L and L - [2005] FMCAfam 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & L

[2005] FMCAfam 101

FAMILY LAW – Children – contact – wishes of children.

Family Law Act1975

Applicant:

Respondent:

BAL

File No:

MLM 6982 of 2004

Delivered on:

2 February 2005

Delivered at:

Melbourne

Hearing Date:

2 February 2005

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Mr Fookes

Solicitors for the Applicant:

Holt and Macdonald

Counsel for the Respondent:

Appeared on her own behalf

ORDERS

(1)The children G born December 1995 and K born March 1998 do reside with their mother.
(2)The father have contact with the said children:
(a)During school terms, each alternate weekend from the conclusion of school Friday until commencement of school on Monday, commencing 4 February 2005.
(b)During school terms on each Wednesday from the conclusion of school until the commencement of school on Thursday.
(c)For half of any school holiday period. Failing agreement between the parties, the first half in even numbered years and second half in odd numbered years, commencing 5.00pm on the day school concludes.
(d)On Father’s Day from 10.00 am until the commencement of school the next day, in the event that this day falls on a non-contact day.
(e)On the father’s birthday for a period of 2 hours in the event that this day falls on a school day, and otherwise 4 hours.

(3)In the event that the mother’s birthday falls on a contact day, that contact be suspended for 2 hours on that day if it is a school day, and otherwise for 4 hours.
(4)In the event that Mother’s Day falls on a contact day, that contact be suspended from 10.00am on that day until the commencement of school on the following day.
(5)In the event that the father has contact in the first half of the Christmas school holidays, that contact be suspended from 5.00 pm Christmas Day until 5.00 pm Boxing Day.
(6)In the event that the father has contact in the second half of the Christmas school holidays, the father also have contact from 5.00pm Christmas Day until 5.00 pm Boxing Day.
(7)Either party may exercise telephone contact each second day between 7.00pm and 7.30pm when the said children are in the care of the other party for a period longer than 2 days.
(8)Neither party may remove the children from the South Gippsland area, or alter their place of schooling without the written consent of the other party or by leave of the Court.
(9)The matter be adjourned to 20 June 2005 at 10.00am for final hearing to determine property matters (with an estimated hearing time of 1 day).
(10)The parties attend a Conciliation Conference with a Deputy Registrar of the Family Court of Australia at the Melbourne Registry on 28 April at 2.15pm.
(11)Pursuant to section 65L of the Family Law Act1975 compliance with these orders be supervised, as far as practicable, for a period of 12 months by a Counsellor nominated by the Director of Court Counselling in the Melbourne Registry of the Family Court of Australia — and such Counsellor may report back to the Court from time to time at his/her discretion.
(12)The mother and father do:
a)attend and complete, as soon as practicable, an appropriate post separation parenting program ("the Program") at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
c)pay and otherwise be responsible for all costs associated with the Program; and
d)provide an appropriate certificate of completion of the Program to the other parties solicitors

THE COURT NOTES

(13)The father undertook to provide the mother with a motor vehicle in roadworthy condition within 21 days of the hearing date.
(14)The mother undertook to extend the father’s contact by a further night if requested by the children in consultation with the counsellor referred to in these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 6982 of 2004

Applicant

and

BAL

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application concerning residence and contact for two children of the parties, G and C. G is nine years of age and C is six years of age.
By the time the matter came on for trial today the issues had been narrowed considerably. The issue in dispute today was whether or not the contact that the children should have with the father should be each second weekend from Friday after school until Monday morning together with each Wednesday night, being Wednesday after school through to return to school on Thursday morning, or alternatively contact each second weekend in the same terms as set out above, together with contact on the Wednesday night following the weekend and Monday and Tuesday nights in the following week.
The father seeks orders in terms of the latter proposal, the mother in terms of the former proposal. The latter proposal comes from a family report prepared by Ms B, which was compiled after interviews with both parents and the children. The former proposal comes from the mother after she spoke to the children following receipt of the family report, seeking their preferences about what contact arrangements should be in place.
It is important to examine in some detail how each of these proposals was reached. In the family report the report‑writer recounts her discussions with the children. She says that:
[G] stated that she though she would like an extra night with her father, as long as he did not get cross with herself and [K]. [K] nodded her head at this suggestion. [G] added that she wanted to reserve the right to come home to her mother’s house if she chose to.
The counsellor again repeated these words in the last paragraph of her report when she said:
Both girls indicated they would like to spend one extra night at their father's house, provided he did not “get cross” or “yell”. They spontaneously reiterated this request several times over the course of interviews, and there was no indication they had been coerced into this position. [Mr L] informed the writer he would like the girls to alternate weekly between residences. Although this request is understandable most significantly it is not the wishes of the girls at the present time. Furthermore, it seemed to the writer that whilst the girls are displaying symptoms of insecurity and stress, a major change in contact might not be in their best interest.
The symptom of stress that is referred to in that paragraph is bed‑wetting, which appeared to have been a fairly significant problem for the children from separation, at least until the time of the interim orders. Separation occurred in April of last year and the interim orders were made by me in September of last year. It appears that since around October last year the bed‑wetting problem has reduced considerably. One suspects that this is as a result of the certainty provided by the parents having interim orders with respect to contact and a regime to follow which did not involve them seeing each other; however there is no clear evidence on that issue.
Unfortunately the family report writer was not able to recount with any clarity precisely what the children meant when they referred to ‘one extra night’ at their father's house. She took it to mean an extra night per week and crafted her proposals with that in mind. The mother, having spoken to the children, understands it to mean one extra night per cycle, which is a fortnightly cycle.
The children were not available today to speak to the family report writer again, living some hours drive from Melbourne.
In the circumstances the unfortunate situation is left that it is not clear from the family report writer just what the children meant. It may be that the children do not have sufficient maturity and understanding to clearly express themselves with respect to times and time frames (the family report writer referring to some difficulty that the children have with discussing time frames). Some support for this was also provided in the mother's evidence. However, one must bear in mind that the oldest child is nine years of age and, for good reasons apparent from the facts of this case, appears to be a mature child. One would expect that she would have a reasonably clear idea of what her fortnightly roster or regime would be.
I accept that she is a mature girl and indeed is probably mature beyond her years and has probably taken on more of a protective role for her younger sister C than would be preferred in an ideal parenting situation.
The children and the family have suffered a great deal of hardship over the years. The mother has, in years gone by, had mental health issues, which appear to be well managed now. However the children continue to have some concerns about the mother's health. The father, it appears on the evidence, has been more vocal in the home than the more placidly natured children found easy to cope with, given the children's references to a preference that he not yell at them so much.
The parties jointly have struck terrible financial difficulties, having entered into a business, DD, and set up a shop in circumstances where it appears, through no fault of theirs, the franchisor has gone into receivership and it is likely that the result will be that they will have no assets but simply be owing money.
All of these things have put tremendous pressure on this family and these children. The separation has also been acrimonious, which would have added to this pressure.
However, I am heartened by the fact that the children's bed‑wetting problem seems to be subsiding and the parents are clearly moving forward and doing their best to put the children's needs first and not arguing for outcomes that are clearly outside the thrust of the family report.
It comes down to a question of effectively one extra night per fortnight. It is appropriate that I consider the principles set out in the Family Law Act and in particular the factors set out in section 68f of the Family Law Act, which provides the matters I must take into account in determining what are the children's best interests in this case.
The first factor is the expressed wishes by the children. The wishes expressed to the mother were done so after the family report came to hand. The mother had received the report for a week and was initially not entirely happy with the report as it recommended a contact regime greater than what would be her personal preference of only each second weekend. She says that she is now accepting of that and that the children have the desire for a greater amount of contact and that their needs must come first.
In order to have the children disclose to her what their true preferences were she engaged them in an arrangement referred to by her as ‘disassociation’ or ‘dissociative technique’ whereby they place sunglasses on so they can feel free to speak directly about themselves in what the family report writer described as a ‘role play type situation’. It is not an entirely unusual technique for having children speak freely. However, I accept the submissions of Mr Fookes for the father that one would have reservations about accepting the validity of the comments of the children in that situation. However they were still recounting to the mother a preference for a greater amount of time with the father. I am left in the position that the family report writer has not clearly elucidated what the children's expressed preference was (although enough information to indicate that the children have a preference) and must take into account the less than perfect methodology in eliciting that preference by the mother.
G is nine and has taken on a role of a protective nature to her sister. She is clearly a child who experienced some degree of anxiety but has a capacity for being protective of those around her. I note in the evidence that she was proud that she had the 000 number up on the wall by the phone so she could ring it if the occasion arose. She has expressed a view on contact being invited to do so. That view has a basis which seems to have been set out in the family report writer's report. The precise nature of that view I do not have evidence of but it is a view that, it appears to me, ought to be respected by the court in the context of this case and the relatively small differences in time overall that the children will experience with each of the parents. I am inclined to the view that I should err on the side of caution in the sense of not pushing G beyond her views and that in that regard some weight should be given to her views as expressed to the mother.
The next factor I must consider is the nature of the relationship of the child with each of the parents. It appears clear that the children dearly love both parents and the parents dearly love the children. They would all like to spend more time together and, as is not uncommon for young children, their ultimate preference would be to return to an intact family and not separated parents. Sadly that will not come about in most cases, as it is not possible that that could come about in this case; but it does demonstrate that the children clearly love both parents.
The next factor is the effect of any changes on their circumstances. In this case, fortunately, they have regular contact with both parents. The proposal of the mother has the practical benefit that the children will be aware it is each second weekend and every Wednesday night. The proposal of the Family Court counsellor, whilst it provides slightly more time, provides for a different regime each week of the two‑week cycle. It also provides for a larger amount of time coming out of the middle of a school week which, as the children become older, may have more impact than when they are younger.
The next factor is the practical difficulty and expense of contact. In this case that does not seem to be a significant factor in that contact is now able to be arranged largely through drop off and pick up at the school without any significant difficulty to the parties and in circumstances where they do not have to deal with each other in front of the children.
The next factor is the capacity of each parent to provide for the needs of the children. There are some issues for concern on the part of both parents with respect to their capacities to meet the needs of the children. Whether it be because of their own personal capacities or the imposition of the sad events that have struck this family over time the capacity to meet those needs was not sufficient at the time when the children reverted to significant bed‑wetting. That time, though, now seems to have been passed. I am of the view that the parents would be further assisted by a parenting program and supervision of contact pursuant to section 65l by someone from the court counselling section because it appears to me that both parents are committed to the children and have improved their parenting capacity over time and will be committed to continuing that improvement for the benefit of the children and therefore are likely to take full advantage of counselling under 65l.
I take into account the children's maturity, sex and background. In this case they are young girls. They come from a fairly average Australian background with parents that must work for a living and who have worked hard in the past and will probably work hard in the future in jobs or small businesses, to provide for them. They are fortunate that they have extended family to rely upon and there is no dispute about the extent of their connection and support from extended family.
The next factor is the need to protect the children from physical or psychological harm. In the context of the dispute in this case either version of the orders is going to provide a similar level of protection in that regard. It can be said that a very minor weighting might be given to the mother's version of contact arrangements because of the slightly greater regularity of each Wednesday compared to the changing routine but the matter would be slight indeed.
The next matter is the attitude to the child and responsibilities of parenthood. For the reasons set out above I am of the view that the parents now are displaying appropriate attitudes to parenthood, acknowledge their responsibilities, and are committed to improving their parenting and their relationship with each other to the extent that it is necessary to assist the children.
The next matter is any family violence. It is not alleged that there is physical violence. It does appear that the parties certainly had verbal disputes of a high level. However the arrangements are such now that the children will not in a position to observe such things into the future. The family report writer appears confident that the father, to the extent that he may have engaged in some yelling, is embarking upon a parenting regime that will resolve those potential issues. There are no family violence orders that are currently in force.
It is preferable to make an order that is least likely to lead to further proceedings. I suspect that in this case the reality is the children, as they grow older, will probably exhibit preferences one way or the other as to their living arrangements. I can only hope that rather than having to return to this court for me to go through this process of trying to divine these things through family report writers and evidence of the parties, the parties can move towards a situation where the children can feel a greater freedom in moving back and forth between the households as they grow older, so that they can spend time with one or the other parent as they wish and as might meet their needs, depending upon the particular phase of their development that they are going through.
Similarly I would hope that with some assistance over the next year the parents could increase their communication enough to ensure that a freedom of the children to move between the households does not become a method for the children to manipulate their parents once they become a little older again and of an age where children become aware of their capacity to manipulate parents.
There does not appear to me to be any other significant factor or circumstance that is particularly relevant in this case. Having regard to all of the matters referred in evidence I have come to the conclusion that the best interests of the children will be met by orders substantially in accordance with those sought by the mother with notations as to:
a)the joint undertakings of the parties about motor vehicles and the provision of a motor vehicle to the mother;
b)and a notation of the mother's statement that she intends to respect the views of the children with respect to the extra night per fortnight if communicated to her through the counsellor that will be supervising contact.
It may be that all of this will work out fairly neatly with the sale of the business and the change of working arrangements for the father, in that this will still take a couple of months to take place and by that time there should have been some experience of the current regime and some involvement of the counsellor from Family Court counselling.
I therefore make orders in the terms indicated.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riehtmuller FM

Associate:

Date: