M and G
[2002] FMCAfam 28
•25 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & G | [2002] FMCAfam 28 |
| CHILD – Residence – child’s wishes – poor school attendance – frequent dwelling changes – drug tests. B & B Family Law Reform Act (1997) FLC 92–755 Family Law Act 1975 ss.65E, 68F(2) and 60B(2) |
| Applicant: | T J M |
| Respondent: | A P G |
| File No: | ZM 3018 of 2002 |
| Delivered on: | 25 February 2002 |
| Delivered at: | Melbourne |
| Hearing Dates: | 20, 21 & 22 February 2002 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Ms James |
| Solicitors for the Applicant: | Pearsons |
| Counsel for the Respondent: | Ms Goldsworthy |
| Solicitors for the Respondent: | Price Higgins |
| Counsel for the Child Representative: | Mr Holmes |
| Solicitors for the Child Representative: | Donald S Lampe |
ORDERS
THAT the application of the Applicant Father filed on the 24th October 2001 be dismissed.
THAT the Orders of the Family Court of Australia made on the 4th October 1996 remain in full force and effect in relation to the Child
J L M born 15th January 1993 with the following changes:-(a)Paragraphs 4(d), 4(f) and 8 be discharged and replaced as follows:
(i)From 5.00pm on Christmas Eve until 10.00am on the 2nd January 2003 and each alternate year thereafter;
(ii)For a period of four weeks in block holidays of two weeks each in every year such dates and times to be agreed between the parties;
(b)That the weekend contact referred to in paragraph 4(a) of the Orders made on the 4th October 1996 shall be suspended during block holiday contact and from the 24th December until the 2nd January of every year such weekend contact resuming a fortnight after the conclusion of the Father’s block 2 week holiday contact or from the 3rd January or the weekend following the conclusion of the Mother’s holiday contact.
(c)That for the purpose of contact changeover the Father collect the child at the commencement of contact and the Mother collect the child at the conclusion of contact.
THAT for the period of 3 months from the date of this Order the Mother undergo supervised drug tests by urine analysis to be randomly undertaken at the direction of the Child Representative.
THAT for a period of 3 months from the date of this Order the Mother advise the Child Representative in writing of each school day the child does not attend school and the reason for non attendance.
THAT for a period of 6 months the Child Representative have liberty to apply in respect of these Orders and the Orders of the Family Court of Australia made on the 4th October 1996.
THAT unless otherwise ordered the Child Representative be discharged on the 25th July 2002.
THAT otherwise all applications be dismissed and removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 3018 of 2002
| T J M |
Applicant
And
| A P G |
Respondent
REASONS FOR JUDGMENT
Introduction
This application concerns residence of a child J L M, born on
15 January 1993, now aged nine. The parties commenced a relationship in 1989 and have never married. The father was born on
4 January 1971, his age 31, and the mother born 20 December 1970, her age 31. They separated, according to the father in 1994, the mother 1993. Orders were made by consent in the Family Court of Australia on 4 October 1996 that the child reside with the mother and that there be alternate weekend contact with the father, a block-holiday contact period of four weeks and contact on specific special days.
While the parties were together they lived in Hallam and Narre Warren, first in a rented house and then in a caravan owned by the mother. Following separation the mother moved to the Geelong area where her mother lives and where the mother had grown up. The mother lived with the child in a caravan first in her mother's back yard and then in caravan parks, two in total, and then in a series of residences. She and the child have had nine different places of residence since moving to Geelong and there may be another in the near future. The father now lives in B in a house he has purchased.
The father has had another relationship since separation with a Ms O. There is one child of that relationship – T B M, born on 15 April 1998. That relationship has ended but the father and Ms O remain on good terms. She gave evidence in support of the father's application for residence and evidence that she was available to assist in the care of the child if the child was residing with the father. She works for one and a half days a week in a bank and lives reasonably close by in H. The father has full-time employment as a panel beater. His employer allows him flexible working hours to fit in with contact and the father says it will allow him flexibility to deal with the child if he has residence.
The mother, until mid-2001, worked part-time as a contract cleaner. Since then she has not worked and relies on social services and child support payments from the father. She gives ill-health as her reason for ceasing employment. She says that she has been diagnosed as having depression by her local doctor and prescribed Favorin. She has had another relationship, of about three and a half years since separation, which has ended. She has a friendship with a school friend, Mr T P. She says they are not girlfriend and boyfriend and have not lived together in any form of relationship. The nature of her relationship with Mr P is a matter of dispute.
Following the order made on 4 October 1996 contact proceeded more or less in accordance with the order, but with some incidents. Some of these concerned payment of child support and the father says there were occasions when the mother and child were not at home when he came to collect the child and again when he returned the child, although it seems often the mother was close by at her mother’s.
The father had contact with the child from 28 September 2001 to
6 October 2001. The father says that it commenced with normal weekend contact but was extended by agreement with the mother, the child having requested it. The mother says it was block contact in accordance with the order which had been made in 1996. I note that block contact did not provide for a period of a week or so in September or October and it seems most likely that the father's description is true, although that is now of only background significance. The following weekend commencing Friday 12 October, the father came to Geelong to collect the child for contact, he taking the view that was the second weekend – the alternate weekend, following the contact which commenced on 28 September. The mother and child were not at their residence and in fact it had been vacated. The mother had moved, she says, because that accommodation was too expensive. She had moved to the house of a work friend of Mr T P, a house where Mr P also lived. She did not make the child available for contact because she says that the father having had the child for a week, the alternate contact would resume in a fortnight, not a week's time.
The next Friday, 19 October, the mother brought the child to the father's residence in B. By this stage the parties were sharing the travelling. There is a dispute between them over when that sharing commenced. The father says that he had done the travelling up until fairly recently. The mother says it had been shared for quite some time. Again, that is a matter of background significance only. In any event, on that Friday 19 October when the mother arrived she asked to come inside to use the toilet. She did come inside and an altercation took place. The father says the mother was abusive and yelling about payment of child support. The arrangement between the parties then was that he would pay child support at contact changeover because the mother did not like the delay when it was paid through the Child Support Agency. Again the existence of that arrangement is background significance only. The father is now paying child support to the Child Support Agency so that the potential for conflict at changeover periods because of non-payment would seem to be lessened – I won't say eliminated – because of what seems to have been the volatile nature of the relationship between these parties, most probably because of the mother's excitable nature.
In any event the father says that on that day he was not expecting the mother to arrive and so he did not have the child support. He says that because of her behaviour he took her by the arms and removed her from the house, whereupon he was confronted by Mr T P who had accompanied the mother and child from Geelong to B. The mother says she was not yelling. She says that the father threw her around the lounge room and she says there was no confrontation with Mr T P. Given the impression I have formed of the mother in her evidence, it seems most likely that the mother was yelling as the father said. Precisely what then happened, other than that the father did remove the mother from the house, is not possible to determine and in any event is now only of background importance, not of major significance.
What is important is that the father did not return the child to the mother after this weekend of contact. He kept the child and enrolled him in a local primary school and cancelled the child's enrolment in Geelong. The father then applied for an order that the child reside with him. The reason he gives is that he believed the mother was using amphetamines, that her constant abuse was upsetting the child, and that she was not caring for the child as she should have been. He gives evidence of two instances; once when he arrived to return the child to the mother's house at 1.00pm in the afternoon and he says she was still in bed. He gives evidence of a phone call which suggested again that the mother was in bed late in the day.
The father has made an application for residence. The mother made a contravention application. The matter came before the court on
5 November 2001 when consent orders were made for the child to be returned to the mother and a hearing was fixed for 17 January 2002. Orders were made for the appointment of a child representative and for the preparation of a welfare report by a forensic psychologist, Mr Bruce Guy, for the parties to undergo drug testing each week commencing 12 November 2001 and then randomly at the direction of the child representative once appointed. Contact was dealt with in the order. The mother did not have the initial drug tests and did not attend the initial appointment with Mr Bruce, and so the hearing in January could not proceed. It proceeded on 21, 22 and 23 February last week. The mother's reasons for not having drug tests are dealt with later. So far as missing the appointment with Mr Bruce, she says that she was advised by her stepfather of traffic problems on Geelong Road or on the West Gate Bridge. Anticipating that she would be late, she rang and informed Mr Bruce's office of this, which is in fact the case. Failure to attend the drug tests I think is of significance, and I will deal with that later. The failure to attend the appointment with Mr Bruce may well have been as a result of the mischance of heavy traffic.
Evidence
The father presented well as a witness. He has a good relationship with the child, good and secure employment, and strong support. He has support from Ms O as already described and from his mother. His mother gave evidence and was an impressive witness. She lives nearby to the father and works as a catering supervisor. She finishes in the early afternoon and so, if need be, can care for the child after school. She has flexible working arrangements so that she could take periods off work if need be. She has a good relationship with the child and she says she has a good relationship with the mother. Given the impression I formed of her, I believe what she says.
The father has his own home, adequate for the needs of the child and for the younger child during periods of contact. He has secure employment and flexibility if he needs to care for the child. His proposal is that the child would attend school in B, would go to before-school and after-school care as needed and he would use his flexible working arrangements and the support he has available from his mother and from Ms O. The father has used cannabis and amphetamines in the past and has used them with the mother. He says he has not used amphetamines for a considerable time and has not used cannabis since the court hearing on 5 November – this as a consequence of the legal advice he has received. The results of the drug testing ordered were in evidence and they show that those taken for the father close to November detected cannabis; later ones had not. The father said in his evidence that since stopping the use of cannabis he has never felt better.
The mother presented as highly excitable. It is not possible to place any reliance on her evidence. Her affidavits denied any use of illegal drugs. Testing detected cannabis and her oral evidence, no doubt prompted by the results of the tests, was that she continued to use cannabis about twice per week after the child had gone to sleep. She said she purchased about two grams a month. Therefore she has a false denial in her affidavits. Then her affidavits said that the father had had no contact prior to the 1996 orders. This is wrong. The father had had regular contact prior to this. Again the affidavits were wrong.
Next, at the time of the hearing in November, according to her oral evidence, her accommodation was temporary. She said, as I've already said, she moved out of her previous accommodation because it was too expensive and she took up temporary accommodation offered by Mr P's workmate while she looked for permanent accommodation. Yet despite the fact of this temporary arrangement her affidavits presented it as permanent. The living arrangements for a child are significant in the determination of questions of residence. On this significant issue, the mother’s affidavits gave a false impression.
Then late in her evidence, so late in fact that it was well into the cross-examination by counsel for the child representative, she described a plan for her mother and stepfather to purchase a property in which she would live and eventually be hers. The grandmother and the mother currently live in the area of Geelong which is on the Melbourne side, and the mother’s various residences have been in that area. The grandmother has had permanent residence. The mother and then her mother gave evidence that a house has been purchased in Lara just outside Geelong by the grandmother and husband. The plan is that they will then move, sell their existing property in Geelong and purchase another investment property in which the mother would live, no doubt paying rent so as to justify the negative gearing that the grandmother described. This is obviously of significance and yet it was not in the mother’s affidavit or in her evidence-in-chief. The inference has to be that she had not told her legal representatives. It shows at best a lack of understanding by the mother of what is significant in looking at the future of the child.
Next, her explanation of her treatment for depression made no sense to Mr Bruce, an experienced forensic psychologist. Mr Bruce had prepared a welfare report having interviewed both parents and the child and seen the child with the parents. The mother said that she had suffered from migraines. This, she said, had been diagnosed as caused by depression. She had been prescribed Favorin and she had not had a migraine for some months. Mr Bruce said that the mother did not present as being depressed. In fact she presented quite well to him and her explanation made no sense. The mother said she had ceased taking the medication because it made her sick. Her mother, an impressive witness, gave evidence that she sees the mother and child frequently. She said she had been to the doctor with the mother recently and that the doctor had advised the mother to keep taking her medicine, that is the Favorin, and she believed the mother was still taking the medicine. The doctor was not called. His absence was not explained.
The mother's behaviour has been erratic. The child has had unacceptable absences from school which I will deal with in more detail later. The mother’s attempts to explain those absences are unacceptable. The mother is using cannabis to an extent it is not possible to ascertain. She says about twice a week at night, yet her mother gave evidence of seeing her during the day and considering that she had been using cannabis, but was not badly affected, I note in passing that the grandmother, the mother's mother, gave evidence that her belief was that the mother was not using amphetamines. She had seen in the past the mother's behaviour when using amphetamines and she did not consider she was using them now. The evidence of Mr Bruce, both oral evidence and contained in his report, was that the mother presented quite well and she did not present as being depressed. The doctor was not called. Obviously he could have shed some light on the mother's health and indeed have given some explanation of what it was all about.
I have said that a major concern is school attendance. An affidavit by the school principal recited school absences for the period from the commencement of 2002 up to the 19 October. There were, in that period, a total of 43 absences, most in the second half of the year. In the first half of the year many of them are noted as being approved. One is noted as being due to illness. From June through to 19 October there are 31 absences all down as unexplained. Then in a further letter tendered by agreement the school principal states that the child was absent from the school, B P Primary School, from 29 October 2001 to 20 November 2001.
The child returned on 21 November and was absent for seven days from 3 December through to the 21 December. There was a period of four days out of five – 3, 4, 6 and 7 December – when the child was absent. The mother could give no explanation for these December absences and indeed seemed to suggest that they had not occurred, although in the end it was not entirely clear what she was saying. As I have said, the mother's attempts to explain these absences are unsatisfactory. One reason she gives is her migraines. If her health is such that she cannot get the child to school then that obviously is a matter of concern.
Mr Guy's report and his evidence is of importance. He saw the father on 11 January. He interviewed the mother on 6 February and interviewed the child the same day, and again on 16 February. The child came once with the mother and once with the father
Mr Guy reports that the father presented as quite reasonable, moderate and convincing. The mother, he says, presented as pleasant and cooperative. She did not present as depressed. Of the child, Mr Guy describes him as a very pleasant, quiet and mature little boy who seemed to have a clear idea of the implications of the situation. Other evidence from those who know the child describe him as a clever boy. School reports over a period were tendered in evidence and they show that he is doing well but with some reservations about his attention in school and attention to his school work.
Of most significance is Mr Guy's evidence that the child's wishes are to remain living with the mother. He says this in his report "Brought by the mother he said he wants to remain living with her," and then, "Brought by the father, he still said he wants to live with mother, but to have more time with father. He's rather fed up with all the travelling 'but when you get there it's worth it'." Mr Guy said this, "I regard his expression of wishes to be clear, definite, consistently and maturely held."
A variety of matters were put to Mr Guy in cross-examination in relation to the mother. Mr Guy having taken those into account maintained his opinion about the child's wishes.
Application of law
In these circumstances I have to apply the provisions of the Family Law Act. First, Section 65E provides in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. Various decisions of the Full Court of the Family Court, and in particular B and B Family Law Reform Act (1997) FLC 92-755, make it clear that a court must identify section 65(E) of the Family Law Act as setting out the paramount consideration and I do that in this judgment.
Section 68F(2) of the Family Law Act sets out the matters to be taken into consideration in determining the best interests of the child. Before turning to that I should mention section 60B(2) which sets out the objects of Part VII of the Family Law Act which deals with children. The objects are these:
(a)Children have the right to know and be cared for by both their parents……
(b)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.
(c)Parents share duties and responsibilities concerning the care, welfare and development of their children.
(d)Parents should agree about the future parenting of their children.
In the circumstances of this case the objects of the Act will be achieved whichever way the residence matter is decided so they do not loom large in the application of the provisions of the Family Law Act.
Section 68F(2) sets out the matters to be taken into account in determining the best interests of the child.
Paragraph (a)
Any wishes expressed by the child and any factors such as the child's maturity or level of understanding that the court thinks are relevant to the weight it should give to the child's wishes.
The child's wishes are clear and identified by Mr Guy. He wants to live with his mother, and he has a level of maturity and a level of understanding of the circumstances such that that it is a maturely expressed wish for his age.
Paragraph (b)
The nature of the relationship of the child with each of the child's parents and with other persons.
The child has a warm and loving relationship with both parents and with the other significant people in his life. That is apparent from the evidence and from Mr Guy's report. The mother has been the primary carer certainly since separation and indeed almost certainly right throughout the child's life.
Paragraph (c)
The likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents.
The child could live with either parent. Again, this is apparent from Mr Guy's evidence and from the evidence that he enjoys a close relationship with his father and enjoys his contact with the father. The child would move school but there would be no significant effect caused by his having to move school.
Paragraph (d) is not relevant.
Paragraph (e)
The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs.
There are concerns about the mother's capacity to care for the child. Counsel for the child representative described the school attendance record as appalling and the mother's explanations as unconvincing. Both descriptions are correct. The mother's use of cannabis is of concern, as is her state of health. There must be a suspicion that the failure to attend school, the use of cannabis and state of health, are related. On the other hand, school reports are good, with some reservations, as I have said, and the child is well adjusted and lively. The mother's frequent moves and living arrangements are of concern. She has moved nine times since separation. Another move is planned. The evidence of that came very late giving neither the father or the child representative the opportunity to investigate a proposed move.
The lack of clarity about her relationship with Mr T P is of concern. He was not called to give evidence. There are suggestions in the evidence that the relationship is more than the mother describes. Mr P could have shed some light on this yet he was not called. The fact that he was not called is of concern in itself. On the other hand the evidence of lack of school or poor attendance relates to the second half of last year, the year 2001 alone. There is no evidence other than the first half of the year which had some absences but not such to be of major concern. Otherwise there is no evidence as to other periods. In particular, there is no evidence of the commencement of school this year which is now some two to two and a half weeks old. Evidence of school attendance would be easy to obtain, either by the father or the child representative, and in those circumstances I conclude that apart from last year school attendance has been satisfactory.
The child has attended two schools in the Geelong area. The mother said she moved the child because of some unsatisfactory aspects about the school. I will not go into the evidence she gave but it would seem that there was bullying at the other school and if that is correct, that is a rational reason for moving the child. I should say not a criticism of the school but a rational reason for moving the child. The mother says that she proposes that if she does move to L her current thinking is that the child would remain at his current school which is only some quarter-hour drive or so from L. Again, on this aspect of the capacity of the mother to care for the child, the mother has been the primary carer and the evidence of Mr Guy shows that the child is happy and well adjusted.
So far as the father's capacity to care for the child is concerned he has, as I have described, financial stability and a stable environment, his own home. The one matter of concern relates to a bed-wetting problem that the child has. The child wets the bed at night. The father deals with this by putting the child into pull-ups or pull-up nappies, the same as used for the younger child. This is not a satisfactory approach. The mother has been attempting to deal with it by watching what the child drinks and she has made some inquiries and has been told of a pad and bell or sheet and bell, Mr Guy described in some detail what this was and described how it is believed that it assists. In any event, he said that in 70 per cent of the cases it solves the problem. One would hope that the parties, having heard that evidence from Mr Guy, will take steps to deal with the bed-wetting problem in that manner.
Paragraphs (f) and (g) are not relevant.
Paragraph (h)
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.
The matters which have been set out in paragraph (e) are relevant again here. Both parents obviously love the child and care for him. There are the misgivings about the mother's attitude to the responsibilities of parenthood which I have set out.
Paragraphs (i) and (j) are not relevant.
Paragraph (k)
Whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
There is some concern about the mother's attitude to contact. The child has been showing on occasions some reluctance to go on contact and sometimes this is associated with an event such as a friend's birthday party. Questioned by the child representative and by me, it was difficult to ascertain what the mother's attitude to this was. She appeared at one stage to be saying she considered that these birthday parties were more important than contact. If the mother persists in an attitude such as that and contact periods are missed, inevitably that will lead to the institution of proceedings by the father by way of contravention applications.
The first weekend contact in February was missed, although there is an explanation for this. The mother had just moved into new premises, a new home, and perhaps the child was excited by that. One element in this is the strong influence of the maternal grandmother. She gave evidence of strategies she had used on one occasion to get the child to go on contact. While the mother's attitude to contact is of some concern the maternal grandmother's influence may well temper this.
Paragraph (l)
Any other fact or circumstance that the court thinks is relevant.
Of particular concern is the school attendance. As I have said, the unsatisfactory school attendance commenced mid-last year. The inference is that it is associated with problems the mother is experiencing. She puts it down to migraines and depression. Another explanation may be the use of cannabis or in part it may be associated with the use of cannabis. If I considered that the school absences would continue as they have it would not be in the best interests of the child to remain with the mother. However, I do not think that this concern, when balanced against the other considerations, does justify a change of residence.
I think there is sufficient evidence to justify a conclusion that the last six months of school attendance will not be repeated and I propose putting in place some safeguards for the next few months so that if it is repeated the child representative can bring the matter back before the court. The child has attended school this year. The mother should by now realise the importance of having the child attend school.
The child representative, through his counsel, has consented to continue to act for a period and to monitor drug testing of the mother. The child representative can also monitor the attendance at school.
When I balance all of the relevant factors as I have described them under section 68F(2), my conclusion is that it is in the best interests of the child that he continues to reside with the mother.
On the question of contact, the mother has proposed some changes which introduces some flexibility. At the moment I am minded to make those changes but I will hear submissions.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Phipps FM
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