mother’s position that he should play the sports that he chooses.
Evidence and findings of fact
As directed, each of the parties filed an affidavit containing his or her evidence in chief. In addition, affidavits sworn by Mr I and Mrs L were filed. No other witnesses were called. Both parties were represented by counsel at the hearing before me on the 10th and 11th of April, 2003. Each of the parties and both Mr I and Mrs L were skilfully cross-examined by counsel for the opposing party. In addition, Mr Ralph, the writer of the family report was required for cross-examination and was extensively cross-examined, in particular by Mr Black, counsel for the mother.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses. In both the preceding chronology and what follows hereunder, statements of fact constitute findings of fact.
a) The evidence of the parties
Mr L and Mrs I both present as decent people and loving parents. I have no doubt that each genuinely believes that the proposal advanced by him or her would best advance J’s welfare and be in his best interests in both the short and long term. To their joint great credit, both refrained from a wholesale criticism of the other and each acknowledged that the other has a lot to offer J. There can be no doubt that J loves both his parents and has been significantly affected by the dispute between them.
Mr L impressed as a thoughtful and calm person, who had closely considered what was likely to be in J’s best interests. He did not seem to me to have any strong rancour, so far as the mother is concerned, although the situation is somewhat different so far as Mr I is concerned. The father struck me as someone who closely considered the consequences of his actions. However, once committed to an action, he would determinedly see it through to the end and be assertive in regards to bringing about what he saw as the right outcome. I do not believe that there is much merit in the mother’s criticism of him that he acted to precipitately in commencing these proceedings and failing to return J to Darwin, as originally agreed between the parties in July of 2002. There is however no doubt that he is fiercely protective of his son and passionately interested in every aspect of his care. Since the parties separated in October of 1997, he has gone to great lengths to maintain his role as a parent in J’s life.
The mother characterises Mr L as being domineering and controlling of her in respect of every aspect of her care of J to date. By necessary implication, it is her position that he is undermining of her role in J’s life. Certainly, she has a less assertive personality than the father and he, perhaps because he has in the past felt “left out of the loop”, so far as the day to day care of J has been concerned, has had a tendency to dictate to her in regards to some matters related to J. At any event that is how the mother and, more lately, Mr I perceive it.
However, in my view, the evidence indicates that the father has been supportive of the important and indeed to date, central role that the mother has played in J’s life. Following separation, he acquiesced in J remaining in her care and was able to reach a compromise with her in respect of arrangements for J in September of 1999. Similarly, he agreed to J relocating to Darwin two years later, although true it was that he too wished to move from the Sydney area. The mother is critical of what she sees as unnecessary strictures that were placed on her ability to make arrangements for the care of J at that time, particularly in relation to Mr I. However, in the circumstances and given J’s unfamiliarity with Mr I at the time, I do not think there is much weight to the criticism, particularly as she agreed to the conditions in any event.
I accept Mr L’s evidence that during the Christmas contact of 2001/2002 and again at Easter of 2002, J began to vent his criticisms to him of the state of affairs in his mother’s household, particularly so far as Mr I is concerned. However, Mr L did not act on these concerns, other than counselling J regarding the change in his mother’s circumstances and the resulting need for him to be understanding and to share his mother’s attentions with Mr I. Mr L was satisfied to accept that J’s difficulties were no more than the normal adjustments that a child of J’s age would need to make to his mother re-partnering and his school and home environment being changed.
The tragedy surrounding S’s birth presented the parties and their respective spouses with one of the greatest dilemmas that can confront any parent. It is not for me to provide my view as to whether or not it would be appropriate for a child of J’s age to view his newly born sibling prior to his passing from life. Mr L deposed that he attempted to “nudge” his son to return to Darwin to see S but finally decided to accept J’s decision to remain in Cairns. He was concerned at possible emotional harm being occasioned to J on seeing his newly born brother in the alien setting of an intensive care unit at a hospital. I suspect that he now regrets the decision, as subsequent events have shown that J has been greatly affected by S’s death. It seems that J has assumed a burden of guilt because of his decision not to return to Darwin sooner. I have no doubt that this is a heavy burden for him to bear at his age, particularly given the understandable grief that his mother and Mr I must have felt and continue to feel at the loss of their son. It is perhaps one more factor that has made J’s life in his mother’s home more difficult for him. With hindsight, it is easy to be critical of the father in regards to the event. However, it seems to me that both parties have valid reasons for adopting the positions that they did. The tenor of the mother’s evidence is that she believes that J was not told of the full import of the situation surrounding S by his father. The tragedy has deepened the rift between the two halves of J’s family and regrettably he bears the burden of decisions and recriminations that more properly belong to the adults involved in the matter.
Mr L is currently working as a scuba diver instructor in Cairns. He works a four day week, from 6.00pm Sunday until the following Wednesday afternoon. He is away on the Barrier Reef, with his dive boat on Sunday and Monday night of each week. He works on the boat on Wednesday, whilst it is in port in Cairns. He obviously enjoys this work but is prepared to give it up if it means that he is able to spend more time with his son. He is considering taking up a position as the canteen manager at the school J will attend, if the Court changes arrangements in respect of where he is to live in future.
The mother presented as a concerned parent, who was well aware of the difficulties that have confronted J. It cannot have been easy parenting J from time to time. It is common ground between all concerned that J is an intelligent and sensitive child. It is also clear that he has displayed behavioural problems, at both school and at home, for some time now. Mrs I has done her best to assist her son through these difficulties. She arranged appropriate counselling for J, both in Sydney and Darwin. Her strategies for discipline were appropriate and assumed because of professional advice. However, I sense that, from time to time, J has been a great challenge for her, because of her perception that he was becoming more and more of a “hand full” as time went on. Hers has not been an easy road to hoe of late. J proved unamenable to “time out” discipline and the deprivation of privileges as means to discipline him. It was in those circumstances that she turned to Mr I to take a more active role in J’s discipline. I suspect that she felt at the end of her tether.
Mrs I is not blind to the wishes that J has expressed to live with his father[5]. Her position is that this is a matter that should be considered when J is mature enough to understand the ramifications of such a decision, perhaps when he is aged 12 or over. I accept that she has an affectionate, warm and loving relationship with J. In such circumstances, it is understandable and only human that she should regard the prospect of J moving to his father with a large degree of trepidation. It is also understandable that she should view the actions of Mr L since the beginning of last year as being unnecessarily prying and assertive, whereas Mr L himself sees them as being only the actions of a concerned parent. It is accordingly not surprising that the suspicions between the parties have deepened since July of 2002, particularly as Mr I has become more and more involved in matters to do with J and from the father’s and Mrs L’s perspective, it has become clear that J bitterly resents his intrusions.
[5] See the mother’s affidavit of evidence at paragraph 75
b) Mrs T L
Mrs L presented as a thoughtful person, who was genuine in the warm feelings she expressed for J. I accept that J has a real rapport with her and is prepared to confide in her. I have no reason to disbelieve her evidence that her son and J have a real regard for one another. I do not believe that she has been manipulative of the situation so far as J has been concerned, although, for obvious reasons, she is supportive of her husband and the actions he has taken.
At the present time, Mrs L is employed as a real estate agent in the Cairns area. She and Mr L are financially comfortable.
c) G I
Mr I presented as a genuine and honest person, with a firm belief in old fashioned family values, particularly loyalty, discipline and in regards to children, that they respect their elders and those in authority. I accept that he has a great love for children. He is fiercely protective of his wife and, though respectful of Mr L’s pre-eminence over him in respect of matters pertaining to J, was not willing to stand back whilst he perceived that she was being “controlled over the phone” by Mr L. It was his view that as his wife was the parent “on the ground”, in respect of J, she should assume greater responsibility for making decisions regarding him than Mr L. In his own words, Mr I “got involved” with matters pertaining to J’s discipline in order to “protect” his wife. It is for this reason that Mr I sought written permission from Mr L to discipline J in the early part of 2002. Having observed both men during the two day hearing before me, I have little doubt that they share an uneasy relationship with one another.
Mr I gave his evidence in a bluff, no nonsense manner. He is an active person, with an interest in sports, particularly Australian Rules football and speedway mud racing. He readily admitted he was not a bookish person, whereas J was always reading. His initial impression of J was that he was “mummy’s little boy” and was a little bit spoilt. He was concerned that J spent too much time in the company of adults and on his computer and needed to get out and enjoy himself more. I have no doubt that Mr I and J have enjoyed many activities together, but I suspect that they are not temperamentally compatible.
Mr I has been previously married. He has two children S, who is 15 and L, who is aged 12. These children currently live with their mother in country Victoria. Mr I believes that L wishes to live with him in Darwin. He is currently negotiating with his former wife to this effect. If these negotiations prove fruitless, he intends to institute proceedings to change L’s residence. J has never met L. The father is concerned that the pressures of litigation in the I household and the possible introduction of another child, may be an additional burden for J, if he remains living in his current situation.
d) Discipline
The issue of discipline, particularly that provided by Mr I to J has loomed large in this case. Mr I and the father dispute the exact substance of the conversation that passed between them, when Mr I requested permission to discipline J. Mr I has said that Mr L gave him permission “to knock [J’s] fucking head off”. Mr L has stated that he would not have given permission to anyone to use corporal punishment on J, as he does not approve of such punishment, nor does he think, does Mrs I. Certainly this was not his intention when he wrote the letter to Mr I, authorising him to discipline J to “community standards”. I do not believe that it is necessary to resolve this dispute between Mr L and Mr I as to what was said. As I have already said, it is to Mr I’s credit that he spoke to Mr L about this difficult issue. It is clear to me that in the context of her pregnancy and her ongoing difficulties with J, Mrs I wanted her husband to play a larger role in disciplining J. I am satisfied that there was a misunderstanding between the two men as to the extent of the imprimatur given by Mr L to Mr I. The term “community standards” is an imprecise one. The telephone conversation between the two men was also somewhat vague, including as it did, discussion of Mr I’s resentment that his former wife’s partner physically disciplined his children. In those circumstances, I can readily see that the parties could have been speaking at cross purposes and, as a result, have misunderstood one another.
Regardless of whether or not there was a misunderstanding, Mr I genuinely believed that he had the father’s permission to use discipline in “the old style” on J and, as a result, Mr I smacked J on at least three occasions, including one occasion when J had misbehaved at school and the school authorities where considering suspending J because he had threatened another student. These smacks were apparently across the buttocks[6].
[6] Mr Ralph regards the appropriateness of smacking an 8-year-old boy across the buttocks at home for misbehaving at school earlier in the day as being highly questionable. In this regard see the family report paragraph 29.
Mr I describes the smacking punishment as being punishment of the last resort but does not rule it out in future, if J seriously misbehaved again. He believes that the threat of such punishment is effective in changing the behaviour of children. Mr and Mrs L are vehemently opposed to such punishment. There can be no doubt that J himself bitterly resents such punishment as this has been a consistent thread of his complaints to his father and Mrs L about his current living arrangements, from July of 2002 onwards. It is clear that J is capable of expressing his dissatisfaction at such punishment to those who are significant to him. His description of some of the punishments and his perception that they were unjust – the supermarket incident and the tree incident – correlate with Mr I’s descriptions of them. Certainly, prior to Mr I’s request to discipline J, such physical punishment was largely foreign to J. The resort to such punishment has deepened suspicion between the parties, particularly between the father and Mr I.
The whole issue of discipline is a difficult one. Again it is not my role to be the final arbiter in respect of such matters. For a variety of reasons, Mr and Mrs I have felt at the end of their tether, so far as J is concerned and have felt this smacking was their last resort to modify J’s behaviour, after other methods of discipline had failed. However, the overall impression I have is not that J is an indulged and manipulative child but rather is one who is troubled and resentful of the sudden imposition of a form of discipline that has been previously foreign to him, by a person who has only recently come to occupy a position of authority in respect of him. This cannot have made relations between him and Mr I any easier, particularly if they share somewhat different temperaments.
e) The family report and the evidence of Mr Ralph
The family report was prepared by Stephen Ralph. Mr Ralph is a psychologist. He holds both Bachelor and Masters degrees in psychology. He is currently the manager of mediation at the Darwin Registry of the Family Court. He has been employed as a counsellor by the Family Court for the past 13 years. In that capacity he has prepared literally hundreds of family reports. Prior to his employment with the Family Court, he was involved with child protection work with the relevant authorities in both New South Wales and Queensland. As a result of his professional experience, he has considerable experience in interviewing children. I found his report in this matter to be thorough and perceptive. He is undoubtedly a highly qualified witness. I accept his evidence and the conclusions that he drew from interviewing J and his parents.
I do not believe that Mr Ralph’s interviews with J can be described as cursory or lacking thoroughness. There were three such interviews between November 2002 and February 2003. Interviews occurred before and after J visited his father in Cairns and included an interview at his home in Darwin. Given his extensive experience in compiling family reports, Mr Ralph was well aware that the maturity and adjustment of J would be relevant considerations for the Court in assessing J’s views as to where and with whom of his parents he wished to live. Mr Ralph was also well aware that it was important that he explain to J, in terms that the child could understand, the purpose of the interviews with him and the use to which the information provided by J would be put. I accept that J understood the moment and significance of the various interviews with Mr Ralph.
The first interview occurred on the 18th of November 2002. J was brought to the interview in Darwin by his mother. Mr Ralph described a child who chattered openly and spontaneously with him. Certainly, J was not a reticent child, but rather one who was used to talking to adults. Mr Ralph could not discern any sign that the information that J gave him was as a result of coaching or suggestion by an adult. As J’s conversation with him was “free flowing”, Mr Ralph saw no signs of rehearsal and reached the view that the wishes expressed by J were his alone.
The child Mr Ralph saw in November was closely aligned with his father and clearly wanted to move to Cairns. Mr Ralph’s sense of J was that he was unhappy in Darwin and felt undervalued and unsupported there. Of great concern to Mr Ralph was his impression that J was displaying signs of “repressed anger and hostility”, particularly in terms of his relationship with Mr I. However, J did not describe only negative aspects in respect of his home in Darwin. He described his mother as “kind” and that she “loved him very much”. He also reported that he loved S “very much”. In respect of Mr I, J stated that he did “not like” him but qualified this statement by saying that he “liked” him “when he was playing with me” and “when he is not being mean”[7].
[7] See family report at paragraphs 41, 42 and 43.
As a result of all these matters, Mr Ralph was of the view that during the first interview, J was a child who wanted to convey his feeling about Mr I and his perceptions of his mother but above all wanted to convey his wishes, which were as follows:
“I want to go live with Dad very, very much… I don’t like living in Darwin… I don’t like living in a house of terror… everything in the house I am living in is terrible.”
He also indicated to Mr Ralph that he appreciated that his mother did not want him to go because she “loves me very much… but not as much as Dad”[8].
[8] See family report at paragraph 45.
Mr Ralph interviewed J again on the 12th of December 2002. The interview was initiated by the mother and apparently came about because she was of the view that J had changed his mind about where he wanted to live and also did not wish to go on Christmas contact in Cairns with his father. Clearly this was a radical departure from the views J had expressed earlier.
J prefaced his discussions with Mr Ralph on this occasion with the comment that “something bad had happened”. This apparently referred, in part, to a conversation J had earlier had with Mr I, in which Mr I had expressed to him his fear of losing a fourth child. This being a reference to S and L, who live with their mother in Victoria and the untimely death of S. This conversation had caused J to confide in his mother that he now wanted to remain in Darwin living with her.
Mr Ralph was troubled by this about face on J’s part and did not take it at face value. He proffered the following opinion in respect of it:
“The effect of Mr I’s disclosure has been to burden J with a sense of responsibility for how Mr I will feel if J were to reside with his father. Mr I’s disclosure would seem at best to have been a clumsy attempt to assure J of the importance he holds in his life. At worst it could be construed as an insensitive, deliberate attempt to undermine J’s wish to reside with his father.”[9]
[9] Family Report paragraph 56.
The third interview with Mr Ralph and J took place at J’s home in Darwin on the 13th of February 2003, following his return from a contact visit with his father in Cairns. At this interview, J reverted to his earlier view as to where he wished to live, emphatically stating that he wanted to live in Cairns with his father and have holiday contact with his mother and family in Darwin. However he also said that he was frightened to tell his mother of his true feelings.
One of the central issues of this case is whether J has sufficient maturity and insight to understand the ramifications of his wishes being put into effect and in particular that this will mean that he will be physically separated from his mother for long periods of time – his mother obviously having been the parent who has provided the majority of his care up to this stage – and also that it will mean that once again, he will have to accommodate radical change in respect of his school and home environment.
Mr Ralph was of the view that J did understand the ramifications of the matter. For obvious reasons, Mr Black, counsel for the mother, cross-examined him at length about this issue. Mr Ralph did not resile from this opinion, which I accept. Mr Ralph regarded J as a bright and articulate child with an inquiring mind – a view which conforms with that of each of the parties and their spouses in the matter. Further, Mr Ralph did not view J’s view as a naïve expression of his wishes. Mr Ralph confirmed my own impression of the matter that J has had ample opportunity to discuss issues relating to his care with the important adults in his life.
Although Mr Ralph conceded that the decision as to where he would live was a “very big decision” for a child of J’s age to make, he considered that J had the capacity to take into account the positive and negative aspects of the change from his won perspective and weigh them up for the following reasons. Firstly, J had considered the consequences of separation from his mother and S. He conceded that he would miss them. Mr Ralph considered that as a result of his life experience to date, J had an understanding of the consequences of separation. He was aware that he would be sad from time to time because of his absence from his mother and S. Secondly, Mr Ralph considered that J had had ample opportunity to assess what life would be like for him in Cairns and what expectations would be placed on him in his father’s household on a permanent basis. Accordingly, Mr Ralph did not believe that J was viewing life in Cairns through “rose coloured glasses”. Thirdly, Mr Ralph was of the view that from his own experience, J was well aware of what it was like to have a parent who was a residence parent and one who was a contact parent. As a result, he could well appreciate what it would mean for him to reverse the current roles of his parents. As a result, Mr Ralph concluded that J was aware that he would still be able to maintain his relationship with his mother, notwithstanding this change in her status.
In Mr Ralph’s opinion, although it would be an emotional wrench for J to change his place of residence, he would be able to deal with the change as a result of his past experience. Mr Ralph also believed that Mr L was sufficiently insightful to assist his son through this difficult transition. From my observations of Mr L, I agree with Mr Ralph’s assessment of him in this regard.
However, Mr Ralph’s evidence and report did not end with a reporting and consideration of J’s wishes alone. Mr Ralph considered that there existed a real possibility of J suffering a long-term emotional detriment if he remained living in Darwin and in particular that his future adjustment might well be impeded. Mr Ralph's sense of J was that he was a child who was not faring particularly well in his present environment. He was in trouble at school; found it difficult to make and hold friends; and felt unsupported at home. These, Mr Ralph believed, where not necessarily issues that could be resolved through counselling. The unhappiness and anger that Mr Ralph thought J harboured about his present situation caused Mr Ralph to believe that there was a “real potential for danger”, so far as J’s development was concerned, if he remained in his current position, such that in future J would have a real difficulty in finding his place in society. All these factors caused Mr Ralph to hold the view that the best outcome, so far as J was concerned, was to move to his father, where he felt supported and could have a fresh start.
At a deep level, Mr Ralph believed that J desired to be with his father. At the risk of grossly simplifying Mr Ralph’s comprehensive report, in essence he believed that J would be happier if he lived with his father and so would do better as he developed through adolescence.
In his formal report, Mr Ralph expressed the following opinion:
“ J has clearly been affected by the events surrounding the separation of his parents and the events that have followed. According to the reports of the parents, particularly the mother and Mr I, he is a troubled young boy who has considerable difficulty in forming and maintaining friendships. His performance and application at school has suffered and he continues to express a dislike of his current school. He has had difficulty in forming a secure, loving relationship with his stepfather and he is to some extent distrustful and resentful of his mother. He has been the focus of arguments between the significant adults in his life and has clearly been exposed to the views and beliefs of these adults in relation to the conflict. I believe he harbours a degree of anger and aggression as a result of his current family situation. At the same time he clearly aspires to live with his father and his family in Cairns.
If this is the decision of the Court that J reside with his father then J will be required to make the transition to the care of his father in Cairns. J has had extended holiday contact with his father and has clearly enjoyed this contact. The day to day reality of life in Cairns and the adjustment involved in adapting to a new school and new routines may confront him with some new challenges that he may not have expected. I believe, however, that with the support of his father and his family in Cairns that J can successfully make this transition. In my opinion he dearly loves his father and genuinely wishes to be with him.
If it is the decision of the Court then J is likely to feel uncomfortable and saddened by his separation from his mother and S, in particular. He has expressed a clear wish to return to Darwin to have contact with his mother and I believe that he would actively seek to maintain contact. I believe Mr L would support J in this regard. Ms I, however, would be deeply distressed by such an outcome and struggle to accept such a decision. Her reaction to such an outcome may well impact upon J’s adjustment and J may experience a degree of guilt and anxiety in his on-going relationship with his mother if this is not sensitively handled by Mrs I.
If it is the decision of the Court that J continues to reside with his mother then J is likely to be extremely disappointed by such an outcome. His future adjustment may be further impeded and it is possible that he may act out his anger and resentment at school and in the home and this would bring him into further conflict with others. This would lead to a further deterioration in his overall development and adjustment and raise serious issues in years to come as he approaches pre-adolescence.
It is my opinion that J’s best interests would be served by an order allowing him to reside with the father. I believe this will provide J with a chance to make a fresh start in an environment where he feels supported and valued. Although he will be saddened by separation from his mother (and that this will be difficult for all concerned) I believe that his current path is unlikely to provide him with what he needs to become a socially well-adjusted young man who is able to fulfil his true potential.”
The law applicable to parenting applications
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F 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 in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve J’s best interests.
Section 68F(2) factors
a) The child’s wishes
J is just over nine years of age. Clearly he is still young. He is still in primary school. In assessing his wishes in this matter, the Family Law Act requires the Court to consider his maturity, his level of understanding of the issues that concern him and any other factors that the Court considers relevant.
In this case I have had the benefit of a comprehensive report from Mr Ralph, detailing what he believe J’s wishes to be. I accept that report and in particular that J’s wishes as expressed in the first and third interview with Mr Ralph, were his uninfluenced and, more importantly, his considered decision as to where and with whom of his parent’s he wished to live. I place great store on Mr Ralph’s view that J has had ample opportunity to consider the pros and cons of both the environments in Darwin and in Cairns from his own point of view and experience.
Counsel for the mother is critical of the way in which J has been allowed to express his wishes and in particular they have come about as a result of either the tacit or actual encouragement of the father. I do not accept this criticism, which is clearly at odds with Mr Ralph’s opinion. True it is that J is only nine years of age. However, I do not accept that this necessarily means that he is incapable of making an informed decision as to his living arrangements. In H v W[10], a decision of the Full Court, Baker J summarised a body of psychological literature relating to children’s wishes and found that the research indicated as follows:
“…that children from age 7 are capable of expressing a choice between parents and of evaluating the respective environments which each has to offer. The weight to be given to these wishes will depend upon the children’s cognitive age and level of maturity in each particular case.
The research supports a rebuttable presumption that children of the age of 7 are capable of making a considered decision, a decision in which reason is employed. Having said that however, one must never the less be certain that the child’s wishes are free from the influence of others and that the child possesses a sufficient level of maturity to formulate a soundly bases wish.”
[10] H v W (1995) FLC 92-598 at page 81,966
In this case, all who have come into contact with him, regard J as an intelligent child, who is accustomed to conversing with adults. He is well aware of what it is like to have a “residence” parent and a “contact” parent. He has had several trips to Cairns. He has experienced what it is like to live in both Cairns with his father and in Darwin with his mother. Thus he is able to express a view based upon actual experience, as opposed to a hypothetical idea of what it would be like to live in a particular set of circumstances.
In H v W, Baker J made it clear that he was not advocating that a trial judge should automatically act upon the wishes of a child, since the Court’s duty is to act in the best interests of the child. He said that the goal was to take the wishes of children seriously, by giving them careful detailed consideration, not merely regarding them in a token manner or being dismissive of them.
In R & R: Children’s Wishes[11], the Full Court of the Family Court said as follows:
“There are many factors that may go to the weight that should be given to the wishes of the 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 syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
[11] R & R: Children’s Wishes 25Fam LR 712 at 724
Bearing in mind all the evidence in this case, including the fact that J has been actively advocating a change of his residence since August of 2002, I am satisfied that notwithstanding his age, his wishes should be given a deal of weight in this matter. Certainly, in this case, to go against those wishes would require the existence of good reasons[12]. I am not convinced that in this particular case there exists such good reasons.
b) That nature of the relationship of the child with each of the child’s parents and other significant people.
[12] In this regard see Re G: Children’s Schooling (2000) FLC 93-025
J enjoys a close and loving relationship with both his parents. I am also satisfied that he is close to Mrs L and is able to confide in her. This is evident from what occurred in June and September of 2002. Certainly J has no trepidation at the prospect of living under the same roof as her. J K is relatively close in age to J, being about two and a half years older. The two children have known each other for many years and have spent holidays together. Again I accept they have a close relationship with one another and that J is looking forward to the prospect of sharing a home with him.
I also accept that J loves his sister S and is deeply interested in her growth and development. However, for obvious reasons, the relationship between them is in its nascent stages. As a general rule, it is not desirable to separate siblings. I accept what was said by Nicholson CJ in H & H[13] and in particular His Honour’s reference to the article by Kaplan, Ade-Ritter and Hennon “Issues of Split Custody: Siblings Separated by Divorce”, in which the learned authors stated as follows:
“Further, during early childhood, children frequently spend more time interacting with their siblings than with their parents. The frequency of interaction with siblings does not diminish until emancipation in adolescence or early adulthood when the child leaves home. Therefore, sibling relationships constitute one of the more common interpersonal relationships among humans. Not only do siblings influence the development of each other’s socio-cognitive skills, but their relationship can be described as primarily a positive one, with high frequency of altruistic, affectionate, cooperative and concerned behaviour.”
[13] H & H (1995) FLC 92-599 at page 81,971
However, I must recognise the reality of the situation in this case. S is a baby. As a result, the level of interpersonal activity between her and J is at present necessarily limited. In addition they are half rather than full siblings. J, conscious that it will mean that he will be living away from S, has expressed a strong wish to live with his father. In all these circumstances, I do not believe that the relationship between J and S should necessarily be at the forefront of my deliberations. I do concede however, that if I do accede to the father’s proposal, it will mean that J will only have the opportunity to develop a relationship with S during periods of school holiday contact and, inevitably, it will mean that the relationship between them most probably will be less intimate than the one that would have developed if they were living under the same roof.
Although Mr I has been motivated by altruistic motives in respect of J, I am satisfied that at the present time the relationship between him and J is an uneasy one. Regardless of the attitude one may take to corporal punishment of the type imposed by Mr I on J, I have no doubt that J deeply resents punishment of this type and his resentment has caused problems in his relationship with Mr I. These problems have the potential to undermine J’s relationship with his mother as he feels unsupported and undervalued in his mother’s household at present. I accept Mr Ralph’s impressions of J in this regard. J’s frustrations may cause him to “act out” in future at both home and school, to his serious long-term detriment, as he embarks on adolescence. His unhappiness in his present situation and the damage this may cause him is one of the strongest factors that militate in favour of a change of residence at this stage.
c) The likely effect of any change in the child’s circumstances
The proposal advocated by the father represents a radical change for J. It will mean that he will live apart from his mother, who has provided the vast majority of his day to day care up to this stage. Inevitably, if there is a change in residence, J will miss his mother and she will miss him. However, I accept Mr Ralph’s evidence that J has some insight into the level of sadness that not only he will feel but so will his mother. Although he is only nine years of age, it cannot be said that he is naïve about the effect of this change on himself, yet he seeks it nonetheless. It is also clear that he is well aware of the reality of life for him in Cairns in his father’s household and is not looking at it through rose tinted glasses. Accordingly, he is not considering change in a purely hypothetical sense.
J has been through a lot in the last eighteen months or so. He has had to deal with his mother’s remarriage and all the implications that have flowed from that, as well as the tragedy surrounding S’s death. He has already changed schools and moved from Sydney to Darwin. Clearly, to date, he has had some difficulty in dealing with all these changes. I accept that inevitably there will be some difficulties in the transition from Darwin to Cairns. However, Mr Ralph’s assessment of the father, an assessment with which I agree, is that he is likely to be able to manage sensitively J through such a transition.
J is not faring well at school at the present time. In her evidence, the mother indicated that she is considering changing J’s school, once these proceedings have concluded and in the event that J remains living with her. Mr I also proposes introducing his twelve-year-old son L into the I family home. There is the prospect of the mother’s household being placed under some emotional and financial pressure as a result of Mr I’s likely application in respect of L. Accordingly, the mother’s future proposals in respect of J are not without some implications for change, so far as J is concerned.
d) The practical difficulties associated with contact
The parties have been managing arrangements in respect of contact for J for many years now. Since the end of 2001, they have been able to deal with the practical consequences of J moving backwards and forwards between Darwin and Cairns for contact. It seems that J is accustomed to travelling alone by air between these two locations. Notwithstanding which of their competing proposals is preferred, the parties agree that in future they should continue to share the costs of J’s travel between their two homes.
Accordingly, there appear to be no practical difficulties in respect of contact in this matter, which cannot be overcome by the parties themselves. It will be necessary, in due course, for me to make specific orders in respect of contact and to rule in respect of the parties competing proposals in this regard.
e) The capacity of each parent to meet the child’s needs, including emotional and intellectual needs
I am satisfied that both parents can provide for J’s needs. However, on balance, I believe that the father is better placed to provide for J’s emotional needs at the present time. Without wishing to attribute blame in any way, it is my impression that J is unhappy in his present circumstances. Accordingly, there is much to be said for Mr Ralph’s position that a move to Cairns will present J with an opportunity to make a new start.
However, nothing in these comments should be construed as undermining in any way my principal finding that both Mr L and Mrs I are loving and capable parents, who are devoted to obtaining the best possible outcome in life for J.
f) The child’s maturity, sex, background and other characteristics
I have already commented in some detail about J’s level of maturity and his intelligence. All agree that J is a sensitive and intelligent child. As a result, it is only appropriate that he should have some input into where and with whom he will live in future. For reasons I have already provided, I am satisfied that it is his strong wish to live with his father in Cairns.
g) The need to protect the child from physical or psychological harm
I am confident that neither parent would ever knowingly expose J to physical or psychological harm. In their evidence, the parties acknowledge that in the past they have had a similar attitude towards corporal punishment. It seems to me that in this area, Mr L on the one hand and Mr I on the other, have a different parenting style. Up until the advent of Mr I into his life, I accept that “smacking” as a form of discipline was largely foreign to J. For reasons already provided, I am satisfied that J deeply resents such punishment being imposed upon him by Mr I. Both Mr I and the mother believe that it was appropriate for such discipline to be imposed upon J as a last resort, after other means of discipline had failed. Mr Ralph has questioned at least one of these incidents of physical punishments. In all the circumstances of this case, it seems to me that J is a somewhat vulnerable child so far as such discipline is concerned. For that reason and in order to reassure both J and the other parties concerned in the matter, I propose to make an order restraining Mr I from physically disciplining J in future. I accept that this was the import of the letter that was sent by Mr I to Mr L in the early part of 2002.
h) The attitude to the child and the responsibilities of parenthood
Both parties stuck me as being decent people and caring parents, who were well aware of the onerous responsibilities incumbent in being a parent. I am satisfied that both have adopted the positions that they have in this case because they each genuinely believe that their proposals will best advance J’s welfare and allow each of them to be a better parent. In this regard, I do not believe that either of them has put their own needs before those of J.
i) Family violence involving the child or a member of the child’s family
There are no family violence orders in this matter.
j) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents’ circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
The period since J came to Darwin in September of 2001 has been disruptive for him. He has responded to those disruptions in his life by indicating that he wishes to live with his father in Cairns. Mrs I is not blind to his wishes in this regard, however she has stated that she believes that such a decision should be left until J is older, perhaps when he is aged twelve to fourteen. It was Mr Ralph’s impression of the matter that ultimately J will end up living with his father as this was his wish at “a deep level”. As far as Mr Ralph was concerned, the issue was how long this transition would take and how painful it would be for all concerned. In my view, the order that is least likely to lead to the institution of further proceedings in relation to J is to make the orders that the father seeks in respect of him.
Conclusions
For all these reasons, I am satisfied that an arrangement whereby J will go and live with his father is Cairns and will have regular contact with his mother during school holidays is the regime which is, on balance, likely to be in J’s best interests.
It is now necessary for me to delineate with some precision the orders that I believe should be made in respect of contact. In my view it is appropriate that J should spend half of each school holiday period with each of the two halves of his family. There should be telephone contact between J and his mother on the same basis as that currently enjoyed by the father, namely on two occasions each week. As I have already indicated, the parties agree that they should each share the costs of travel for J between Darwin and Cairns.
J’s family in Darwin includes not only his mother but also S and Mr I. I have already determined that Mr I should be restrained from physically disciplining J. However, I do not propose to impose any of the other conditions sought by the father in respect of the mother’s contact to J.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
Postscript
In his final submissions to me, counsel for the father relied on the well known authority of Rice & Asplund[14], in which the principle is laid down that the Court will not readily reopen parenting orders previously made unless there be good reason to do so.
[14] Rice & Asplund (1979) FLC 90-725
In my view, the present case was one that was such that the question of whether or not there had been a change of circumstances could be determined as a preliminary and discrete matter without the hearing of all the evidence concerned. In this case, although this decision was made after the horse had bolted, I have obviously taken the course approved by the Full Court of the Family Court in Bennett & Bennett[15] and determined this threshold issue, as to whether or not there has been a change of circumstances, at the same time as I have heard all the evidence in respect of the substantive issues raised by the parties. It is inherent from the view that I have expressed that I accept, notwithstanding the long standing nature of the arrangements for J’s care, that there has been a substantial change of circumstances since the consent orders were made in November of 2001 and it is appropriate to change them.
[15] Bennett & Bennett (1991) FLC 92-191
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 23 April 2003
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