MF and MRA
[2002] FMCAfam 517
•20 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MF & MRA | [2002] FMCAfam 517 |
| FAMILY LAW – Children – residence – contact – children’s wishes – where weight given to children’s wishes expressed in family report – where mother’s claim that family report was fraudulently prepared rejected – where mother’s submission that court has no jurisdiction where parties are living under the one roof rejected. |
| Family Law Act 1975 (Cth), ss.60B, 65E |
| H v W (1995) FLC 92-598 Bright & Bright v Bright & Mackley (1995) FLC 92-570 |
| Applicant: | F M |
| Respondent: | R A M |
| File Number: | PAM 3436 of 2001 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 March 2002 |
| Date of Last Submission: | 20 March 2002 |
| Delivered at: | Parramatta |
| Delivered on: | 20 March 2002 |
REPRESENTATION
| Solicitors for the Applicant: | D G Roberts & Co |
| Solicitors for the Respondent: | Atkinson Vinden Heazlewoods |
ORDERS
All prior parenting orders are discharged.
The children, M T M, born 23rd February 1989 and R A M, born
5th November 1992, are to reside with the applicant father who shall have the sole responsibility for the long term and day-to-day care, welfare and development of the said children.
The respondent mother is to have contact with the said children as follows:
(a)during school term time between the end of school on Friday and 7 pm on Sunday.
(b)during school holiday periods at such times as the applicant and the respondent shall agree.
(c)on each of the children's birthdays for a period of up to four hours if that day should fall on the day when the children are not required to attend school and for a period of up to two hours if that day should fall on a school day.
(d)at such time on Christmas Days the parties shall agree.
Contact pursuant to Order is to take place at the home of the mother's parents or at the home of one or other of the mother's sisters or at such other place as the parties shall agree.
The respondent is to vacate the premises situated at and known as
W P, E P in the state of New South Wales within 21 days from the date of this order and thereafter is not to enter or remain upon those premises without the express consent of the applicant.
Neither party is to remove or attempt to remove the said children from the Commonwealth of Australia without the written consent of the other party or leave of the Court except that the applicant shall be permitted to remove both children from the Commonwealth of Australia for a period of up to 28 days for the purpose of either child attending his rugby league team's end of season overseas trip or participating in any other sporting activity.
The applicant is to provide to the respondent with written information about the itinerary including dates of departure from and return to Australia of any overseas trip referred to in Order 5 no less than 14 days prior to the date of departure.
All exhibits are to be returned after the expiry of one month from the date of these orders.
All documents produced on subpoena other than exhibits are to be returned forthwith.
All other outstanding applications are dismissed and the matter is removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3436 of 2001
| F M |
Applicant
And
| R A M |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of two boys, M T M, aged 13 and
R A M, aged 9, for orders to the following effect:
a)That the two boys should reside with him and he should be responsible for their care, welfare and development;
b)That the mother should vacate the home in which she, the father and the two boys are living; and
c)That neither party should remove the boys from Australia, except for an end of season trip for one of the boys' football teams.
For her part the mother seeks that the father's application should be dismissed on the grounds that the parties are reconciled. The father is 36 years of age, having been born on 17th February 1966. The mother was born on 7th July 1966, so she is still aged 35 years. The parties were married on 27th February 1988. The elder child, M, was born on 23rd February 1989 and R, the younger child, was born 5th November 1992. Both children attend school. The father says, but the mother denies, that the parties first separated in 1988 when the parties were living in rented accommodation in E P.
He claims that the mother began spending more and more time away from home and was referred to a psychiatrist by her general medical practitioner. The father details a number of occasions when he says that the mother would leave and take the children away with her.
He claims that she took the children to C without his consent in September 1988. The children returned to live with him and the mother took herself off to New Zealand for three weeks before returning to the matrimonial home. In December of that year, the father claims, the mother again removed the children from the matrimonial home and took them to G in Q. The father brought them back and the mother remained in G for a short while until she returned to the matrimonial home.
In August 2000 the family moved to another house in E P. In October of that year the father says the mother removed the children to a place in M D. The father brought the children back but the mother again, he claims, attempted to take them to live in M D on 13th November. The mother removed the children again, according to the father, on 24th September 2001. This time she took them to an address in F. It was this action that brought about the father's application, which was filed on 8th October 2001. The mother herself took proceedings with the Local Court, she sought an apprehended violence order from the P Local Court on behalf of the children and herself and an interim order was made.
She also applied to the P Local Court on 31st October 2001 for an order that the children should reside with her. On 16th November 2001 this Court made orders, on an ex parte basis that the children were to reside with the father. At that time the mother had given an address in B as her place of residence, this address appearing on her residence application to the Local Court. The children have resided with the father since that date. On 22nd November 2001 the mother's application for residence came before the P Local Court. By consent, the proceedings were transferred to the Family Court at P, with a view to that Court transferring the proceedings to this Court. In passing, I would comment, that it is a source of some administrative difficulty that a Magistrate in the Local Court does not have the power to transfer family law proceedings directly to the Federal Magistrates Court.
I suggest that the legislature should consider an amendment to the legislation.
An interim hearing took place at this Court on 14th December 2001.
At that stage the mother was represented by a solicitor, Mr Smith.
The Court made orders that the children should continue to reside with the father and that the mother should have contact. A family report was ordered and the matter was listed for final hearing on 20th and 21st March 2002. The mother, who had been residing at the home of her sister, left that residence on 16th December and took up residence in the home of W P, E P, which the father purchased in his sole name on 20th November 2001. The parties give differing accounts of the mother's occupation of that house.
The mother's application for an apprehended violence order was dismissed by the P Local Court on 25th January 2002 after a defended hearing. On 19th and 26th February 2002 interviews were conducted by a regulation 8 welfare officer, Mr H, for the purpose of preparation of a family report. The father attended with the children, the mother did not attend. There are differing accounts, given by the parties, as to the circumstances leading to the mother not attending for the purpose of the family report, and I shall deal with this issue a little bit later. The report was completed, in so far as it could be completed without any input from the mother. The report is now before the Court. The regulation 8 welfare officer was not required for cross-examination.
It is of significance that the father claims, and the mother denies, that the mother has had some psychiatric difficulties since 1998. The father says that the mother was referred to a psychiatrist in 1998. The mother, for her part, says that she is in good health, that there is nothing wrong with her. The father has said that the mother assaulted him in April of 2000 and that she, on a subsequent occasion in August of that year, damaged the father's car. The mother says that it is the father who has exhibited violence on numerous occasions throughout the marriage. The father says that, on 19th March 2001, the mother threatened him and threatened the child, R. He says that the mother was, in fact, removed by the police and admitted to the P psychiatric unit at N Hospital.
The father also says that the mother was again taken, against her will by the police, to the P psychiatric unit at N Hospital on 26th October 2001, shortly before, it will be noted, the mother commenced her application to the P Local Court. I make it quite clear, that despite the allegations by the father, the mother denies any psychiatric illness or disorder. As I said, she says that there is nothing wrong with her. The situation now is that the mother is residing in the home at W P. The father says that she should leave. The father says that she has other places to go; she can stay with other members of her family. The father says that he permitted her to remain after 16th December because she had had a falling out with her sister, with whom she had been residing, as a result of the sister giving some evidence in the proceedings before this Court on 14th December, but the mother denies that.
The mother admits that the sister gave evidence. The mother says that the sister has, in fact, resiled from that evidence and now admits, according to the mother, that she told lies and was duped or persuaded into giving that evidence as a result of some persuasion by the father and that the sister did so in the belief that that would assist the children and assist the parties to come together. As it turns out, the sister did not give evidence. The applicant father relied on an extensive and detailed affidavit, sworn on 13th March 2002, and was cross-examined on that affidavit. The father also relied on the family report, and also sought to rely on an affidavit by the wife's sister, which was originally prepared for the purpose of the interim hearing on 14th December and was in fact used in those proceedings.
The sister was in fact cross-examined by the solicitor who was acting for the wife at the time. Mrs M indicated that the evidence given by her sister on that occasion was in fact wrong; in fact she said that it was “lies”, and if the sister were to give evidence in these proceedings then she would be in a position to tell the Court that her evidence was incorrect. I took that as an indication that the sister was required for cross-examination. I was informed by the father's solicitor that she was not available. I am of the view that in the circumstances I should not attach any weight to that affidavit of the sister and I have not referred to it in the preparation of this judgment. The mother relied on her affidavit, which was filed in Court and used on 10th December, and in fact was used by her on the interim hearing in December.
The mother had also produced a document yesterday, which she prepared as a response largely to the family report. I should make it clear that the mother is no longer legally represented. She informed the Court yesterday that the solicitor, whom she had previously instructed, Mr Smith would not be appearing. An application had been made for legal aid, which was unsuccessful. No Notice of Ceasing to Act appears on this file but the mother, on 8th March, filed a notice of address for service. In that she gave her address for service as
W P, E P, being the home purchased by the father in November. When the proceedings commenced yesterday the mother indicated that her opposition to the proceedings commencing on the ground that the parties were now living together and she said that they were reconciled.
The father denies the reconciliation, and through his solicitor sought to proceed with the application. The mother raised the point that, where parties to a marriage reside together under the one roof, a Court has no jurisdiction at law to entertain proceedings for residence orders. I am not satisfied that that submission represents the law in Australia and I was not satisfied at the time that the parties had in fact reconciled. Accordingly, I was of the view that the matter should proceed.
I declined to dismiss the matter summarily. The mother then sought an adjournment on the basis that if the matter was to proceed that she should have legal advice. The father opposed the adjournment.
I considered the application for an adjournment but I declined to grant the adjournment for legal advice. The matter had been listed for a defended hearing on 20th and 21st March. It was known to the parties, from 14th December, that these were the dates listed for hearing.
The mother indicated that she had been made aware at some stage in February that her application for legal aid had been refused and that her solicitor, Mr Smith, would not be acting for her. And, indeed, she had filed a notice of address for service on 8th March, a fortnight before the hearing - or 12 days before the hearing, more correctly, indicating that she was unrepresented. I am of the view that, had the mother sought legal representation, there was time for her to do so. I was conscious of the fact, however, that, due to the apparent failure by the mother's solicitor to file a notice of ceasing to act, the father's solicitor had forwarded certain documents to the solicitor, whom he believed still be acting.
They included the father's affidavit, sworn on 13th March, and the case outline document. The mother indicated that, whilst she had received some other documents from her solicitor, she had not received those. Proceedings were stood down so that copies of those documents could be given to the mother and that she should be allowed time to read them. Once that had been done the matter proceeded. The mother, as I said, sought to make use of a document, which she had prepared herself, largely in response to the family report, which she challenges. The document is not an affidavit but, after a copy of the document was provided to the father's solicitor, Mr Shepherd, he indicated that, whilst making formal objections as to form, relevance and other evidentiary matters, that he would not otherwise oppose the document being made use of by the mother in these proceedings.
I have proceeded to allow her to make use of that document, and in fact a copy was made available to the Court. I regard it, whilst not an affidavit, as a document in the nature of a proof of evidence.
It contains some statements of fact and some statements which, more appropriately, to be regarded as submissions. The father gave evidence and was cross-examined; the mother gave evidence and was cross-examined. Both parties made submissions to the Court. Now, one issue that was of particular relevance was the fact that the mother did not attend for the interviews arranged for the preparation of the family report. The father says that the mother was made aware of these matters, he was certainly made aware and he arranged to take the children to the interviews on 19th and 26th February.
In the background report, paragraph 2, the writer of the report, Mr H says that:
Interviews were organised for the preparation of this report on
19th February 2002. Mr M and his sons, M and R, attended, however, Ms M failed to attend. Further interviews were organised on 26th February 2002 in order that Mrs M's views might be canvassed and explored. These arrangements were confirmed with Mr M on the morning of 26th February 2002.
At the appointed time Mr M and his sons attended, Ms M failed to attend, Mr M explaining that she changed her mind about attending, following the earlier conversation.
Mr H goes on to say that:
Reports based solely on information provided by Mr M, M and R.
Mrs M says that she was just not made aware of the times for the appointments, which is contrary to the evidence of Mr M and contrary to what is set out in the background report. It is a matter of some surprise that Mrs M had been in Court and legally represented at the time when the order was made on 14th December for a family report that she was not aware that the report was to be prepared. It can only be assumed that a solicitor, until he received advice that a grant of legal aid was not made and was acting as a solicitor normally would in keeping his client informed of such proceedings, and I am of a view that a responsible solicitor, acting for a party in parenting proceedings where a family report had been ordered, would have made sure that his client would attend the preparation of the family report.
It is of importance that both parties give their input to the report so that the Court can receive a balance document. It is not to the assistance of the Court to have a one-sided document, and it certainly does not assist the party who does not attend. The mother, in her submissions relating to the family report, attacks that document, in this document which I regard as a proof of evidence she says:
The family report was frauded by Mr M and M S -
He being the father's solicitor -
and the interviewers, G T and R H.
She says:
I was never advised in writing or verbally about the family interview on 19th February 2002 and 26th February 2002.
This was done secretly, without my knowledge, by the interviewer, G, welfare officer, R H, M S and Mr M. This family report was done in secretly by fraud.
Notwithstanding the fact that she did not attend the mother was able to give, what she said was, her account as to what happened at the interviews. She said, and I quote:
My sons were driven to Family Law Court, P, secretly by their father, R M and they did not stay long for any interview. Only my eldest son, M M, was interviewed by a man called H. He told M to call him "H." All Mr H asked my son, M, was, "How is the family going?" said H. Michael responded "good." And M told Mr H, "my mother, F M, has been looking after I and my younger brother, R junior, during the weeks and the weekends and also my mother made our lunches for school. Then at the end of the interview with my son, M, M said "there was less than 2 minutes and then dad drove us straight home." R junior was never interviewed, nor the father, Mr M.
That, of course, is in stark contrast to what the author of the report,
Mr H, says. He indicates that he interviewed the father in some detail, also describes an interview with M and he also describes an interview with R. The mother persists with her view that the family report is in fact a concoction, a fraudulently prepared document, saying, and I quote:
As after a week from that brief of less 2 minutes interview with M only Mr H and G T and S frauded and conned and typed the family report and forwarded the family report to my solicitor, Mr Smith. They should never ever allow any frauds in the Court of law or associates in any sort of frauds or cons act in the Family Law Court. The Family Law Court is a Court of honesty but interviewers and solicitor and very dishonest as con artists of involvement in the performances of frauds, according to the law and the society: frauds are unacceptable.
The mother goes on to say:
I objected to this, I was never known or notified in writing about any family reports on 19th February 2002 and 26th February.
Those then are the views of the family report and the challenge to it. The mother, in her cross-examination, persisted with her accusations that both the father and the father's solicitor had conspired to prepare this document. The mother did not require the author of the report,
Mr H, to give evidence and he certainly was not sought by the father's solicitor. Ms T, the acting director of Court counsellor, also accused by the mother as a party to the conspiracy, was not required to give evidence. The allegation that a document, in the nature of the family report prepared by a person for the purpose of these proceedings, under the authority of the Court order and arranged by the acting director of Court counselling, the allegation that such a document is fraudulent is a very serious allegation indeed.
I am satisfied, on the evidence before me, that I cannot accept the allegation whatsoever. I am not satisfied that there appears to be any evidence of any irregular practice about the preparation of the report, let alone a conspiracy to produce a fraudulent document. I reject the allegation and I propose to accept the family report, which was prepared as a result of an order made by this Court. The father was cross-examined at some length and it was put to him, on more than one occasion, that he, throughout the period of the marriage, exercised a considerable degree of violence towards the mother. He denied that violence.
It was put to him that he was affected by various substances which he took. It was put that he took up to 16 tablets or vitamin supplements, or other substances each morning, which had an affect on his behaviour and may or may not have led to the violence that the wife alleges.
The father denied, on more than one occasion, that he did in fact take up to 16 tablets per day. He admitted to taking certain vitamin substances and he admitted to making use of a produce known as: Whey powder. He denies encouraging either of the children to take any of these supplements, although he admitted, under cross-examination, that on occasion one or other of the children had asked him what the drink, made out of Whey powder, tasted like and he allowed them to have a sip.
He described the drink made out of Whey powder as: being not unlike a milkshake, which is hardly surprising, because the Court can take judicial notice of the fact that Whey powder is in fact a dairy product. There is no evidence before me that the consumption of dairy products produces any behavioural change in people, certainly not that leading towards violence. Despite these allegations of continual violence, the mother says that the parties are in fact reconciled and that she wishes to remain reconciled. As to her moving into this house, purchased in W P, E P, there are two different accounts given of that. The father says that: after the mother left, or was required to leave her sister's home as a result of a difference of opinion between the sisters arising from Ms F giving evidence in proceedings before this Court on 14th December, that the mother entered this home without being given a key and without the father's consent.
He says that he has allowed her to remain, for the time being, because at that stage she had nowhere else to go and he had no wish that she should become homeless. The mother, however, says that she in fact planned to go somewhere else. She says that she left the home of her sister, Ms F, on friendly terms with that sister as, indeed, she is still on friendly terms and it was her plan that she would reside, for the time being, with her other sister who lives in L. However, 16th December being a day on a weekend, she says that: the father had gone away to work for the weekend and had left the children unattended and it was as a result of the children's complaints of being left alone and their request, that she come and look after them, that she in fact changed her mind for moving to her sister's place at L and took up residence in the home in E P. So the accounts given by the parties vary substantially.
It is significant at this stage to look at what arrangements are proposed. The mother, of course, proposes that the arrangements remain the same and that she seeks in fact that the father's application just should be dismissed. She indicated that the violent behaviour that she attributes to the father is at least brought into line by the obtaining of apprehended violence orders, and indicated that it may well be necessary for her to seek such an order in the future. She says that she has certainly been the sole caregiver, certainly in the last few years, although the father is now giving her some assistance. Father says that he has really been the sole caregiver since 1998. He in fact spent a period of time until May 2001, where he was not in employment and was in fact engaged as father on a full-time basis.
Since then he has obtained work as a miner in the H V. He is able to do three 12-hour shifts on a weekend, Friday, Saturday, Sunday, and that then makes him available to reside back in E P during the week and work as a full-time father for the children during that period of time. He says that, when he is away, the children go nearby to their maternal grandparents and their aunt, Ms F. He says his relations with the aunt and that the maternal grandparents are good and that they in fact care for the children whilst the father is away at work. During the week he comes back and he is a full-time father. Those are the arrangements, he says, take place at the moment and those are the arrangements that he proposes to continue.
He indicates, however, that he wishes to reside with the children in a house in W P, E P and that he is not conducive to the well-being of the children that the mother should remain there, certainly without the father's consent. He seeks an order that she be asked to leave and remain away. He does not oppose the mother having contact with the children on the weekend, which is at a time, of course, when they are having contact with their grandparents and their maternal aunt. What then are the principles when a Court is asked to make orders for residence and contact, under the Family Law Act, should consider.
I look at s.60B of the Family Law Act. Section 60B sets out the object of part 7 of the Family Law Act relating to children. Section 60B(2) sets out the principles underlying the object. The object, of course, is to ensure the children receive adequate and proper parenting to help them achieve their full potential and to ensure the parents fulfil their duties and meet their responsibilities concerning their care, welfare and development of their children. The principles underlying those objects, which are set out in s.60B(2) are that:
a)The children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married and have never lived together; and
b)The 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; and
c)That parents share duties and responsibilities concerning their care, welfare and development of their children; and
d)That parents should agree about the future parenting of their children.
The golden thread which runs through the Family Law Act, as far as children are concerned, is that set out in s.65E of the Family Law Act. Section 65E says that:
In deciding whether to make a particular parenting order, in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
It is quite clear that that principle, which I have described as “the golden thread”, must be in the forefront of the consideration of the Federal Magistrates Court and, indeed, of any other Court exercising jurisdiction under the Family Law Act, regarding children. How does the Court work out what the best interests of the child are? A number of matters, are set out in s.68F(2) of the Act.
They are matters that a Court must consider when determining what is in a child's best interests. There are 12 of them in all, form sub-s.68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case but all of them must be considered as the Court has done in this matter.
On that basis, the father's solicitor, Mr Shepherd, has referred the Court to a number of the matters set out in sub-s.68F(2) of the Act. Sub-s. 68F(2)(a) 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 may be relevant to the weight the Court should give those expressed wishes. The child's maturity, as well as the child's sex and background, are also to be considered, I note, under
sub-s.68F(2)(f). The wishes of the child to be considered in some detail by the Full Court of the Family Court of Australia in the case in H v W (1995) FLC 92-598 Fogarty and Kay JJ of the Full Court held that:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. 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, among other factors, the strength and duration of the 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, Baker J, held:
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 the separate representative, if there is one, submits that the Court should give effect to such wishes.
His Honour went on to say that:
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 an individual case.
It is submitted, on behalf of the father, that both the father's affidavit and the family report indicate that both boys have expressed a clear wish to reside with the father and have expressed certain fears, it is put to me, about residing with the mother. I turn to the family report and I would comment that in matters of this nature, where there is such diametrically opposed evidence relating to the children, that a family report can provide an independent account to the Court of what the children's wishes are. It does not follow, of course, that a Court will follow what is in the family report as the Court has the opportunity to consider all of the evidence and to see all of the parties, but the family report can often be a useful guide.
I have previously considered a challenge to the validity of the family report by the mother and I have rejected that challenge. The writer of the report described the father as impressing him as being a caring father who is somewhat bewildered by the circumstances he now feels exists in the marriage, and I quote:
He stated clearly that his primary concern was to ensure the safety of his sons, he could no longer trust that their mother was capable of this. In some respects it appears that he still cares for his ex-wife. He feels that his trust has been betrayed, he now feels vulnerable to further betrayals.
The reported looks at the views of the children. The mother indicated that only M was interviewed and that for only 2 minutes, and gives a very brief account of what she says is said to the reporter.
The report gives a different view. In paragraph 9 of the report M is described as I quote:
A healthy teenager who was distressed by the current litigation and friction between his parents, and has been very clearly aligned with his father. He was, however, clear that he loves his mother but feels that he can no longer depend on her.
He went on to tell the counsellor:
I can't trust my mother no more, we fear she might take us somewhere and we want to be with our dad.
M went on to describe somewhat bizarre behaviour by the mother and antagonistic behaviour towards the father, saying:
She's acting good now and she's good on weekends until dad gets back and she starts accusing.
He went on to say, and he described his father as "a good man and I trust him," and he expressed a concern that his education would suffer if his mother kept removing him from school. The child, M, commendably expressed concern about the affect of his mother's behaviour on his younger brother, saying:
R gets upsets a lot by mum and runs to his bedroom and cries.
The younger child, R, was interviewed by the counsellor and was described as follows:
R impressed as an extremely pleasant young boy who is confused by his mother's behaviour and strongly aligned with his father, who appears to offer him a sense of security and stability. He was extremely thoughtful before answering any questions and was at pains to try and be fair to his mother. Like his brother, he constantly emphasised that he loved his mother but no longer felt that he could trust her.
Paragraph 15 of the report:
R describes how his mother had in the past taken us away and we'd miss school and football, she hides the car and then drags us there and takes us places.
R stated that when this occurred he became scared and didn't know what to do. R went on to describe the bizarre behaviour by his mother which, he said, distressed him. Paragraph 17:
R was clear that he feels strongly bonded to his father and sees him as a safe person to be with.
He stated:
I love my dad and trust him, he doesn't take us away and he's not crazy, he doesn't lie and I can trust him.
The counsellor concluded that:
R perceives his father to be the safe adult who will protect and care for him, he also displayed a strong bond to his brother.
These then are accounts of an independent report as to the wishes of the children relating to the parents. They are strong wishes which coincide with each other to some extent, no doubt, affected by the fact that the children primarily with their father. The children, however, are of an age where weight should be given to their wishes. The elder child, M, has now turned 13 and R is 9, and will be 10 later this year. They are of an age where they can express wishes and give reasons for them and it is clear from the report that they have done just that. I am of a view that I should attach a significant degree of weight to the expressed wishes of the children.
The Court, must also consider the nature of the relationship of the child with each of the child's parents and with other persons. It has been submitted by the father that he has been the primary carer of the children since 1998, the mother denies that and says that she has been the primary carer of the children and that it is only recently that the father has given her some assistance. It is significant that the boys express some concern about the behaviour of their mother and some lack of trust as a result of this bizarre behaviour of being taken away from their residence in school on more than one occasion. It is also clear that the children love their mother and desire a peaceful life. There are other matters, of course, that should be considered under
s.68F(2)(b), which includes not only the relationship of the child with the parents with other persons.
The evidence here is that the children have a considerable degree of contact with their maternal grandparents and with at least one of their maternal aunts. There is no evidence whatsoever to suggest that the children's relationship with the grandparents and aunt is anything other than a good and positive relationship. As far as the grandparents are concerned, I'm mindful of the case of the decision of Bright & Bright v Bright & Mackley (1995) FLC 92,570, where Treyvaud J considered the desirability of a child having contact with the grandparents, in the light of the welfare of that child being the paramount consideration. His Honour said that, and I quote:
It is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
That was at page 81,658 of the report. It is clear that, under the current arrangements orchestrated by the father, the children are having regular contact with grandparents and at least one aunt, and I am of a view that this is a positive factor in respect of the welfare of the boys.
Sub-s.68F(2)(c) requires the Court to consider the likely affect of any changes in the child's circumstances, including the likely affect of separation from a parent or any other child, or any other person with whom that child has been living. It is submitted that there's no evidence to suggest the father's primary care of the children has any negative affect. It is clear that it is proposed that the children should reside together, and I am mindful of the comments in the family report that the two boys appear to have a strong bond to each other, which is no doubt a source of great gratification to both parents.
The mother's proposal is that the application should be dismissed, which would involve the children staying where they are, still having contact with their parents, still having contact with grandparents and aunt and remaining at the same school. It is a matter of concern, however, that there have been allegations of the mother living elsewhere, and there's been one piece of evidence showing that at one stage the mother acquired a mobile phone and gave an address at W as the address for that mobile phone. The mother denies that she ever lived there and indicated she only used that address for privacy reasons, because she accused the husband of reading her mail.
I would comment, however, that it is an odd situation that the mother should find the need to have a separate address for the use of something like a mobile phone. It is important to consider the practical difficulty in expense of a child having contact with a parent, as set out in sub-s.68F(2)(d). There is no difficulty, as far as this Court can see, in the children having contact with either parent. It is part of the father's case that he does not oppose the children's contact with the mother and, indeed, it would appear that the weekends, when he is away and the children are being looked after by maternal grandparents and aunt, would be a highly suitable time for the children to have contact with their mother and there is evidence before me that the children love their mother and want to have contact with her. I do not see any difficulty as far as that is concerned.
The Court must consider the capacity of each parent where relevant to provide for the needs of the child, including emotional and intellectual needs. It is submitted, on behalf of the father, that he has demonstrated a capacity to care for the children during the time in which he has been the primary carer. The father says that the mother's capacity raises concerns due to her changes of address, her aggressive behaviour towards the father, to some extent towards the children, it is submitted. Her attempts to relocate the children and her admissions which she denies to the psychiatric centre. Whilst the mother denies the changing addresses, it is significant that the documentary evidence before the Court indicates different addresses given by the mother. The mother, as I indicated previously, had given this address in Wentworthville for the purposes of the mobile phone. In the apprehended violence proceedings, commenced in the Local Court in P, the mother gave her address as P S, E P. This in fact appears on apprehended violence order, made on 13th November 2001, the interim order.
On 31st October mother gives her address as T T in B. That short period of time, here is the mother of her own volition in giving three separate addresses. This is a cause, to my mind, of significant concern as to stability and it is clear that stability is required for children. The children's accounts of the bizarre behaviour by the mother cause concern, as far as the mother's ability to provide for the children's emotional and intellectual needs. The children have described their concerns in the family report, as has the father. The father has expressed the opinion that the mother has had psychiatric hospitalisation and suffers signs of paranoid schizophrenia.
The children describe this bizarre behaviour that the child, M, referring to the mother: as believing that satellites can see her. The younger child, R, expressed the opinion the mother has claimed that: there were cavities in the walls where people are hiding, the television can see us and the stars aren't really stars, they are satellites and only channel 44 on the television can protect us. One would comment that the allegations of a conspiracy between the Court counselling section, the father and the father's solicitor to produce a fake family report has a paranoid overtone, to put it mildly. Sub-s.68F(2)(f), as I indicated earlier, requires the Court to consider the children's maturity, sex and background and any other relevant characteristics.
The children concerned are boys aged now 13 and 9 they are interested in sport. The older child, M, plays rugby league. The children have a Tongan ancestry on the mother's side. The father says that he has fostered their involvement in the Tongan community and he has facilitated contact between the children and their extended family on the maternal side. He claims that he recognises the importance of their ongoing involvement in the Tongan community and the Tongan relatives and proposes to continue to facilitate their involvement. It is quite clear that the children have regular weekly contact with the maternal aunt and with their grandparents.
It is significant that this side of their family plays a strong role in the children's lives and that this is something which the father is not only aware of but supports. It is also important that the Court take into account the need to protect the children from physical or psychological harm, either by directly subjected or exposed to abuse or treatment, violence or other behaviour, or by seeing or hearing another person being subjected or exposed to such treatment. The mother claims repeated violence, continual violence by the husband over a period of time, which has led to the taking of apprehended violence orders. The father deposes to incidents of violence on behalf of the mother.
Notwithstanding this violence claimed on the part of the mother against the father, the mother wishes to continue residing in the same residence with him and with the children. If there is this continuing violence, brought about by the steroid abuse, which the mother claims, it is surprising that the mother does not seek that she and the children should reside elsewhere. I am certainly of a view that continuing acrimony between the parties and the mother's bizarre behaviour has the ability to cause some degree of psychological harm on behalf of the children, leading to distress and anxiety.
The Court must also look at the attitude to the child and to the responsibilities of parenthood displayed by each parent. It appears that the father has arranged his work commitments so that he does a lot of work in a short period of time on weekends, freeing up the weeks to be available to look after the children, and that he has made arrangements for the children to be cared for by the maternal grandparents and aunt, who live nearby. This would appear to be an arrangement by the father to do the best that he can to support the children, also to see that they are supervised. The mother disputes that the father attends to this supervision, that she says that the children are left unattended by the father when he goes away. It is significant, however, that there is accounts of the mother taking the children away at different times to live elsewhere, and yet when the opportunity is given for her to live elsewhere, refusing to move.
This would, to my mind, be a sign of some ambivalent attitude towards the responsibilities of parenthood on the part of the mother. Now, the occurrence of family violence is, of course, a matter I have already touched on and is a relevant matter that the Court must look at whether there is a family violence order, as the Family Law Act refers to it, or an apprehended violence order, as set out in the New South Wales Crimes Act in force. There was an interim order as a result of the proceedings commenced by the mother. She says that she has sought similar orders before. It is to me significant that on 25th January 2002 the mother's application for an apprehended violence order was heard on a final basis in a defended hearing before the Local Court at P. The learned Magistrate dismissed the application.
The mother's explanation that the application was only dismissed because the parties had reconciled and were living under the one roof, and that the Magistrate, therefore, did not have any jurisdiction to make such an order, is an explanation difficult to accept. The mother would have had to have shown that she had reasonable grounds to fear and in fact feared violence by the father, and quite clearly the Local Court was not satisfied that that had been demonstrated and dismissed the application. It is not my task to go beyond, or to go behind the judgment of another Court, nor do I seek to do so. I accept the judgment of the P Local Court at its face value. I find there is no apprehended violence order in force.
The Court must look at whether it would be preferable to make an order that in all the circumstances would not lead to any further litigation. This often involves an act of prediction on the part of the Court. All I can say at this stage is that I am of a view that the order which I am going to make, which will provide that the children continue to reside with their father, is the most appropriate order in the circumstances. It may lead to further litigation on the part of the respondent but that is entirely a matter for the respondent. I am also required to consider any other relevant fact or circumstance. This matter is relevant in view of the fact that the father has asked, somewhat unusually, for an order that the mother should be required to leave her home in W P, E P, which the father has purchased in his own name as a home for himself and the boys.
It is an order of some seriousness that is sought and it is not an order which a Court would make without some serious consideration.
The concern that I have is that the mother's condition is such that she is subject to bizarre behaviour and bizarre accusations of a paranoid nature. I am of a view that that would be extremely destabilising to the boys. The mother, in Court, has made a number of bizarre accusations, not the least of which is the allegation of a conspiracy to produce a fraudulent and, in fact, fake background report. I am of the view, therefore, that the presence of the mother in the home, on a full-time basis, is not in the best interests of the children. I accept that the children love their mother; they also have a need for stability.
If the mother is present in the home when the father is there then her hostility towards him, notwithstanding the fact that she claims that they have reconciled, is so great that there will be continuing friction and acrimony. If the father is away the children can spend time with their mother, not in the presence of the father. I am of a view that if the mother is to see the children, well, then it should be done in circumstances when members of her own family, her parents or sisters are present. Clearly, there will need to be some time for the mother to make arrangements to vacate and she should be allowed that time. Certainly, she has two sisters with whom she claims to be on good terms, and in fact one sister, the sister at L, she said she was going to move in with anyway on 16th December but was persuaded to do otherwise by the children.
The only other order that is sought by the father relates to restrictions on both parties removing the children from the Commonwealth of Australia, except for taking the boys overseas at the end of next year when the child, M's rugby league team, goes on an end-of-season tour to another country. Certainly I am of the view that children participating in a sporting activity in another country, under parental supervision, would be highly beneficial to the children's welfare. It would be an educational and eye-opening experience, which would broaden the children's minds. I am of a view that both boys should be given the opportunity to take part in sporting tours to other countries, under the supervision of their father and other responsible people.
If one child goes on a sporting tour, whether it is rugby league or swimming, or whatever, then it would be clear that the father and the brother should be able to go with them, subject to the father's finances, which would involve not only a pleasant holiday but also sporting competition and a considerable degree of education. It is for the reasons that I have brought out over the past hour or so that I propose to make the orders that I have foreshadowed.
I certify that the preceding seventy-one(71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 6 June 2006
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