M and H
[2003] FMCAfam 284
•25 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & H | [2003] FMCAfam 284 |
| FAMILY LAW – Residence – children’s wishes – no evidence given by mother’s husband. Family Law Act 1975 (Cth) Ss. 65E, 60B, 68F(2) H v W (1995) FLC 92-598 (also reported as Harrison v Woollard (1995) 18 Fam LR 788), |
| Applicant: | T M M |
| Respondent: | S M H |
| File No: | LNM 1069 of 2003 |
| Delivered on: | 25 July 2003 |
| Delivered at: | Launceston |
| Hearing date: | 16, 17 & 18 June 2003 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Murray |
| Solicitors for the Applicant: | Cahills |
| Counsel for the Respondent: | Mr T McGuire |
| Solicitors for the Respondent: | Temple-Smith & Barclay |
ORDERS
That the Orders made on 30th November 2000 in the Family Court of Australia in Hobart be discharged.
That the children S S J H born 13th June 1991 and C A H born 28th July 1992 reside with the Father S M H.
That the Mother T M M have contact with the children as follows:
(a)in Victoria during the children’s long summer school holidays each year for a period of at least four weeks, such to include Christmas Day in each alternate year commencing in 2003;
(b)in Victoria for one further period of two weeks during one of the children’s other school holidays each year;
(c)such additional face-to-face contact in Victoria as may be reasonably arranged at the expense of the Mother;
(d)reasonable telephone contact to a “Homelink” telephone number to be provided by the Mother; and
(e)such other contact as may be agreed between the parties from time to time.
That for the purposes of paragraphs (a) and (b) of Order No. 3 hereof the Father and the Mother are required to contribute equally to the costs of airfares associated with the contact thereby ordered.
That the Application filed 29th January 2003 and the Response filed 4th February 2003 is otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM1069 of 2003
| T M M |
Applicant
And
| S M H |
Respondent
REASONS FOR JUDGMENT
Applications
Although technically the Applicant in this matter is S M H (“the Father”), at the hearing counsel for the parties had agreed that because the Respondent T M M (“the Mother”) was seeking to change the “status quo” in relation to the children, it was more appropriate for her to be treated as the Applicant.
The proceedings were initiated by an Application filed by the Father on 29th January 2003 when he sought final orders in relation to residence of the children S S J H born 13th June 1991 (“S”) and C A H born 28th July 1992 (“C”), together with Orders that they be returned from Victoria to him in Tasmania.
The Mother filed a Response on 4th February 2003, in which she sought Orders that the children reside with her.
When the matter come on for initial hearing on 6th February 2003, the parties agreed that the children should be returned to the Father in Tasmania and that the final hearing of the parties’ competing applications would be in Tasmania.
Background
The Father and the Mother were married in Tasmania in 1991. At that time, the Mother had an older child from a previous relationship, Tai, who is now 14 years old.
The parties were divorced in 1995 and S and C resided with the Mother, together with the older child T.
At some stage in either 1999 or 2000 the children came into the Father’s care. On 23rd August 2000 interim orders were made by consent which provided for the children to reside with the Father and for the Mother to have reasonable face-to-face and telephone contact “as initiated by the children”.
On 30th November 2000 final Consent Orders were made in the Family Court of Australia which also provided for the children to reside with the Father. The Mother was to have contact for six hours on 2nd December 2000 and the only other contact provided for in those Orders was for reasonable contact by letter and by telephone.
The Mother moved to New South Wales with a man whom she has since married (“the Mother’s husband”). They have had two children, K aged two years and S aged one year, and are now living at Puckapunyal in Victoria.
Since the Mother’s departure for the mainland in December 2000, she has had two periods of contact with the children outside Tasmania. They were during the long summer school holidays in 2000/2001 and 2001/2002. It was during the latter period of contact that the Mother retained the children without the Father’s consent and he his Application on 29th January 2003 seeking a Recovery Order. However, as mentioned above, the Mother agreed to return the children to the Father and pursue her application for residence orders in Tasmania.
Relevant law
Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Act”). They are subject to section 65E of the Family Law Act, that in determining the outcome, the best interests of the child is the paramount consideration. This is the overriding principle.
Subsection 68F(2) of the Act sets out the factors that the Court must consider in determining what is in a child’s best interests and I shall examine the evidence in this matter in the light of such of those factors that are relevant.
Section 60B of the Act sets out the objects of Part VII and the principles that underlie those objects. The four principles are:
(1)Children have a 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.
(2)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.
(3)Parents share duties and responsibilities covering the care, welfare and development of their children.
(4)Parents should agree about the future parenting of their children.
Evidence & Findings
The Mother relied upon affidavits of her own filed 4th February and 10th June 2003. The Father relied only upon his affidavit filed 10th June 2003. Both parties were cross-examined.
On 6th May 2003 a counsellor attached to the Family Court of Australia (“the counsellor”) provided a report pursuant to Section 62G(2) of the Family Law Act 1975 (“the Family Report”). She was cross-examined at some length in relation to the Family Report.
Children’s wishes
It is clear that when the children stayed with their mother during the last long summer school holidays, S, and to a lesser degree C, made statements which suggested that they would like to live with their mother. The Mother says that when the children were with her during those holidays, both advised her that they did not wish to return to their father and that they wished to reside with her and her husband, and their half siblings.
In the Family Report, the counsellor indicated that S was quite adamant that he wanted to live with his mother. He indicated that he wanted to get away from his current school. When it was suggested to him that he might complete Grade 6 in Tasmania, that suggestion was clearly not to his liking. Indeed, he said that he would probably not last that long and that he would:
“get the hell bashed out of him at school”.
It seems clear from the evidence that S has been a bully at school in the past and that he may well be a victim of bullying now.
S stated to the counsellor that his biggest worry was not being able to go and live with his mother and that he thought that his father would want to stop him “because he doesn’t like mum”. He commented:
“I am just going over to see what it is like, if I like it heaps, I’ll stay there….”
S indicated to the counsellor that he would probably return to Tasmania in a few years and when he was asked where he would live, he said:
“I’d live with dad of course.”
It would appear that C expressed her desire to live with the Mother only after she was asked whether she wished to do so by her mother and her mother’s husband. When she was asked by the counsellor, she also indicated that she would rather go to live with her mother now than complete primary school in Tasmania.
I shall refer to the children’s wishes again below.
The nature of the Children’s relationships
It is clear that the children have a good relationship with the Father, although the relationship between S and the Father is at times strained because of S’s behaviour. I shall refer to that below.
Clearly, the children also have a good relationship with their mother, notwithstanding that she has only had face-to-face contact with them on three occasions since December 2000.
Unfortunately, little is known about the relationship between the children and the Mother’s husband, because he did not provide an affidavit for these proceedings and he was not called upon by the Mother to give any evidence.
The fact that the Mother’s husband did not provide any affidavit material is significant, because allegations were made in 1999 that he had been violent towards both S and C. The Mother claimed initially that the Child Protection authorities had cleared her husband, but later in cross-examination she admitted that she was aware of him hitting C with a belt.
In her second affidavit the Mother states that both children have developed firm bonds with her husband and their half-siblings. In the Family Report, the counsellor says that she observed the children at the Court with the Mother’s husband and K and S. The only recorded observation by the counsellor in relation to the relationship of S and C with the Mother’s husband was that they “were observed volunteering farewell hugs” with him.
I do not accept the Mother’s reason for why an affidavit was not provided by her husband – that is that the Father’s affidavit was not received in time. She knew about the allegations about her husband in 1999 and they were mentioned again in the Family Report released in May 2003. However, the result is that the Court has been deprived of an opportunity to hear from her husband and that is clearly a significant failing in the Mother’s case overall. I shall refer to that again below.
It is also unfortunate that the counsellor did not interview the Mother’s husband when she had an opportunity to do so. The brief provided to the counsellor included a request for a report on the nature of the relationship between the children with each of the parents “and with significant other persons”. Quite obviously, the Mother’s husband is a “significant other person” in this matter, and the counsellor should have been aware of his significance.
It does not appear from the Family Report that the children’s half-sibling T attended the Court at the time of the counsellor’s interviews, so I have no independent assessment of her relationship with S and C.
The need to protect the children from physical or psychological harm caused by abuse, ill-treatment, violence or other behaviour
In her affidavit material the Mother referred to a revelation by S that his father had beaten him with an electrical jug cord. She says that she was initially sceptical but C confirmed that this was the case.
In the Family Report, the counsellor states that S and C both revealed that in 2002, the Father had:
“resorted to using a jug cord to belt S as a result of his continuing misbehaviour at school.”
S informed the counsellor that this had occurred:
“perhaps 10 to 11 times but not since Christmas”.
C told the counsellor that it had been “perhaps 4 or 5 times”.
The Father in his affidavit says the following:
“There is a reference in the family report to me inflicting corporal punishment on S with a jug cord. I admit that this has happened on two occasions. I am not proud of it. I asked the Court, however, to consider the circumstances of me as a sole parent dealing with a violent and aggressive child. These incidents occurred more than 12 months ago. It is not my preferred or usual method of punishment. On one occasion I hit S approximately three times lightly and through his clothing with a jug cord. This was after yet another incident of him stabbing another child. I had previously tried all methods set out above. I had also tried grounding S.. I took away his privileges. I would send him to his room. I would try and talk and reason to him. S was not bruised nor harmed by the infliction of corporal punishment.
The second incident happened at around the same time and after S had again been caught shoplifting. This was one of the many occasions that he had been caught stealing. Again, I had tried to deal with these problems through the appropriate authorities and counselling and talking to S. Again, there were approximately three taps with the jug cord. There was no bruising. It was my method of trying to scare S out of his behaviour. I am aware that it might not be a preferred method. It is not my own preferred recurrent method of punishment.”
The Father goes onto say:
“It is important, however, for me to say that S’s behaviour has improved dramatically during this year. His teachers have commented to me that S is much better and settled at school. His behaviour at home is noticeably better. He is no longer violent towards his sister. There have been no more stabbing incidents. There have been no more stealing incidents.
S continues to see the school counsellor on an ongoing basis. I meet with the counsellor and the teachers. We have put into operation special arrangements for S and to address his violent streak. For instance, if S is feeling tense then he is allowed to go to a ‘cool down area’ at the school.”
Naturally, the Father was cross-examined at some length about his use of the jug cord. His evidence was consistent that he had only used that jug cord twice and that the incidents had occurred after S had been violent towards another child and had been caught shoplifting. The only significant difference in the Father’s evidence was that S had compounded both incidents of misbehaviour by denying them to his father when he was confronted.
Clearly, the use of a jug cord to punish a child is highly inappropriate. However, I accept the Husband’s evidence that it has only happened on two occasions and that the children are exaggerating in relation to the number of times that it has happened. In this regard, I note that both parents accept that S is somewhat loose with the truth when it suits him.
In my view, the use of the jug cord on those two occasions must be looked at in the context of the behaviour of S over a number of years. In this regard, it is clear that S has had behavioural problems for some time. Both parents admit that he was a difficult child for a significant period before he came into his father’s care. The Mother conceded that he was such a difficult child that he was expelled from school in Grade 1 or 2.
On 25th June 1999 the Father’s solicitors filed a Notice of Child Abuse (Form 66) in which it was alleged that the child S had notified the Father that he had been:
“punched in the head and grabbed by the throat”
by the Mother’s husband (who was then her boyfriend). That document also stated, inter alia, that the child C had, approximately six months previously, advised the Father that she had:
“been hit about the buttocks with a belt”
by the Mother’s husband. As mentioned above, when she was cross-examined, the Mother conceded that her husband had hit the child C with a belt. If the timing referred to in the Form 66 Notice is correct, the child C was six years old at the time.
Unfortunately, the Court is not able to come to any conclusions about the current propensity for violence of the Mother’s husband, because he gave no evidence in the proceedings and the counsellor did not avail herself of the opportunity to speak to him.
Capacity of the Parents to Meet the Children’s Needs
Unfortunately, there is little evidence before the Court of the Mother’s capacity to meet the needs of the children. She has been living on the mainland for more than two years and during that time she has only had face-to-face contact with the children on three occasions. On two of those occasions, she made requests for contact. The third occasion of contact was here in Tasmania just prior to the interviews for the Family Report and that was arranged at the suggestion of the counsellor.
I have little evidence before me that the Mother has thought very seriously about the children’s needs. She says that she is:
“aware that S, in particular has been unhappy for sometime and that both children will require patience and understanding”
and she goes onto say that if she is successful in her application, she:
“will endeavour to obtain whatever professional help is necessary to assist the children to cope with the changes which will occur in their lives.”
However, she has not contacted the children’s school in Tasmania, either during her visit here in April or at any other time. Consequently, it is difficult for her to know what the children’s educational needs are.
The Father’s evidence is that he has been attempting to deal with S’s problems. In relation to that, he says the following:
“I have had regular meetings with the school and school counsellor in which we have resolved plans of action to deal with S. He is, for instance, in an anger management group at school. He continues to see the school counsellor on an ongoing basis.
I have taken S to see a Psychologist (named) at the Child & Adolescent Health Centre.
I have taken S to the local Police Station and sat him down in front of the Sergeant for a talking to. I have even had acquaintances who have been released from prison and I have had them speak to S about the future ramifications of his behaviour if it is not curbed.”
Later in his affidavit, the Father says the following:
“There is still a problem with S being bullied at school. I believe that this is the reason that S says to the counsellor that he would like ‘a new start at school’. The history of bullying is, however, significant. Previously it was S himself who was the bully. It was part of his violent tendencies. He would bully the younger and smaller children. It then occurred that older and bigger children took matters into their own hands and S became the victim of bullying. He is an easy target because of his volatile streak. Again, I have worked hard on all of these matters with the help of S’s counsellor and teachers. I am concerned that all of this good work will be wasted if S is simply allowed to ‘run away’ from a problem which is being properly dealt with and that it would ultimately be in his best interest to stay and deal with this problem himself rather than run away.”
In relation to C, the Father says that she is doing well at school and has no behavioural problems.
The Attitude of the Parents to the Children and to the Responsibilities of Parenthood
In her affidavit evidence, the Mother stated:
“In approximately September 2000, the children indicated that they wished to reside with their father. I was seven months pregnant at the time and was having difficulty coping with (the Father’s) harassment. I warned the children that living with ‘Dad’ would be different to contact, or holidays. I agreed to the children residing with (the Father) on the proviso that if they wished to return to reside with me, they would be permitted to do so.
(The Father) refused me contact with the children for the following three months. At the end of 2000, (my husband) and I planned to move to the mainland to enable (my husband) to join the army. (The Father) permitted us half a day contact with the children prior to our departure.”
When she was cross-examined, a different picture emerged. The Mother conceded that when she consented to the final orders of 30th November 2000, she had declined to have specified face-to-face contact included in the Orders, despite being urged to do so by the Children’s Representative at that time. It is clear also from those orders that the Mother was represented by a lawyer at that time so I think it is safe to assume that she would have been advised to have specific face-to-face contact orders included in the Orders.
In her affidavit material, the Mother also suggested that the Father was resistant to her having contact with the children. However, when she was cross-examined, she conceded that she had only requested contact on the mainland twice in two years and the Father had agreed to that contact on both occasions.
In the Family Report, the counsellor says:
“From the record of both parents over the last few years, there is every reason to believe that the mother will strongly endeavour for the children to develop an adequate contact relationship with their father. If the children were to remain with (the Father), it seems very doubtful that future contact would extend beyond the current once per year face-to-face contact. This would not be satisfactory.”
When cross-examined in relation to this, the counsellor was somewhat inconsistent. In this regard, she appeared to hold the view that it was fair to be critical of the Husband because he had apparently only “allowed” the Mother to have contact once per year. However, she could see no reason to be critical of the Mother for not asking for contact more than once per year. In my view, the Mother’s failure to ask for contact shows that she did not appreciate the children’s need to be with her more frequently.
While there is no clear evidence that the Father has encouraged contact between the children and their mother, the clear evidence is that he has not prevented any contact when it has been requested. In this regard, the mother painted a picture of him in her affidavit material that was not supported by her evidence in cross-examination.
Initially, after the Mother left for the mainland, the Father provided her letters to the children and he assisted them in the posting of their replies. However, it is clear from the comments made by C to the counsellor that the Mother’s writing of letters to the children dwindled as time passed.
The Likely Effect of any Changes in the Children’s Circumstances
Because the Mother has not made any enquiries of schools in Puckapunyal about how the behavioural problems of S will be handled, it is somewhat difficult to assess how S will be effected by a move to live with his mother. On the other hand, if he is to stay with his father, it is clear that he will be very disappointed and possibly resentful and difficult. The counsellor said:
“There would seem to be very little benefit to forcing S to stay in Tasmania to deal with his problem. Indeed, there is a considerable potential for an increase in the level of distress experienced by S and therefore the level of conduct disorder that he will present with. He threatens to act out more severely and it is likely that he would do so. This would be profoundly damaging for him and if this continues for the next few years, S will have reached an age group where resolving the underlying issues for his conduct disorder would be nearly impossible.”
Unfortunately, the Court is in the position of not knowing what facilities are available in Puckapunyal or how the Mother, and importantly her husband, will react to any behavioural difficulties. It seems perfectly clear to me that S’s nature will not dramatically change overnight just because he has moved to live with his mother. Consequently, there are likely to be difficulties in his mother’s household and I have no way of knowing how those will be handled. I also have a concern that the Mother’s husband could react violently to a difficult twelve year old boy because the Mother conceded that he treated C violently when she was only six years old.
On the other hand, the Father’s evidence is that he has been liasing regularly with the school and he has consulted a psychologist and the school counsellors.
Practical Difficulties and Expenses Associated with Contact
It would appear that the same practical difficulties and expense of contact will exist no matter with whom the children are living. They currently reside on the North West Coast of Tasmania and the Mother resides at Puckapunyal in Victoria because her husband is in the army. The Mother’s evidence is that he wishes to stay in the army so he can anticipate some moves during his army career. However, his next posting is unlikely to be before January 2006.
The Father is totally reliant upon Centrelink benefits to support himself and the children. He receives no Child Support from the mother. Consequently, his ability to fund airfares for contact is limited. Presumably, if the children were residing with their mother, he would have an ability to seek employment.
On the other hand, the Mother is not employed, and she is reliant upon her husband’s salary as a private in the army. Given that his salary must currently support a family of five people, it is also clear that their capacity to fund airfares for contact is also limited.
Conclusions
At times during the hearing, one could have been forgiven for thinking that the only issue for the Court to consider was that of the children’s wishes, and particularly those of S.
Paragraph (a) of subsection 68F(2) of the Act requires the court to consider any wishes expressed by the child and any factors, such as the child’s maturity and level of understanding, that are relevant to the weight that should be given those wishes. The child’s maturity, as well as the child’s sex and background, are also factors to be considered under paragraph (f) of sub-section 68F(2).
The significance of children’s wishes was considered by the Full Court of the Family Court of Australia in H v W (1995) FLC 92-598 (also reported as Harrison v Woollard (1995) 18 Fam LR 788), where Fogarty and Kay JJ said (at page 81947):
“As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
In that same case, at page 81967, Baker J said:
“In my opinion, a child's wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Furthermore, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the Court should give effect to such wishes.
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in each individual case. Such an exercise will require a consideration of both the child's level of maturity and understanding.
The wishes of the children were also considered by the Full Court of the Family Court in R and R: Children’s Wishes (2000) FLC 93-000, where the Court considered the decision in Harrison v Woollard (supra) and said:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.”
Recently, this issue has again been considered by the Full Court of the Family Court in the similarly named case R v R (Children’s Wishes) (2002) FLC 93-108, where it was held that:
“The principle is clear that a Court must take children's wishes into account, but is not bound by them”
It is clear that the counsellor in her report was recommending that the Court accede to the wishes of the children. However, when she was cross-examined, she conceded that such a move would be “a very risky step” and “a very brave move”. In relation to S she also said: “Hopefully, it would be a better situation for him.” In my view, that is somewhat speculative. The Mother’s case was incomplete, especially because her Husband gave no evidence. Consequently, the Court would be taking a risk with these children’s future if it simply acceded to the wishes of the children.
Counsel for the Father said that I should draw an adverse inference from the fact that the Mother’s husband had given no evidence. He relied upon the principle in Jones v Dunkel (1959) 101 CLR 298. In this regard, it was clear that the Mother was put on notice about the Father’s concerns about her husband by the Form 66 Notice filed in 1999 and by the reference in the Family Report to her husband hitting Cheyenne with a belt. However, she did not respond to that in an affidavit that she filed after the release of that report, nor did her husband complete any affidavit material.
Even if I do not draw an adverse inference in relation to the failure of the Mother’s husband to give evidence, I must still have some significant concerns about the unknown. I therefore agree with the counsellor that it would be a “very risky step” to allow the children to reside with their mother and I find that I am not prepared to take such a risk.
The children have been residing with their father for approximately three years and, in relation to S in particular, the Father has generally reacted appropriately, in conjunction with the school staff and other professionals. Certainly, there have been some lapses, and I refer to the incidents in relation to the jug cord in particular. However, I have confidence that the Father will continue to avail himself of professional assistance when it is required.
I am required to consider whether it would be preferable to make an order that is less likely to lead to the institution of further proceedings. In this regard, it seems to me that there is a possibility that the wishes of S and C to live with their mother may get stronger and there may need to be some further proceedings at some stage in the future. However, at this time, it is my view that the children’s best interests are served by remaining with their father.
It is clear that the children should have more contact with their mother. However, I do not believe that the Father could possibly save half the airfares more than twice per year. It is therefore my intention to order that there should be contact in Victoria twice per year with the parties sharing the cost equally. However, I see no reason why the Mother should not have more contact than that if she is prepared to fund the children’s airfares herself.
It is my view that the children should be able to have reasonable telephone contact with their mother. However, the evidence is that the Father does not have a landline telephone connected. I am therefore of the view that the Mother should provide a Homelink telephone number to enable the children to contact her when they wish to do so. Given their ages, it seems likely that they will be able to make those calls when it suits them.
I will make orders to provide for these matters.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
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