M and M
[2001] FMCAfam 187
•7 June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2001] FMCAfam 187 |
| FAMILY LAW – Children – Residence – Best Interests of children – Orders – Conduct of parents – Family Law Act 1975, s 68F, s68G. H and W (1995) FLC 92-598. |
| Applicant: | Y V M |
| Respondent: | B J M |
| File No: | ZP 794 of 2000 |
| Delivered on: | 7 June 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 12 & 13 December 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Davis of Liverpool Legal Aid DX 5045 Liverpool NSW |
| Solicitors for the Respondent: | In Person |
ORDERS
The child A M born 26 May 1992 is to reside with the Applicant mother who shall be responsible for the day-to-day care, welfare and development of the said child.
The child S M born 18 February 1997 is to reside with the Respondent father who shall be responsible for the day to cay care welfare and development of the said child.
The mother and father shall have the joint responsibility for making decisions about the long term care welfare and development of the said children.
The mother shall have contact with the said child S M as follows:
(1)each alternate weekend from 4.00 pm on Friday to 6.30 pm on Sunday, provided that contact shall extend to 6.30 pm on the Monday immediately following if that Monday is a public holiday;
(2)from 10.00 am on each alternate Thursday to 4.00 pm on the following Friday commencing on the Thursday following the weekend when the mother has contact with the said child;
(3)for the first half of the Autumn, Winter and Spring school holidays, commencing at 9.00 am on the day after school term concludes;
(4)for the first half of the Christmas/January school holidays except for between 1.00 pm on Christmas Day and 6.30 pm on 26th December each year;
(5)from 9.00 am to 6.30 pm on Mother’s Day if that day falls on a weekend when the mother would not otherwise be entitled to contact;
(6)for not less than 2 hours on the said child’s birthday if such day falls on a school day or for not less than 4 hours if the day falls on a weekend;
(7)by telephone at all reasonable times; and
(8)at such other times as the parties shall agree.
The mother shall not be entitled to exercise contact with the child S M on Father’s Day or on the father’s birthday.
The father shall have contact with the said child A M as follows:
(a)each alternate weekend from 4.00 pm on Friday to 6.30 pm on Sunday, not being the weekend when the mother has contact with the said child S , provided that contact shall extend to 6.30 pm on the Monday immediately following if that Monday is a public holiday;
(b)for the second half of the Autumn Winter and Spring school holidays;
(c)from 1.00 pm on Christmas Day to 6.30 pm on 26th December each year;
(d)from 6.00 pm on 8th January each year to 6.30 pm on the last day of the Christmas/January school holidays;
(e)from 9.00 am to 6.30 pm on Father’s Day if that day falls on a weekend when the father would not otherwise be entitled to contact;
(f)for not less than 2 hours on the father’s birthday and the said child’s birthday if such days fall on a school day or for not less than 4 hours if those days fall on a weekend;
(g)by telephone at all reasonable times; and
(h)at such other times as the parties shall agree.
The father shall not be entitled to exercise contact with the said child A M on Mother’s Day or on the mother’s birthday.
For the purposes of exercising contact, the parent with whom the child resides shall be responsible for delivering the child at the commencement of contact and the parent exercising contact shall be responsible for returning the child at the conclusion of each contact period.
The contact referred to in Orders 4(a), 4(b) and 6(a) above shall be suspended during school holiday periods.
The Orders made by this Court on 23 August 2000 are discharged.
All other applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 794 of 2000
| Y V M |
Applicant
And
| B J M |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother that the two children of the marriage, A M, who was born on 26th May 1992, and S M, who was born on 18th February 1997, should reside with her. She also seeks orders that the father should have defined contact with the two boys.
The application was filed at the Liverpool Local Court on 6th April 2000 and was returnable at that court on 1st May that year. On that day, both parents appeared before the court and the application was transferred to the Family Court of Australia at Parramatta. The Magistrate ordered that the parties should attend confidential counselling.
The father filed a response, seeking that the two children should reside with him, and that the mother should have reasonable contact. The mother then filed an application for interim orders. By consent, the matter was transferred to the Federal Magistrates Court on 16th August 2000 and the interim application was heard on that day. On 23rd August 2000 the Court ordered that, pending further order, the child A should reside with the mother and the child S should reside with the father. Contact orders were also made in respect of both children. The matter was listed for hearing on 12th and 13th December 2000 and a Family Report was ordered to be prepared pursuant to Section 62G of the Family Law Act 1975.
The application was heard on those two dates. The parties consented to further interim orders to cover the school holiday period. These orders provided that both children would reside with the mother from the 19th December 2000 to the 9th January 2001, in effect the first half of the school holidays, and that they would reside with the father until 28th January 2001, in effect the second half of the school holidays. The consent orders also provided that the children would spend Christmas morning with their mother, and then from 1.00 pm on Christmas Day to 10.00 am on Boxing Day with the father.
Background
The parties were married on 29th February 1992. They separated in February 1998 and remained apart for over a year, until May 1999. They resumed cohabitation, and separated again, and finally, on
27 August 1999.
The father was born on 11th September 1968, and thus was 32 years old at the date of the hearing. The wife was born on 3rd January 1966, so she was 34 years old at the date of the hearing. The first child, A, was born on 26th May 1992, and the second child, S was born on
18th February 1997. A was 8 years and 7 months old at the date of the hearing, and S was 3 years and 9 months old.
When the parties initially separated, both children resided with the mother. The father had contact. The mother had some assistance from the paternal grandmother during this time. During this time the mother formed a relationship with another man. This relationship came to an end and the parties were reconciled and resumed cohabitation.
When the marital relationship resumed, the father continued to work in his security business and the mother worked as a swimming instructor. They each looked after the children. During this time, an issue arose between the parties about the father’s actions in sending suggestive e-mail messages to the mother’s sister. The father says that it was a joke, with the consent of the mother, but the mother puts a darker connotation on the actions.
The parties separated again on 27th August 1999. The father moved out of the matrimonial home, taking the younger child, S, with him. The father says that it was a mutual decision, the mother says that she did not agree. Since then, the father has lived in rented premises with the child S. The children spend each weekend and the school holidays together, by arrangement between the parents. The father has now formed a new relationship.
Issues
The mother seeks that the two children should reside with her. The father seeks that the two children should reside with him, but his alternative position is that the present arrangement should continue, with A living with his mother and S remaining with his father. The contact arrangements, which involve the children spending weekends and holidays together, would continue.
The hearing
When the application came before the Court on the first day of the final hearing, on 12th December 2000, the father sought an adjournment on the ground that he was not legally represented. The mother opposed this application. The father had been legally represented at the interim hearing but his solicitors at the time had since filed a Notice of Ceasing to Act. He had applied for a grant of legal aid, which had been refused.
The application for adjournment was refused. Mr Davis, for the mother, told the court that no objection would be taken to the father giving oral evidence. The decision was taken that the proceedings should commence, with the father having the right to re-submit his application for an adjournment at a later stage, depending on the availability of his witnesses.
The evidence
The mother, being the applicant, gave evidence first. She has been living in a six-bedroom house owned by her parents, who have separated. Living in the household are her father, who is aged 64, and her two younger sisters. Her sister D is single but her other sister S is separated from her husband and lives in the residence with her son children aged 7 and 3 years of age.
The present arrangements for accommodation are that A shares a room with his cousin W, aged 7. When S is with the mother, he sleeps in her bed. If the children are with the mother for a substantial period of time, she proposes that the four children would share a large bedroom.
The mother proposes that A will continue to attend C W P S, which his cousin W also attends. She intends to enrol S at that school when he is old enough. He currently attends day care at W P and an Occasional Care Centre nearby.
A has speech difficulties and a mild learning disability. He requires speech pathology and occupational therapy to develop his gross motor and fine motor skills. The mother says that he has bedwetting problems and needs to bond with his brother. Since this Court made interim orders in August the children have been together much more, which seems to be beneficial for them. S has no health or learning problems.
One significant point is the mother’s belief that the father prefers S, who resides with him, to A. The mother referred to the father’s earlier expressed doubts about A’s paternity.
The mother mentioned her depressed state during the parties’ first separation. She had difficulty coping and allowed the house to descend into a state of dirtiness and untidiness. The father’s mother assisted her in cleaning the house. The mother said that the father constantly made derogatory and critical comments about her, which had a negative effect on her self-esteem. He threatened to notify the Department of Community Services that she was neglecting the children.
During the period the mother met another man and formed a relationship, which lasted for several months. She denies that this relationship included sexual intercourse. She says that she kept this relationship a secret from the children and she did not continue with the relationship. She is not currently in a relationship with any man. She is aware that the father has a female friend.
The mother is resentful of the father’s critical attitude to her. She describes his actions as controlling, saying that he will change arrangements to suit himself.
The mother referred to an incident which occurred on 11th August 1999, when she contacted the police. She says she was defending herself from a physical assault by him and pushed him away when he tried to kick her. The police attended and later suspended the father’s security licence, which he resented.
The mother was cross-examined by the father but did not vary from her account in any significant way. She agreed that A had development problems, including delayed learning, language difficulties, fine motor skills and gross motor skills problems. She was challenged on her decision to allow the child to sleep on the top bunk of a set of bunks at her home, but said she thought it was a good idea.
The father asked her why he had threatened to notify the Department of Community Services and she replied that it was because the state she had left the house in was very messy.
The mother reaffirmed her view that the two children needed to spend time together in order to bond. The father queried her ability to look after both children on a full-time basis, rather than just one.
The mother also consulted a psychiatrist, a Dr S.K.L. She says that this was done at the request of the father. The mother submitted a short affidavit from Dr L, a consultant psychiatrist. He reported that he had seen her on four occasions in 1999. He concluded that the mother did not suffer from any diagnosable mental disorder but was upset and distressed because of her marital problems. He did not prescribe any psychotropic medications for her because he did not feel that she needed any.
Dr L did express the view that the parties had a serious marital conflict that he was not able to resolve by way of counselling, and noted that the father had been “negative in his attitude with regard to his perception of Ms M ability in her home duties, and also negative in his attitude with regard to how the marital problems could be resolved.
Dr L had conducted a home visit on 11 August 1999. Whilst he noted that the house looked somewhat messy, with some clothes lying around, he expressed the opinion that it was “not very messy and certainly not smelly”.
Dr L was not required for cross-examination.
The mother’s sister D F gave evidence on her behalf. In her affidavit, she confirmed the proposed arrangements for the four children at the home the sisters share with their father. She expressed the opinion that the four children were like four siblings and spoke highly of her sister’s parenting skills. She described the incidents where she received the e-mails from the father, saying that they made her uncomfortable. She said she felt “stalked” by him.
The father cross-examined Ms F briefly about the e-mails, mainly along the lines of the parties’ knowledge of where the e-mail address came from.
The father gave oral evidence on his own behalf, and was cross-examined by Mr Davis for the mother. He said that he no longer works as a security guard, but does the office work for his business.
The father described his current interaction with the mother as “cool”, but said that they managed to speak pleasantly to each other for the sake of the children.
The father said that he had formed a relationship with a lady called K. They were friends, but the relationship is more than that of friends now. The children refer to her as “Auntie K”. She cares for the boys for him on weekends if he has to attend a call-out in his security business. She is 28 years of age, single with no children of her own. She visits the father on Tuesday and Wednesday evenings. Whilst they share an intimate relationship, the children are not aware of it, although they do know that she stays overnight.
The father maintained his critical attitude towards the mother’s parenting skills, saying that at times S comes home hungry, dirty and demanding a bath when he has been staying at his mother’s. He admitted that the mother was “a great mum’, but said that she was incapable of caring for both children. To avoid “what happened last time”, he wanted the court to choose him to be the one with whom the children lived. He proposed that the mother should have contact on alternate weekends and school holidays.
The father became somewhat emotional during his evidence, saying that he just wanted to see his kids. He wants to take an active part in their lives and to see that they had “a fair go”.
The father’s friend K S gave evidence on 13th December. She described the father as her boyfriend and said that the children enjoy having her there. She said that she and the father shared similar interests.
Ms S described the child S as “daddy’s little boy”, saying that he was obedient and the father was bringing him up well. She said that the boys and their father together were a loving family. She said that the father had set up the house and yard with toys and gamed for the children, including a swing and s slippery dip. She spoke positively about the father’s discipline policy with the boys, which consisted of admonishment and being sent to their rooms. She agreed that the father did raise his voice when arguing with the mother, but said that he was never abusive and only spoke to her in that way out of concern for the boys’ welfare.
She described the relationship between herself and the father as a serious one, and expressed the wish that they would be together.
The father’s mother, M J M, gave evidence on behalf of her son. She confirmed that she visited the children once a week when the parties separated the first time, and expressed the view that the mother “was probably going through a bad time” at that stage. She confirmed that the house had become very untidy and said that she did seven loads of washing for her at one time. Her view was that the mother loved the children very much, but could not “get her act together” at that time.
In cross-examination, the grandmother admitted that at times her son could be a fairly domineering person. She said that he may have spoken to the mother in a demeaning way but did not think that the father meant it to be demeaning.
The grandmother described the two children as “happy little boys … happy with both parents”. She expressed some reservations about the mother’s arrangements whereby there were four children sharing the one bedroom. She felt that the two boys needed time with their mother on their own.
The father also called his friend A D to give evidence on his behalf. This witness has known the father for about 10 years. He described the father’s actions with the boys in a positive way, including disciplining them by “yelling at them” in a stern voice and sending them to their rooms. He denied ever having witnessed conflict between the mother and the father when the child S was returned, but said that S would at times come home to his father’s and head straight for the bath.
The Court ordered that a Family Report was to be prepared, pursuant to section 62G of the Family Law Act. The report, prepared by Court Counsellor J B, noted that:
“Both parties are critical of the other’s behaviour towards the children. Both accuse the other of intimidating behaviour towards themselves.” (Family Report, Page 1).
The Counsellor described the father as believing that he is better able to cope with the care of the children, responding more effectively to difficult behaviour by them than the mother does. She said that he “does not believe that (the mother) can cope with the care of both children. He believes that (she) lacks organisational skills and that this has an adverse effect on her ability to adequately care for the children”. In particular, he said that:
“she was a good mother to A but that she has been ‘inconsistent’ in how she cares for S. He indicated that this was one reason why he did not leave S with (the mother) when they finally separated. He said that (she) had not even attempted to toilet train S, or ensure that he had received all his immunisations.” (Report Page 4).
The father also expressed concerns that A’s special needs meant that he required a structured environment to assist his learning. He believes that the mother has said that she cannot cope with this requirement. He also told the counsellor that if both children resided with the mother, she would not obey any court orders about contact between him and the children.
The Court Counsellor described the mother as having concerns about the father’s authoritarian style of parenting. Despite this concern, she said that she would leave the children with the father rather than some other person. She denied that she neglected the children and had no concerns about all four children sharing a bedroom (Report Page 8).
The Counsellor also interviewed the mother’s father (the children’s maternal grandfather) and her sister D Franovich, who gave evidence in these proceedings. The sister said that she was at that stage negotiating with the Department of Community Services about the care of W and C, the children of S, the other sister. S had been in the habit of moving frequently with the children and had left home without telling anyone where she was going, leaving the children behind. At the beginning of the hearing, the mother told the Court that S had since returned home.
The Counsellor interviewed both children. She described A as outgoing and happy. He told her that he often visits his father and enjoys spending time with him, because he misses him.
S did not respond to questions but displayed no anxiety at being separated from his family. He appeared to be within his developmental norms.
The father was observed involving himself in constructive play with the children. The Counsellor noted:
“The observation indicated that the children have a close bond to (the father), who appeared empathic and patient with them, and aware of their level of development. He appeared to facilitate their activities and manage their conflict in a supportive way.” (Report Page 13).
The Counsellor observed the mother wit the children, both her extended family members and by herself. The Counsellor observed:
“In summary the observation revealed that the children appear to have an affectionate bond with their mother. (The mother) was attentive and patient with the children, involved herself in their play activities, managed their conflict effe3ctively and was able tro organise them into tidying up.” (Page 15.).
The Report considers the three options involving the children, being placing both children with their mother, placing both children with their father and allowing the present arrangements to continue.
The option of placing both children with the mother was favoured in the report, because of the children’s close relationship with the mother and A’s indication that he has strong ties with both parents and his maternal relatives. The mother appeared mindful of the children’s relationship with their father.
The note of caution was expressed in that “It is not certain what the long-term outcome will be in regards to the residential arrangements of the boys’ cousins”. (Page 15).
The counsellor considered that contra indicators for placing both children with the father were his expressed lack of commitment to having both children placed with him and his negative views towards the mother. Against this, the Report says: (at Page 16):
“An indicator for this option is the close relationship that was evident between (the father) and the children. (He) also demonstrated effective parenting skills with his children, who responded well to him. There were no indications that (the father) has an authoritative style with his children, who appeared happy, relaxed and spontaneous in his presence.”
The Report also considers the option of the present arrangement continuing, with S remaining with his father and A remaining with his mother. Contra indicators were seen as the possibility of the weakening of the sibling bond, with A developing closer ties with his cousins, and the poor relationship between the parents.
Against this, the Report noted (at Page 17):
“An indicator for this option is that the children did not demonstrate any obvious signs of distress at this situation. It may be that the current arrangements may be of benefit in enabling each child to receive more individual attention from each parent, without having to compete with each other for this.”
Principles to be followed
In dealing with cases of residence and contact, the court must consider what is in the best interests of the children concerned. Section 68F(2) of the Family Law Act sets out a number of matters that the court must consider in determining what is in the best interests of the children. They are:
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;
b)the nature of the relationship of the child with each of the child’s parents;
c)the likely effects of any changes in the child’s circumstances;
d)the practical difficulty and expense of a child having contact with a parent;
e)the capacity of each parent to provide for the needs of the child;
f)the child’s maturity, sex and background;
g)the need to protect the child from physical or psychological harm;
h)the attitude to the child demonstrated by each of the child’s parents;
i)any family violence;
j)any family violence order
k)whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings;
l)any other fact or circumstance that the court thinks is relevant.
Section 68G(2) of the Act states that the court may inform itself of the wishes expressed by a child by having regard to anything contained in a report given to the court.
In H and W, (1995) FLC 92-598, the Full court of the Family Court said that the wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children (Fogarty and Kay JJ). In the same decision, Baker J held that 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.
As far as separating siblings are concerned, the general view is that a Court exercising jurisdiction under this Act would normally try not to separate siblings. There are however, circumstances where this does happen, including:
a)where children express strong views to be with a particular parent;
b)where the children have already been separated for a long time; or
c)where the siblings are half rather than full siblings.
Conclusions
In this case, there is evidence that there is a close bond between the children and each parent. The Family Report shows that A has strong ties with both his father and his mother. S is too young for any views to be expressed.
The placement of the children one with each parent, which has been the case since August 1999, seems not to have caused any distress to either child. Indeed, there appears to have been an improvement in the bonding between the children since the interim orders were made in August 2000. There is much to be said for an arrangement where each child receives individual attention from one parent. This is particularly important where A has a slight developmental delay and learning difficulty.
The arrangement where the children spend time with the their cousins seems to be beneficial to A, but there is a risk that S could be overlooked if he were one of four children in a household. The evidence points to the fact that he appears to be thriving in his father’s care.
There must also be a concern that the mother has previously experienced difficulty in caring for the two children when previously separated from the father. It is clear that she is not experiencing such difficulty where she has only one child to be concerned about and she is part of an extended family group caring for her cousins as well.
There would be a concern if the separation between the children meant that they were not spending time in each other’s company, but this is not the case here. They are spending weekends and school holidays together, and the parents were able to consent to workable and reasonable arrangements over the Christmas and January school holiday period, which meant that they spent the whole time in each other’s company, under the supervision of one or the other parent.
It is for these reasons that I consider that the present arrangements should continue, as they appear to be in the best interests of each child. The orders have already been made.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: AC
Date: 31 October 2001
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