Lang and WEN
[2009] FMCAfam 940
•4 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANG & WEN | [2009] FMCAfam 940 |
| FAMILY LAW – Parenting – child with insecure attachment to primary carer – insecurity caused by absences of mother – risk of absences reoccurring. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR LANG |
| Respondent: | MS WEN |
| File Number: | MLC 2552 of 2009 |
| Judgment of: | Phipps FM |
| Hearing dates: | 19 & 20 August 2009 |
| Date of Last Submission: | 20 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Combes of Counsel |
| Solicitors for the Applicant: | Jonathan Wong Lawyers |
| Counsel for the Respondent: | Ms A. Carter of Counsel |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
That the applicant husband and the respondent wife have equal shared parental responsibility for the child of the marriage [X] born in 2004.
That the child live with the applicant husband.
That until the commencement of the school year 2010 the child spend time and communicate with the mother as follows:
(a)each week from 12.00 noon Friday until 4 p.m. Sunday;
(b)for one half of the September and Christmas school holidays as agreed, but if not agreed the first half;
(c)
at Christmas 2009 as agreed, but if not agreed the child shall spend from 4 p.m. on 24 December 2009 until 12 noon on
25 December 2009 with the wife and from 12 noon on 25 December 2009 until 4 p.m. on 26 December 2009 with the husband;
(d)
On the wife’s birthday as agreed but if not agreed and the child is not otherwise spending time with the wife from 10 a.m. until
4 p.m;
(e)by telephone at all reasonable times;
(f)at other times as agreed;
(g)The time under paragraph 3(a) be suspended during the September and Christmas school holidays;
(h)That for changeover the parties exchange the child at the husband’s home at the commencement of the wife’s time and at the wife’s home at the conclusion of the wife’s time.
From the commencement of the school year 2010 the child spend time and communicate with the mother as follows;
(a)Commencing with the first weekend of each school term in a three-week cycle:
(i)for the first two weekends of each cycle from Friday after school until Monday before school or Tuesday if Monday is a non-school day;
(ii)
on the Tuesday of the third week from after school until
6 p.m.
(b)for one half of term and Christmas school holidays as agreed, but if not agreed the first half;
(c)at Christmas as agreed, but if not agreed;
(i)
for Christmas 2010 the child shall spend from 4 p.m. on
24 December 2010 until 12 noon on 25 December 2010 with the husband and from 12 noon on 25 December 2010 until
4 p.m. on 26 December 2010 with the wife and each alternate year thereafter.
(ii)
for Christmas 2011, the child shall spend from 4 p.m. on
24 December 2011 until 12 noon on 25 December 2011 with the wife and from 12 noon on 25 December 2011 until
4 p.m. on 26 December 2011 with the husband and each alternate year thereafter.
(d)on the child’s birthday as agreed and if not agreed from 1.00pm to 6.00pm on a non-school day and from after school to 7.00pm on a school day. If the child’s birthday falls during mother’s weekend the time is suspended from 2.00pm to 6.00pm on a Saturday and from 4.00pm on a Sunday;
(e)
on the wife’s birthday as agreed but if not agreed and the child is not otherwise spending time with the wife from 10 a.m. until
4 p.m. on a non-school day and from after school until 6 p.m. on a school day;
(f)on Mother's Day as agreed but if not agreed and the child is not otherwise spending time with the wife from 10 a.m. until 5 p.m;
(g)by telephone at all reasonable times;
(h)at other times as agreed;
(i)if Fathers’ Day falls during the wife's weekend the child's time with the wife is suspended from 10 a.m. on Sunday unless otherwise agreed;
(j)if the Father's birthday falls during the mother's weekend, the time is suspended from 12 noon until 4 p.m. unless otherwise agreed;
(k)He time under paragraph 4(a) is suspended during all term and Christmas school holidays.
That for changeover the parties exchange the child at the husband’s home at the commencement of the wife’s time and at the Husband’s home at the conclusion of the wife’s time.
IT IS NOTED that publication of this judgment under the pseudonym Lang & Wen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2552 of 2009
| MR LANG |
Applicant
And
| MS WEN |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband and wife have one child [X]. They disagree on her living arrangements.
The husband's proposal is that [X] live with him and spend two weekends out of three from Friday after school to Monday before school with her mother, and half school holidays once school commences. [X] is in kindergarten this year. The current arrangement is that she spends from 12 noon Friday until 4 p.m. Sunday each weekend with her mother. The father proposes that should continue until the end of the year. He proposes that [X] spend half school holidays with her mother and that arrangements be made for special days.
The mother proposes that [X] live with her and spend alternate weekends from Friday afternoon to Sunday afternoon and half school holidays with her father. She proposes arrangements for various special days.
Issues
The issues are:
a)[X]’s relationship with each of her parents
b)the capacity of each parent to care for [X]:
c)the effect on [X] of any change in her living arrangements
d)family violence
The issues must be considered in the context of the relevant provisions of the Family Law Act 1975 (Cth). The best interest of the child are the paramount consideration (s.60CA). The objects of the parenting provision of the Family Law Act are contained in section 60B and the child's best interests must be considered with these objects in mind. Considerations for determining a child's best interests are contained in section 60 CC.
Section 61 DA provides that a there is a presumption that equal shared parental responsibility is in the best interests of the child. The presumption is rebuttable, but if an order for equal shared parental responsibility is made s.65DAA requires the court to consider whether equal time, or if not equal time, substantial and significant time with each parent is in the child's best interests and reasonably practical. Section 65DAA(5) prescribes considerations for determining whether an order is reasonably practicable.
Background
The wife was born in Hong Kong in 1980. She is an only child. The husband was born in Hong Kong in 1976. He has an older sister who lives in Australia with her husband and their two children aged 3 and 4. The husband has lived with them since separation.
The wife came to Australia in 1997 and is a permanent resident. The husband came to Australia before the wife and is an Australian citizen. The parties married in Hong Kong in 2003.
The one child of the marriage, [X] , was born in 2004.
The parties and [X] lived in the husband's mother's house in [W] until February 2008. So too did the husband's sister and her family, which included [X]’s two cousins aged three and four.
In February 2008 the parents and [X] moved to a rented house in [D]. Rooms in the house were occupied by friends, including one or two families.
About this time the relationship between the parties began to deteriorate. The husband alleges that the wife began going out at night drinking and gambling. The wife alleges that the husband was violent and controlling and that he drank and gambled.
The parties separated in April 2008 following an argument. The wife alleges the husband was violent and struck her by throwing a clock at her causing injuries to her face. She asked him to leave. The husband alleges that the wife came home drunk and that she threw things at him.
The husband, with the mother’s agreement, took [X] overseas for one month in May 2008.
Otherwise, the husband went to live with his sister. He returned to the house where the wife and [X] were living on a frequent basis, the frequency being contested. He spent a significant amount of time with [X].
The husband returned to live with the wife and [X] early in August. On 20 August 2008 they separated finally. Her husband says that the wife arrived home at about 6:30 a.m. intoxicated and belligerent. He says she abused him and threw objects at him and threatened him with a knife. He called the police. The wife agreed to leave and the police applied and obtained an interim intervention order naming the husband and [X] as the aggrieved family members.
The police withdrew the application when the husband did not appear at the hearing.
Between 20 August 2008 and 26 August 2008 the wife did not see [X]. She filed an application in the Family Court and on 26 August 2008 Senior Registrar Fitzgibbon ordered ex-parte that [X] not be removed from Australia and her name be placed on the airport watch list.
Shortly after the wife collected [X] from childcare. The husband did not dispute the new living arrangements. [X] lived with her mother and spent time with the husband regularly on weekends. The wife discontinued the Family Court proceedings. At this time the husband was living with his sister and, since he worked full time until fairly recently, much of [X]'s care was undertaken by his sister.
In August the wife commenced an [omitted] course. She received Centrelink payments and had a number of part-time jobs. She relied on her mother to assist with the care of [X]. After separation the wife had a boyfriend, but that relationship ended, the wife says, towards the end of 2008.
In December 2008 the wife’s mother planned to go to Hong Kong to be with her elderly and sick parents. The wife asked the husband to care for [X] for three months, and she signed a written statement to that effect. While the wife says the arrangement commenced on 2 January 2009, the husband says [X] has been substantially living with him since early December. The written statement is dated “12-01-08”and says that the husband is to look after [X] from 2 January 2009 until
31 March 2009.
The handwritten note the wife signed said that [X] was to live with her father for three months. The time has continued until now. The husband commenced this application on 26 March 2009. The wife and spoke to [X] once on the telephone and saw her once prior to the first court date on 4 May 2009. On that day interim consent orders provided for [X] to live with the husband at the home of his sister and to spend time and communicate with the wife each week from 12 p.m. Friday until 4 p.m. Sunday. The weekends commenced on the first weekend after 4 May and have continued.
The mother lived in the house in [D] until February 2009 when she moved to her mother’s home. The mother had to move because the rent was not being paid on the [D] home.
Relationship with parents
This consideration takes in both the primary consideration of the benefit to a child of a meaningful relationship with both parents and the additional consideration of the child's relationship with each parent and other people. The other people in this case are, on the wife’s side her mother that is the maternal grandmother and on the husband’s side his sister, that is the paternal aunt, her husband and her two children. The consideration of the likely effect on [X] of a change in circumstances can be dealt with together with these considerations.
Ms Beatrice Melita prepared a Family Report. She describes her observation of [X] with each parent. She concluded that there are two major psychological issues in determining where [X] is to live; one, her primary attachment needs; and two, the need for a safe, stable and predictable environment where her physical and emotional needs are met.
Until separation [X]'s primary attachment was with her mother.
Ms. Melita concludes and the evidence of the parties relationship shows this is correct.
Ms. Melita then says that since around the time of separation [X]'s attachment has been disrupted. She has become uncertain and insecure about her mother and appears to have an insecure attachment to her mother. Ms. Melita concluded this from the observations she made of [X] with both the mother and the father and which she describes in the report.
Ms. Melita says it is not known whether [X] had an insecure attachment with her mother prior to the events commencing in May 2008. Ms. Melita says that from [X]'s perspective she has left by her mother, or has not been with her, on several occasions since May 2008. Ms. Melita describes what occurred. None of it is disputed. [X] was away from the mother for one month in May 2008 when she was taken overseas by her father. Ms. Melita describes the August events in this way. She says that after the altercation and police involvement on
20 August 2008, which [X] observed, her mother disappeared for around six days and there was no contact during that time. Ms. Melita says that while later living with her mother [X] spent time with her grandmother and at least one other person as well as spending time with her father. During the period she was with her father her aunt provided much of the primary care until her father gave up his full-time job in about the middle of 2009. [X] again did not her mother from January until May 2009.
Ms. Melita says that the relationship which [X] has with her father is more secure. Ms. Melita says [X] was not primarily attached to her father but has developed a very good attachment with him and it is becoming more important. The sense of security in the care of her father is likely to have been developed since the child has been in his care. Ms. Melita described it as consistent with the aunt’s description of the routine and care arrangements at his home.
Ms Melita says that both parents are responsible for the child's emotional insecurity. [X] needs stability, security, predictability and a loving environment and any further major disruptions to [X]’s care could be very detrimental to her development.
Ms. Melita says that it is important that the future is as stable as can be managed in the circumstances and therefore shared care is not in [X]'s best interests. [X] is still primarily attached to her mother but it is an insecure attachment. Ms Melita’s conclusion is that in order to repair [X]’s relationship with her mother, and for [X] to develop a more secure attachment, [X] must feel that she is secure in the care of the mother and that her mother is consistently reliable and available to her.
In her report Ms. Melita recommends that [X] lives primarily with her father and spend time with her mother as much as possible without creating a disruption to her primary care. She said there seems a greater capacity to provide those needs in the father's home. She said that the current arrangements, that is every weekend with her mother, was appropriate until the end of the year and then [X] should spend two out of three weekends from Friday after school until Monday morning with her mother and school holidays should be shared equally.
In her oral evidence Ms. Melita said that if she could be sure that the wife would not leave [X] again, [X]’s best interests would be served by living with her mother. However, if there was a separation as there had been in the past, that would be very harmful for [X]’s development. Because of the risk of that happening her recommendation was that [X] live with her father, but the decision was finely balanced.
The wife says that her decision to leave [X] with the husband in January was because she was working and studying and her mother was going overseas. When interviewed by Ms. Melita she said that her relationship with her boyfriend ended last year and she is now living with her mother and her circumstances are stable.
Ms. Melita considered the reasons the wife gave for asking the husband to care for [X] for three months were not transparent and she had to ask many questions to understand the wife’s reasons.
[X] saw her mother only briefly until orders were made in May 2009. The wife says the husband would not let her see [X] while the husband says the wife did not try to. When [X] was left with her father in January there were no specific arrangements for her to see [X]. This is a criticism of both parties, but in assessing the risk of a further break in the care of the [X] by her mother the mother's lack of detail about her efforts to see [X] are relevant.
The father taking [X] to China in May 2008 was by agreement and is understandable. Both parties have family members in China. The separation between [X] and her mother in August was not voluntary on the part of the mother. The mother took steps to recover [X], including starting court proceedings.
The much longer separation between January and May 2009 was initiated by the wife. The obvious inference is that she felt she could not cope with caring for [X]. Apart from the reasons she gives, working, studying and the absence of the mother, her accommodation position became unstable since she had to leave her rented premises in February. She now lives with her mother and relies on her to assist in caring for [X].
These occurrences are recent. There is a risk that they will be repeated if [X] is living principally with her mother. Ms Melita’s conclusion that there is a greater capacity to provide stability for [X] in the father’s home, and that [X] can then repair her relationship with her mother is supported by what has happened since the orders in May. [X]’s living arrangements are stable and she is repairing her relationship with her mother.
This is not the optimum arrangement. The optimum arrangement is that she be living with her mother. What is not desirable is that [X] resume living full-time with her mother and that her mother then disappear again out of her life for a time. That would be harmful to [X]'s development. It would be better for [X] that she live with her father than this happen.
The risk is sufficiently strong that [X]'s best interests require that that risk be avoided, which means living with her father.
Capacity for care and violence
These two considerations can be dealt with together.
Each alleges late nights, drinking gambling and violent behaviour against the other. The wife alleges that the husband has little ability to care for [X]. The husband says that the wife goes out partying and lives without care for others.
The husband, until August 2008, worked as the director of a [hospitality business]. He worked at night finishing in the early hours of the morning. The wife says he would arrive home and then sleep until the afternoon and that he had little to do with [X].
After August 2008 the husband has worked [in the hospitality industry]. Recently he has reduced it to weekends when [X] is with her mother. He says he intends increasing his work and starting a business next year, but says he would work hours which allowed him to care for [X].
He acknowledges that he drank, and said that was part of his work. He had to drink with the clients. He acknowledges a conviction for driving with a blood-alcohol content over the legal limit. He says that at times he would sleep at the [business omitted] because he had been drinking, and so he would not drive home.
The wife acknowledges that she has gone out on social occasions. She says she is a social drinker. What is clear is that she has been able to do this because she and [X] have always lived in a household with others, either family members or with another family living in the same house.
Each denies drinking to excess or being at fault in any altercation. The husband says that in the incident in April 2008 the wife was throwing objects at him and he picked up a clock and threw it but not at her. He says it hit a door and the cover bounced off and hit the wife. The wife says he threw the clock at her. This is the more probable explanation.
In the incident in August the wife had been at a social occasion where she had been drinking. She denies she was affected by alcohol. The husband says he was not. The wife says the husband called the police so that he could have her removed. The husband says he had to call the police because of the wife's violent and drunken behaviour
The police removed the wife and applied for an interim intervention order against her The husband took no steps after the wife took [X] into her care by collecting [X] from child care a few days later. Nor did the husband appear at the return data of the application for an intervention order. On the wife's side the submission is that this shows that the husband did not consider the incident serious and that the wife's version should be accepted.
Neither called police evidence about this incident. The probability is that the attending police offices assessed that the wife was affected by alcohol and behaving aggressively, and so they exercised the power they have under State family violence legislation to remove her
Each alleges that the other gambles. Records from the husband’s bank account show him withdrawing money at Crown Casino. He acknowledges that he did attend at Crown Casino with friends and play on the gaming machines. The wife too, acknowledges that she occasionally used gaming machines. The evidence does not suggest gambling by either party to an extent that it might affect their ability to look after [X], either because of the amount of money lost or the amount of time spent.
The wife says that the husband lacks basic parenting skills to care for [X]. The husband is critical of the wife's care. The one thing which concerns the husband particularly is that he does not believe the wife has the ability to help with [X]’s education.
Clearly there was conflict between the parties towards the end of the marriage. There was some violence but associated with that conflict. It was not such that it is likely to be repeated, nor does it reflect on either party’s ability to care for [X]
The husband acknowledged to Ms Melita that the wife had been a good mother, that [X] loves and misses her mother and that [X] needs to see her mother on a regular basis. His criticism of the wife was that he believed that the mother’s lifestyle and alcohol consumption had not changed, that her lifestyle is unstable and she relied on other people to care for [X].
It is correct that while [X] lived with her mother in the past other people have assisted with the care of [X]. The father also relies on others. He lives with the paternal aunt, her husband and two children aged five and three. He works part time now at weekends when [X] is with her mother. He says that he intends looking for another business next year but that he can adjust his working hours so that he can care for [X]. He relies now on the paternal aunt to help with caring for [X], and will rely even more in the future if [X] lives principally with him.
The wife now lives with her mother, and while that continues she will have the mother's assistance. However, while the husband's criticism of the wife's unstable existence is probably overstated, clearly there has been instability in the mothers living arrangements in the past 12 months.
The husband will rely to a considerable extent on his sister in the care of [X], particularly if he resumes working full time, which he says he will do. However, the day-to-day care of [X] in her aunt's household will be stable. There is a risk that may not happen in the mother’s house.
Parental responsibility
There is some evidence of violence, but not sufficient to rebut the presumption, and there are no other matters which lead to a conclusion that equal shared parental responsibility is against [X]'s best interests.
It is not in [X]'s best interests that there be equal time. Ms. Melita's opinion makes that clear. Substantial and significant time beyond what Ms Melita recommends is against [X]’s best interests because it would prejudice the need for security and stability in [X]'s life.
That [X] did not see her mother from January to May raises the question of the husband’s willingness to promote [X]’s relationship with her mother. The husband has complied with orders since May. He is likely to comply in the future.
Conclusion
The need for stability, security and predictability for [X] will be better met if she lives with her father and spends time with her mother as he proposes with the addition of time for a meal after school in the third week.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Paul Moss
Date: 3 September 2009
0
0
1