Morales and Morales
[2010] FamCA 435
•12 May 2010
FAMILY COURT OF AUSTRALIA
| MORALES & MORALES | [2010] FamCA 435 |
| FAMILY LAW – CHILDREN – Child related proceedings – one child of the marriage – both parents hearing impaired – issues of mental and physical ill health – poor communication between the parents – issues relating to early morning care arrangements of the child when with the mother – impact on the child of the relationship between the parties – allegations of family violence, child abuse and neglect – dramatic change in child’s previously expressed wish – extent to which those views have been influenced by others – effect on the child of continuing parental disputation and litigation – nature of child’s relationship with each parent – deterioration of relationship with mother – father seeks changes relating to the child’s schooling – asserted difficulties with orders previously made in 2005 |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Amador and Amador [2009] FamCAFC 196 |
| APPLICANT: | Mr Morales |
| RESPONDENT: | Ms Morales |
| INDEPENDENT CHILDREN’S LAWYER: | David Duncombe |
| FILE NUMBER: | PAC | 5348 | of | 2007 |
| DATE DELIVERED: | 12 May 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 19 – 22 April 2010 6 May 2010 and by written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Greenway |
| COUNSEL FOR THE RESPONDENT: | Mr Maddox |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Stollier |
Orders
All previous orders in respect of R (“the child”), born … March, 2000 be and are hereby discharged.
The parents have equal shared parental responsibility for the child.
The child is to live with the mother during New South Wales school terms from the conclusion of school Thursday until the commencement of school on the following Tuesday each alternate week commencing on the first Thursday of each school term. The first occasion of this time is to commence on the second Thursday after the commencement of these Orders, provided the mother is able to fulfil the conditions set out hereafter. THIS ORDER IS SUSPENDED until such time as the mother’s work commitments permit her to be able to deliver the child to her school at the commencement of the school day or alternatively the mother has put in place an arrangement for the care of the child on school day mornings which does not require the child to wake before about 7.00 a.m and which sees her delivered to school by a person approved (in writing) by the father. The father is not to unreasonably withhold any such approval.
DURING THE PERIOD OF SUSPENSION of Order 3 hereof, the child is to live with her mother, during the New South Wales school term, each alternate weekend from the conclusion of school on Friday until 6.00 p.m. Sunday (or 6.00 p.m Monday should Monday be a public holiday). The child is further to be in her mother’s care each Wednesday (or a different day which the parties may agree upon in writing from time to time) from after school until 7.00 p.m. On the Wednesdays (or the day substituted by written agreement between the parties) specified in this Order the mother is to return the child to her father at 7.00 p.m. by delivering her to the father’s residence.
The child is to live with the Applicant father at all other times during the New South Wales school term.
During New South Wales school vacation periods the child live with the Applicant father during the first half of such periods in odd numbered years and the second half in even numbered years.
During the New South Wales school vacation periods the child live with the Respondent mother during the first half of such periods in even numbered years and the second half in odd numbered years.
Notwithstanding any other order herein the child shall live with the Applicant father at the following times:-
(a)On the Father’s Day weekend from 5.00pm Saturday until 5.00pm Sunday;
(b)From 9.30am on Christmas Eve until 9.30am on Christmas Day each year; and
(c)From the conclusion of school, if a school day, or from 3.00pm if a non-school day, until 8.00pm on the child’s birthday if she is living with the mother on that day.
Notwithstanding any other order herein the child shall live with the mother at the following times:-
(a)On the Mother’s Day weekend from 5.00pm Saturday until 5.00pm Sunday;
(b)From 9.30am on Christmas Day until 6.00pm on Boxing Day each year;
(c)From the conclusion of school, if a school day, or from 3.00pm if a non-school day, until 8.00pm on the child’s birthday, if she is living with the father on that day.
New South Wales school vacation periods are deemed to commence upon conclusion of school on the last day of school term and conclude upon recommencement of school on the first day of the following school term. (pupil free days are to be treated as part of school holidays)
For the purpose of giving effect to the Orders herein, and in the absence of other specific agreement, each party shall collect the child at the commencement of their time with her from her school, if commencing on a school day, or otherwise from the Shell Service Station at C.
The parties shall communicate in respect to issues relating to the care of the child by email.
Each party shall be entitled to communicate with the child on a reasonable basis by telephone, text message, email and/or skype (should those services be available in each home). Each party is to facilitate any reasonable request by the child to contact the other parent by telephone, text message, email or skype.
Each party shall keep the other advised as to their current residential address, email address, contact telephone number and the availability of skype communication.
Each party shall authorise the child’s school and any medical practitioners upon whom the child attends to provide all requested information in respect of the child to the other party.
That each parent shall promptly advise the other of any serious medical conditions being experienced by the child.
Each parent is hereby restrained from denigrating the other in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any third party who is denigrating the other parent.
The parents shall do all acts and things necessary to ensure that the child attends W Public School until completion of her primary school education.
Prior to the completion of the 1st school term of the child’s final year in primary school, the parents are to agree about the high school or secondary school she is to attend the following year. The parties are to individually discuss the selection of a school with the child and take into account in a meaningful way her wishes when selecting a school for her. If the parties agree that the child is to attend a particular private school then they are to agree upon how that schooling will be funded by each parent. Any agreement about the funding of school fees and school expenses such as uniforms, school excursions and extracurricular activities conducted by the school, are to be recorded in writing and signed by each parent.
Each parent is hereby restrained from arranging any extracurricular activity for the child which will require her attendance at such activity while living with the other parent without the written consent of such parent. Where the parents agree on particular activities for the child to engage in then each parent is to support the child in that activity by ensuring she is presented for the activity on time and properly equipped to participate. Each parent is entitled to attend any extra curricular activity (being an agreed activity) in which the child is participating irrespective of whether at that particular time the child is in the care of that parent or not.
The parties shall do all acts and things necessary to facilitate supervision of these orders by Ms C, Family Consultant, and for the preparation of a report by her in respect to the same on or before the expiration of a period of two (2) years from the date herein.
The parents shall do all acts and things necessary to facilitate the child attending upon such counsellor as recommended by Ms C for the purpose of counselling following the making of these orders for such periods as recommended by that counsellor. The parents shall bear the costs of such counselling on an equal basis.
In the event of a dispute arising between the parents in relation to the child and in the event of the parents being unable to resolve that dispute then, except in the case of an emergency, before either parent commences further proceedings under the Family Law Act1975 (Cth) they are to endeavour to resolve the dispute with the assistance of Ms C, should she be available, or a mediator or counsellor recommended by the Manager of Child Dispute Services (Parramatta Registry).
In the event of the parents having any further dispute relating to the care of the child or any aspect of her care and in the event of the dispute requiring determination, then prior to either parent filing any application in a court of competent jurisdiction, that parent is to seek the assistance of a counsellor or mediator at a Family Relationship Centre to assist in the resolution of the dispute.
IT IS NOTED that publication of this judgment under the pseudonym Morales and Morales is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5348 of 2007
| MR MORALES |
Applicant
And
| MS MORALES |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
R born in March 2000 is the 10 year old daughter of Mr Morales (“the father”) and Ms Morales (“the mother”). Both the mother and the father are deaf and gave their evidence during the trial with the assistance of AUSLAN interpreters. Each parent seeks that the child reside predominantly with them and spend time with the other parent.
The child has expressed a very definite wish to live with her father. The circumstance of that stated wish and the weight to be afforded by the Court to it was explored at some length during the hearing.
The affidavit material in this case which has been relied upon by the parties, in particular the affidavit of the mother, moves me to make a comment about affidavit evidence in proceedings to which Division 12A of Part VII of the Family Law Act 1975 (“the Act”) applies.
The mother was represented by an in-house solicitor from Legal Aid NSW. The affidavit was very poorly drafted. It consisted in large proportions of submission, conclusion, argument and hearsay. Large portions of the affidavit evidence could be given little or no weight. The affidavit was sworn by the mother without the assistance of an interpreter. This was a matter of such note that it was set out in paragraph 3 of her affidavit. The mother did not adduce any evidence orally to explain any section of her affidavit. I was not specifically told that in the trial. During the whole of the time the mother gave her oral evidence she used the services of an AUSLAN interpreter. When cross-examined about statements attributed to her as recorded in the notes of a counsellor, she had attended upon, the mother denied on a number of occasions that she had made statements attributed to her and said that she did not have the benefit of an AUSLAN interpreter when meeting with the counsellor. The mother attributed the inaccuracies in the notes to misunderstandings on the part of the counsellor.
Some examples of the lack of quality of the mother’s affidavit can be seen in paragraphs 8, 9, 10, 11, 16, 17, 34, 36, 37, 38, 40, 41 (facts are not proved by the exchange of solicitor’s letters), 42, 43, 50, 51 and 53. There are many other examples. In the father’s affidavit there are a few similar examples. Paragraphs 20(a), 22(d) and some others. The husband’s affidavit is largely well drawn.
These are proceedings conducted pursuant to section 69ZT of the Family Law Act 1975 (Cth) (“the Act”). Section 69ZT(1) provides that certain provisions of the Evidence Act1995 (Cth) (“the Evidence Act”) do not apply to child-related proceedings. Section 69ZT(3) gives the court the opportunity to apply all or some of the excluded provisions of the Evidence Act in the circumstances specified in that subsection. That subsection was not invoked in this case.
Section 69ZT(2) provides as follows:
“The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).”
The practical effect of the application of section 69ZT(1) and (2) is that all affidavit evidence is admitted as evidence in the case and then the court has to give weight to that evidence to determine what use/assistance the evidence may be to the trial Judge. There are occasions when objection to material in affidavits is appropriate. See Amador and Amador [2009] FamCAFC 196 (3 November 2009) (paragraph 38 to 49 inclusive).
Section 69ZT(2) by its wording gives notice that “no weight” may be given to evidence. As a consequence, legal practitioners must be on notice that potentially that which is contained in their client’s affidavit or contained in the affidavit of a witness may not be capable of being acted upon because it is inappropriate to give any weight to that evidence.
The circumstances in which a court may not give any weight, or any meaningful weight, to material in an affidavit would include where that material cannot be seen as reliable. Material in an affidavit stands an increased chance of being found to be unreliable where it is hearsay, submission or conclusion.
The importance of the evidence to a determination of an issue in the case will also be taken into account when assessing what weight to give to the material. The more important the evidence the greater the scrutiny will be to determine its reliability.
The reality for practitioners in the Family Court of Australia is that since the advent of Division 12A of Part VII of the Family Law Act it has been more important than it ever was to look to the form in which the affidavit is drawn, when drafting an affidavit in child-related proceedings. This is to ensure that the affidavit only addresses relevant matters and to identify issues of fact and have affidavits address issues of fact by the provision of evidence which will be capable of being given real weight.
In the application of Division 12A of Part VII of the Act objections to the form of affidavits are not generally entertained. The drafter of the affidavit therefore does not have the advantage of knowing which parts of the affidavits would have been ruled as inadmissible had objections been taken and dealt with by the trial Judge as would normally be seen in an adversarial hearing, such as that usually utilised in property proceedings in the Court. In such a case where an objection is upheld to a part of an affidavit which is otherwise seen to be addressing a relevant issue, leave will probably be given to the party to adduce oral evidence of that issue. That advantage of being able to call oral evidence to remedy a deficiency in the drafting of the affidavit is not extended in proceedings subject to Division 12A, unless there is a specific application.
The issues
On 19 August 2009 Justice Ryan conducted a hearing in the matter which made direction for the preparation of the case for trial. The matter was intended to be finally determined by Justice Ryan, however her Honour became unavailable and so the matter was heard by me.
On 19 August 2009 the Court noted the “List of Issues” for the hearing were as follows:
1. The list of issues are as follows:
1.1.Who the child [R] born […] March 2000 should live with.
1.2.The time the child is to spend with the parent with whom she is not living
1.3.Where the child is to attend school.
1.4.Care arrangements for the child in each household including before school care arrangements.
1.5.The views of the child.
1.6.The risk of the child being subject to or exposed to family violence.
1.7.Denigration by the parties or members of the household of the other party to the child.
1.8.The capacity of each party to care for the child.
1.9.The current emotional health of the child.
1.10.The attitude of each party to the responsibilities of parenthood.
1.11.The involvement of family member/household members in issues relating to the child.
1.12.The effect on the child of changing her circumstances.
Background facts
The father was born in 1974 and is currently 35 years of age. He resides at G. He lives with his parents, the paternal grandparents. His sister also resides in the house. The paternal grandparents are not in paid employment. The father’s sister is a student. Spanish is the first language of the father’s parents.
The father is a disability pensioner. He has previously been employed as a mechanic and he is currently undertaking work experience and he is hopeful of obtaining employment in the near future. The father has a girlfriend, Ms V. They have been in a relationship for sometime. Ms V is 25 years of age and lives with her parents. She is employed and has for sometime stayed with the father on the occasions when the child is in his care.
The mother was born in 1975 and is 34 years of age. She resides at H. She resides with her brother. The mother works as at P Company and she works approximately 37 hours per week, usually from 6.30 a.m to until 2.00 p.m.
In about January 2009 the mother separated from her partner, Ms D. The mother had known Ms D since 2004 and commenced a relationship with her in April 2006 and commenced living with her in September 2006. During the relationship with Ms D her son, J, resided with her. He was born in June 1997. The mother and Ms D together with R and J occupied rented premises at W. Prior to the commencement of the occupation of the W property in September 2006 the mother had resided with her brother at H. When the mother moved to W she changed the school which R attended from H Public School at H to W Public School. There is controversy between the parties as to whether the mother gave any notice of her intention to change schools to the father.
It is common ground that the child has progressed satisfactorily with her schooling at W Public School. The mother has made complaints that the child has missed school on days when she has been in the care of her father. That allegation was never proved in the hearing before me. It was established by the receipt into evidence of a school report in respect of the child that she had been absent from school on occasions.
The child currently undertakes a number of extra curricular activities. They include Dancing and Ballet on Monday nights, dancing classes on Wednesday afternoons and swimming on Thursday nights.
In about February 2010 the child commenced attending a 6 week course conducted by Centacare on Tuesdays. She has had one session of private counselling following that course. However, the mother has not been contacted to arrange further counselling.
In about 1998 or 1999 the parties commenced their relationship and also commenced cohabitation in the father’s parents’ home. The parties were married in January 2001 and separated in March 2002.
In 2002 the mother commenced apprehended violence order (“AVO”) proceedings against the father which were later withdrawn. In 2003 there was further AVO proceedings were the mother alleged the father had been stalking her and threatening her.
In October 2006 the parties were divorced.
On 2 December 2005 final parenting orders were made by consent. Those orders provided that the child live with her mother and spend time with her father. The orders provided for the father’s time with the child to be from after school Friday until before school on Tuesday in each alternate week and from after school Monday until the commencement of school on Tuesday in the following week. The child was to spend half of her school holidays and special occasions with he father. There were specific orders requiring the mother to obtain medical treatment for herself and to authorise her treating practitioners to release to the father, each three months, information of ongoing attendance as recommended by the practitioner. The orders provided that the child was to continue to attend H Primary School unless otherwise agreed. There were other orders made.
Since January 2007 the mother has been paying child support to the father.
At some time prior to the mother’s separation from Ms D there was an incident in the mother’s home involving R, J, a cousin of J named S and the mother. There were a number of allegations put to the mother about this incident.
The mother’s version of fact in relation to the above incident, given in oral evidence was as follows. J had a cousin called S had behavioural problems. On one occasion the boys had been playing on a play station device. A dispute occurred. J approached the mother and said “[S] has a knife”. R was there. The mother told R to go to her room. The mother asked S to drop the knife. She said to him, “I don’t want you to hurt anyone.” He wasn’t threatening anyone. The mother said to S “What were you thinking?” R came out again and the mother told her to return to her room. S dropped the knife and the mother told S she would contact his mother. The mother then contacted S’s mother and told her she could not care for S any longer. The mother said there had been another incident where S had a screwdriver.
There is controversy about an incident which is said to have taken place at R’s school whilst the mother shared a residence with Ms D and at a time when J also attended R’s school. The mother said that J complained to her that the father or his sister had said to him “You had better watch out”. The mother says that following that event Ms D took J for counselling. In her oral evidence the mother suggested that it was that incident which led to J having to undergo counselling. The mother later admitted that J had been receiving counselling for at least six moths before the occurrence of that incident at the school.
During the cross-examination of the mother by the father’s counsel the mother was taken to some counselling notes which had been produced to the Court. The mother was asked about a number of admissions she is alleged to have made to her counsellor. The mother denied most of the alleged concessions. In so doing she said that when she saw her counsellor she did not have an interpreter with her and consequently she concluded that the counsellor had misunderstood what the mother had said.
For my part I did understand most of the mother’s oral evidence. There were occasions when I experienced difficulty. In the circumstances I consider that I need to give the mother the benefit of the doubt in relation to the matters which she said must have been misinterpretations or misunderstandings recorded by the counsellor in her notes. Exhibit “F3” contain the notes of the counsellor.
Orders sought by the parties
The mother filed in Court a document which was marked Exhibit “M1” which set out the orders sought by her in the hearing. The father tendered a Minute or Order sought by him, which was marked as Exhibit “F1”. The Independent Children's Lawyer tendered a Minute or Orders Proposed by the Independent Children's Lawyer which was marked as Exhibit “ICL1”. The orders sought by the father called for an arrangement where R would principally reside with him and spend time with her mother during school term each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday. In the alternate week, the child would spend time with her mother from after school Monday until the commencement of school on Tuesday. The father also proposed that the child spend one half of the school holiday period with her mother. There were other provisions contained in the orders sought.
Each parent sought an order for equal shared parental responsibility.
Ultimately, in submissions the father supported the orders proposed by the Independent Children's Lawyer, together with some additional orders.
The mother sought orders that the child live with her and spend time with the father during school term from after school Friday until the commencement of school on Tuesday in each alternate weekend and in the alternate week from after school Monday until the commencement of school on Tuesday. She also sought that the child spend half her school holidays with her father. There were other orders sought. The provision of time for the child to spend with her father as sought by the mother is a restatement of the current orders.
Credit
At the conclusion of the case matters of the parties’ credit and who could or should be believed in relation to disputes of fact really became quite unimportant. It was the aspects of uncontroversial evidence which really highlighted the matters which most prominently impacted upon the considerations of the child’s best interests.
To the extent that I accept one version of fact over another I will specify same in the body of these Reasons.
As a general statement I say that I was impressed with all of the witnesses who gave oral evidence in this case. I did not think that any witness was being knowingly untruthful with me. The dimension of deafness in this case has made it difficult to form a concluded view about some areas of fact which are in conflict between the parties. I could not be confident that either party has the capacity to be one hundred per cent accurate in their evidence about what was said on a particular occasion because of the very high probability that they have misinterpreted some aspect of conversations.
In different parts of each parties’ affidavit and oral evidence they each alleged failure of communication with the other. There are allegations of text messages being sent from one party to the other where it is denied any such text message was received (instant the mother’s alleged request to the father to be able to change the child’s school from H Public School to W Public School). I have considered each parties’ evidence in relation to such allegations and I find it impossible to prefer one version over the other.
The mother made specific submissions in relation to credit. She sought through her counsel that I find the evidence of the father unreliable in relation to an email sent to the child’s school on about 3 March 2008. The father was questioned about the email and he said part of the email had been typed by his sister. The particular part which the father was taken to evidenced the following words: “the child representative said I will have full custody of [the child]”. When the father’s sister gave her oral evidence she denied she had authored any part of the email. Again, I am unable to say I accept one version of fact over the other. There was no particular aspect of the evidence of either the father or his sister which enabled me to say on balance that one witness’s evidence was likely to be more reliable. In the circumstances of this case the content of the email to which the cross-examination was addressed was not of great importance.
In relation to the reliability of the father’s evidence the mother’s counsel submitted that the father was subject to bouts of hyperbole. Counsel pointed to a portion of the Children and Parents Issues Assessment (page 3 of the August 2009 report) where the Family Consultant said “[h]e ranted that [the child] had missed half of her dancing this year.” When that allegation was explored it transpired that the child had not missed a significant amount of time from dancing classes at all. It further transpired that that the particular occasion which concerned the father occurred during the time the child spent with her mother in school holidays. I accept that the father’s statement to the Family Consultant, as set out above, was an exaggeration. I think it unfortunate that the Family Consultant felt constrained to describe the manner in which the father delivered the statement as a “rant”. I have had the opportunity to observe the father giving evidence over a greater period of time than the Family Consultant had spent in conversation with the father. The delivery of his speech was quite obviously different to the way in which a person with hearing speaks. The delivery of his speech appeared to require a greater degree of effort for him than it did for the mother who suffers the same disability. I would be concerned about the application of a label, such as “rant” to any aspect of the father’s delivery. I would not in the circumstances of this case be prepared to accept the Family Consultant’s description of “rant” as a reliable description of the father’s delivery in relation to that topic.
There are examples in the oral evidence of the father where he was taken to specific portions of the Family Consultant’s evidence and asked if he had said particular words to the Family Consultant. The father had replied with words to the effect that he had not said those words and that the Family Consultant must have misunderstood. The same is true of the mother’s evidence. As will be seen later in these reasons the mother was cross-examined about words reported as having been said by her to a counsellor whom the mother acknowledged she attended upon. There were a number of occasions where the mother denied saying particular words and said the counsellor must have misunderstood. I accept the mother’s evidence in that regard.
Given the disability of each parent and given that I have had the opportunity to observe each party in the witness box and hear the way they deliver their speech I consider there is a high risk of each being misunderstood in ordinary conversation with persons who do not have the same affliction.
Even accepting that the father had exaggerated the fact of the time the child had missed from dancing lessons as referred to above, I did not at any time consider he exaggerated any of his evidence which was before me. Further, I can find no note of mine which records the mother’s counsel putting to the father that he has exaggerated other aspects of his evidence.
Relevant law
Legal principles
The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Determination of the Identified Issues
None of the issues identified above was addressed by the parties directly at the conclusion of the trial. The Independent Children's Lawyer in a written case outline has, I think, attempted to address the identified issues by addressing a correspondingly close heading under section 60CC. I have had regard to those written submissions.
Who the child, R, should live with
As will be seen later in these reasons I have decided that the child should mainly live with her father. The principal reasons for this are as follows:
·The weighing of all of the section 60CC considerations convinces me that would be in the child’s best interests.
·The result accords with the child’s clear stated wishes.
·The wishes, as stated by the child to the Family Consultant, appeared to the Family Consultant to be based on appropriate consideration which the child had given the matter, and I will refer later in these Reasons to this issue as it relates to the weight to be given to the child’s wishes.
·In the mother’s home the child will continue to be required to be woken early in the morning (during school term) to be delivered by the mother to a babysitter, either being a neighbour if the child attends H Public School, or a close friend in the vicinity of her current school W Public School.
·There are good reasons why the child should not be required to change schools again before she attends High School. If the child lived with her mother the most practical solution for her schooling (and the mother’s proposal) would be for her to change schools to H Public School. The child does not wish to change schools.
·It seems probable that the parents’ parenting style is different in each household. The father’s household appears more permissive and less rigid in application of rules and expectations on the child to participate in normal domestic duties. That difference probably has had a marked affect on the child’s interaction with each parent and their supporters. Neither household appears to be parenting the child in an unacceptable way when the rules in each house for the child are considered. Evidence was given in the mother’s case about “The List” which is now employed in the mother’s house. This is a document which has 10 items and those items describe tasks which the child is required to perform. The mother’s reasons for creating the list were not really canvassed in the hearing, however it is reasonable to conclude that the list was created to try and avoid ongoing conflict between the child and her mother. The mother had given oral evidence about difficulty she was experiencing with the child in reaction to requests by the mother for the child to participate in certain domestic activities and also limits relating to television watching, bed times and the like. In my view, the ambition of the mother in creating the list was understandable and possibly innovative, however, it would probably have highlighted further and dramatically the differences between the households which the child experiences.
·Given that the child’s stated wish to spend more time with her father and to live with him has emerged rapidly (to which the evidence of the Family Consultant refers). It is of concern to me that the child will continue to want to live with her father and, in order to achieve her wish, will make life for her mother very difficult through displays of disobedient and otherwise bad behaviour. If such a course was to occur (an occurrence I consider in this case probable) then I have real concerns that the child’s otherwise fundamentally good relationship with her mother may be irrevocably damaged.
·I am concerned with the mother’s parenting capacity insofar as she has failed to talk to the child about the child’s stated wish to spend more time with her father and more recently to live with him. The mother although knowing the child’s wish as reported by the Family Consultant and also as stated in open court by the Independent Children's Lawyer, has not sat quietly with the child to discuss that matter. The mother told me that the child has only told her she wanted to live with her father at times when the child was angry. The mother appears to not accept therefore that the child has a genuine wish, desire or need to spend more time with the father and his family.
·Although being aware of her daughter’s desire to spend more time with her father there is no evidence that the mother has done anything to discuss that with the child or to implement any meaningful additional time for the child with her father. The mother did tell me that she had made concessions to the child in allowing departures from the Court orders from time to time. Those matters were not entirely uncontroversial between the parties, however even if I accepted the mother’s evidence about the concessions the mother made, there was no evidence that she explained why she was making the concessions to the child or that she made any enquiry as to whether the concessions pleased the child or not. Clearly the child was seeking substantial changes to the current regime of her care and that was not considered or implemented by the mother.
The time the child is to spend with the parent with whom she is not living
The Independent Children's Lawyer and the father were at idem with the order sought in relation to the time the child should spend with her mother, should she be principally living with her father. The order recommended by the Independent Children's Lawyer was based in part upon the evidence of the Family Consultant that a block of time each fortnight would be a preferable model for the child. Thus the proposed time during school term would be from after school on Thursday to school time on Tuesday morning once per fortnight. Such a regime has distinct advantages for the child. She would not be exposed to overt parental conflict on changeover during school term as all changeovers would take place at the school. It will give the mother a connection with the child’s school which she has had until this time. The proposals for the child to spend time with her mother during school holidays and other special occasions are not the subject of dispute between the parties.
Where should the child attend school
The child currently attends school at W Public School. She has attended that school from a time following her mother moving into a residence at W with her then partner, Ms D. That time was about the commencement of term 4 in 2006. Prior to that time the child had attended H Public School.
In June 2008 the mother moved the child’s residence from W to her current residence at H. The mother has said in her evidence that she chose not to change the child’s school at that time.
Since June 2008 the child has been required to get out of bed at 5.15 a.m. and be dressed for school. She is then driven by the mother to arrive at the residence of friends, Mrs and Mr B at 6.00 a.m. The child then is able to sleep for an hour before being awoken and provided with breakfast which has been provided by the mother. The mother acknowledges that the child does not like that routine. She accordingly proposes to have the child change schools to H Public School which would enable a neighbour, or the mother’s brother, to deliver the child to school.
The oral evidence given by the mother’s brother did not leave me with the impression that the mother’s brother would see himself being frequently involved in delivering the child to school. He told me that he works in the Sydney City and leaves home at 6.00 a.m. He said that the neighbour had looked after the child before school on occasions.
It is common ground that the child is progressing well at her current school. In the report of the Family Consultant dated 13 August 2009 it is recorded that the child said she liked her school at W. She is reported as saying “I feel really happy at school”. She did not want to return to H Public School.
As a matter of practical necessity it appears the mother would favour being able to change the child’s school to H Public School if the child is to predominantly be living with the mother into the future.
Each party has acknowledged in oral evidence that there is a prospect of change of residence in the future. The mother acknowledged that if she decided to enter into another live-with relationship she would probably do that in a residence away from her current abode. The father has a plan to marry and move from his parents’ home after he and his wife have had some opportunity to save for a house of their own.
A change of residence by the parent with whom the child principally lives carries with it the possibility of a further change of school for the child.
In the short term there are advantages for the child of staying at her present school. Even if the child were to change schools to H Public School her mother would still need to have her leave her bed early in the morning and be taken to a neighbour’s house. No particular advantage flows to the child in that regard. Further removing the child from her current school at this time is likely to engender more, rather than less, hostility by the child to her mother.
If the child is to live with her father for most of her school term time then clearly she should remain at her current school.
There is an issue between the parties about which high school the child should attend. I will address that issue when I come to consider the orders which should be made having determined where the child should primarily reside during school term.
Care arrangements for the child in each house including before and after school arrangements.
The father proposes to reside with his parents for some time. His sister also resides in the home.
Each of the father’s parents is retired. They both hold drivers licenses. They are both available to assist in the care of the child including before and after school should the father find and maintain employment which sees him unable to be involved in that aspect of her care.
The father’s sister provided written and oral evidence at the hearing. She is 26 years of age. She is employed as a scribe and as a teacher. It is clear from her evidence as a whole that she supports the child residing with her brother and that she will make herself available to assist whenever requested. It is also evident that such assistance would need to be outside of her hours of employment.
The father’s evidence is that he proposes to marry his girlfriend, Ms V, at some time in the future. Ms V did not give evidence in the case. The father says that he and Ms V will reside with his parents following their marriage in order to save money to buy a house. The evidence about that plan suggests it might take some years to achieve.
It is clear that the father will receive assistance from all of his family members and his girlfriend in the care of the child. It is also clear that he proposes to be as involved as he can be with the actual care of the child.
The father gave evidence that he works in a voluntary capacity at the moment as a mechanic. He hopes to commence full time work as a mechanic in about a month of so. He will work from 8.00 a.m. to 4.30 or 5.00 p.m. I have assumed that will be Monday to Friday. The commute to work takes the father 10 to 15 minutes. The father’s sister works full time and leaves home at about 8.00 or 8.30 a.m. She is home by 3.00 or 4.00 p.m. The father proposes that his parents care for the child before and after school and ensure she is delivered to and collected from school.
The mother shares her residence with her brother. The mother’s brother gave written and oral evidence in the hearing. He described the house in which the mother, the child and he reside. The house is owned by his parents and both he and the mother pay rent to their parents. The mother’s brother occupies the upstairs area of the house while the mother and the child reside downstairs. There are common areas of the house which are shared. The mothers parents, who predominantly live in country NSW, visit the mother from time to time and stay with them.
The mother proposed that she will be the principal carer for the child in her household. The evidence of the mother’s brother is that he does interact with the child in the household and I am sure he does have some role in her care. However, I was left with the understanding that the care and supervision of the child is primarily the mother’s responsibility.
The mother has been taking the child to a friend’s house early each school morning to be cared for and taken to school. The mother finishes work each day in time to collect the child from school. If the child is able to live with her mother and to change school the mother proposes that a neighbour will care for the child in the morning before school.
The views of the child
The evidence of the child’s views is contained in the evidence of each party, their witnesses and the evidence of the Family Consultant. The evidence of the Family Consultant is the most reliable source of evidence on this topic.
In the first of the reports provided by the Family Consultant, a Children and Parents Issues Assessment dated 3 May 2008 (Exhibit “X2”), the Family Consultant reported that the child “…enjoyed spending time with her father and his family and would like to spend one week living with her father and one week living with her mother.”
In the Children and Parents Issues Assessment dated 13 August 2009 the Family Consultant reported that the child had complained about some of the rules and discipline in her mother’s house. The Family Consultant reported that the child “…had told her father that she was not happy at her mother’s home because she gets into trouble with her mother every day”.
The child told the Family Consultant she wanted to “live with Dad more”. She reported positive statements about her father’s family and girlfriend. She asserted that if she was chastised by her father it did not involve “screaming at her”.
In the Family Report dated 21 October 2009 (Exhibit “X1”) there is an extensive review of the child’s statements and views. The child told the Family Consultant “I want to live with my Dad always…May be [sic] sometimes I can visit my Mum.” The child told the Family Consultant that her mother did not care about her. The child set out a string of complaints about living with her mother and she compared it unfavourably with living with her father. She felt compelled to initially lie to her father about who was picking her up from school at a time when her mother was unable to drive for a period of about a month. The reason for this lie was not explored.
The Family Consultant reported that the child was consistent in her desire to live with her father even when brought to an interview by her mother. The child told the Family Consultant, in writing, “I wished that my mother would act like she ceared [cared] about me”. By contrast the things written by the child about her father were very positive.
There was no suggestion from the child that either of her parents had endeavoured to influence what she was to tell the Family Consultant. The child told the Family Consultant that her mother had said to her “just don’t say that I don’t spend time with you”.
Under the heading “Discussion” the Family Consultant noted the change in the child’s views over the period of time she has known her. Initially in earlier interaction with the child the Family Consultant was told by her that she would like to spend more time with her father. The situation has now moved to one where the child wants to live with her father and not spend much time with her mother. She said clearly she would not want to simply reverse the current orders.
In assessing the child’s stated wishes the Family Consultant said there are realities which would have influenced the child’s views. She complained about routine in her mother’s house. She said she had to get out of bed at 5.00 a.m to be readied for school when living with her mother. She complained about requirements such as having to bath before the evening meal. She complained that she was required to do more for herself in her mother’s home and she spoke of fighting with her mother over food as the mother attempted to control the child’s weight.
The complaints about her mother’s house contrasted markedly with the life she said she enjoyed with her father. The Family Consultant said however, “[the father] and his family had negative views of her mother that [the child] would be aware of.” In relation to those last quoted words I noted the oral evidence of the father and his family. They spoke positively of the mother’s attributes and there was real sorrow on the part of the father’s mother who told me she regretted the loss of her relationship with the mother. It is also clear that neither the father or any member of his family was asked whether they had anything positive to say about the mother. The Family Consultant acknowledged herself in the oral evidence that the process of the report preparation lends itself to an expectation that any complaints about the other parents should be aired.
The Family Consultant expressed a view that one of the reasons the child may be expressing a wish not to spend much time with her mother was guilt engendered by her having stated her wish to live with her father both to the Family Consultant and also to the Independent Children's Lawyer. The evidence before the Court is that at an earlier time when the matter was before the Court the Independent Children's Lawyer informed the court the the child had stated a wish to live with her father.
The Family Consultant spoke of the relationship between the child and her mother having been damaged. She cautions that unless the conflict between the parents ceases the relationship between the child and her mother may become lost. She concludes the “[f]or [the child] to be emotionally stable and psychologically healthy …she needs to learn to love and respect both of her parents again.”
Under questioning the Family Consultant opined that the father’s family had not deliberately embarked upon a course of action to alienate the child from her mother.
As will be addressed later, it seems in part that the mother’s failure over a lengthy period of time to act upon the child’s wish to spend more time with her father has contributed to the circumstances now faced by the mother and the child.
In her oral evidence the Family Consultant said that she had asked the child whether she had told her mother she wanted to live with her father and she said “yes”. This contrasted with the evidence of the mother who said that the child had only said that at a time when they were in conflict. The mother had regarded the words as expression of anger rather than being heartfelt wishes.
The Family Consultant was asked for her assessment of the effect on the child of her not being able to live with her father having stated her wish to do so in this case. The Family Consultant said that the child has stated a strong view. The Family Consultant considered there are reasonable reasons why the child wishes to live with her father. The child receives a great deal more attention in her father’s house. The Family Consultant predicted that the child would be disappointed by not being able to live with her father and considered that the child might carry guilt about her mother if she were permitted to live with her father.
The Family Consultant said that the mother spoke of resistance by the child in her household to the household routine and rules. This may have been a reaction to her view being made known to the adults and then the child wanting the change to happen quickly. The Family Consultant asked the mother what strategy she would employ to deal with the child’s disappointment if the decision went against her wishes. The mother had no strategy and the Family Consultant suggested counselling.
The risk of the child being subjected to or exposed to family violence
See the section below in the consideration of the section 60CC matters.
Denigration by the parties or members of the household of the other party to the child
The Family Consultant reported in her Family Report that the father’s family had been very negative in their statements about the mother. The Family Consultant concluded that the child would be aware of the views of her father’s family. Part of the circumstances which the Family Consultant looked at were the circumstance in the father’s house where the child felt able to complain about her mother’s care of her and the rules in her mother’s household. This apparently engendered sympathy and support for the child. The child reported feeling well cared for and that she felt her father and his family had time to spend with her. By contrast she felt her mother had a level of disinterest in her.
The capacity of each party to care for the child
This heading will be addressed under consideration of section 60CC below.
The current emotional health of the child
The evidence on this issue is very limited. The evidence has chiefly come from the Family Consultant.
The Family Consultant is clearly worried about the relationship between the child and her mother and in particular how that relationship may be effected in the future by ongoing parental dispute. The Family Consultant has spoken of the emotional turmoil which the child may face as a result of expressing a wish to live with her father. In particular the Family Consultant considered the child would suffer a feeling of guilt in relation to her mother’s circumstances post an order providing for the child to live with her father.
In the cross-examination of the mother she agreed that she knew following the August 2005 Report from the Family Consultant that the child wanted to spend “week about” living between her parents.
The attitude of each party to the responsibilities of parenthood
This will be dealt with under the section 60CC considerations.
The involvement of family members/household members in issues relating to the child
The Family Consultant raised concerns about the negative attitude of the father’s family towards the mother. The Family Consultant said in oral evidence she would have a concern about the effect on the child of being exposed to that negative attitude.
As stated earlier, negative views of the mother were not significantly evident when the father and his family gave their oral evidence. When asked what positive things they had to say about the mother each expressed positive feelings towards the mother and expressed positive views of her.
It is also the case that if the father’s family have been negative about the mother in the hearing or knowledge of the child it is reasonable to anticipate that would dissipate were the child to be living with the father’s family.
It must also be acknowledged that part of any negative attitude towards the mother which might be evident in the father’s house may well have been contributed to by the child herself complaining with force about the treatment she alleges she has received in the mother’s house. The child has told her father and his family of an incident where J, the son of the mother’s former partner, and his cousin S had an altercation where a knife was brandished. The mother was questioned about the incident at length and effectively denied that there was any threatening with a knife. That type of report by R to her father would be likely to receive a reaction of alarm. The child also reported other interaction between herself and J which suggested she was being bullied or mistreated by J.
The effect on the child of changing circumstances
It is difficult to be exhaustive about the benefits and detriments of a change, especially in the absence of specific submissions from the parties.
The positive effects which might reasonably be expected are as follows:
·The child will have her stated wishes acknowledged and acted upon.
·The child will remain at her current school, a matter which again she has requested.
·She will not have to get out of bed at 5.00 a.m on most of her school mornings.
·She will be supported in her day-to-day care by her father and his family, all of whom she considers care for her.
·Her relationship with her mother may have a chance to be more constructive. The mother can now become “the good times parent” and therefore not have to be concerned about creating a working relationship for the household such as that which is evidenced by the task list referred to in the evidence of the mother and her brother.
·The proposed arrangements submitted by the Independent Children's Lawyer, if adopted would see less opportunity for the child to be exposed to parental conflict.
·By acceding to the child’s wish about her living arrangements there is a hope that the conflict which had been evident in the relationship with her mother may disappear.
The detriments of changing the child’s circumstances are:
·She will no longer spend more time living with her mother.
·She is approaching puberty and may well desire a closer relationship with her mother at those times.
·She may feel guilt about her mother’s circumstances.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
It will be my ambition to frame orders which will achieve the end of providing for the child to have a meaningful relationship with each of her parents. It is not submitted in this case that any of the orders proposed by the parties would lead to a situation where the child would not have a meaningful relationship with each of her parents.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There has been no evidence given which satisfies me that either parent has been violent to the child. To the extent that the father has been concerned about certain circumstances occurring in the mother’s house I have referred to those in these Reasons.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
This consideration has been canvassed in the consideration of the issues referred to above.
The wishes, as stated by the child to the Family Consultant, appeared to the Family Consultant to be based on appropriate consideration which the child had given the matter.
I need to consider the weight which should be given to the child’s wishes as outlined in these Reasons.
The child is 10 years of age. She appears to have at least the intellectual capacity expected for a child of her age. The Family Consultant makes no adverse comment about her presentation and communication capacities. The Family Consultant considers that the reasons given by the child for her stated wish have foundation in fact and are not based on fantasy.
As a 10 year old I understand she would not have the sophistication of a 14 year old and would still be vulnerable to manipulation by adults, including her parents. However there are real connections between the child’s stated wish and acknowledged facts in this case such as:
·In her mother’s house she is required to get out of bed at about 5.00 a.m. each morning to be readied for school.
·There are more demanding rules and requirements for participation in the mother’s house than the father’s.
·The child considers that she is cared for in the father’s house in a manner which she does not experience in the mother’s house.
·There has been open conflict between the child and her mother which the child does not experience in her father’s house.
·The child has witnessed conflict in her mother’s home during the time the mother lived with her former partner, Ms D.
·The father and his family have taken the child on exciting overseas holidays.
Given all that has been said in relation to the child’s views and wishes I consider the wishes must be given significant weight.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The Family Consultant reported that the failure of the mother to accommodate the child’s wish to change residence is already causing problems in the relationship between the two. The Family Consultant said that future rebellion by the child against her mother could not be ruled out. She said it is of concern that the child may “take things into her own hands” if her wishes are not accommodated. The Family Consultant told me “[the child] said she had run away from her mum”.
The Family Consultant was asked about the child’s dramatic change in view over a six week period. The Family Consultant said it was dramatic. She said the child expressed a wish to live with her father and “not see a lot of her Mum”. The Family Consultant said that the fact that the child’s stated wish to the Independent Children's Lawyer, which was conveyed to the parties in open court, may have freed the child up to be much stronger.
The Family Consultant said that the child spoke about her mother and Ms D having a fight “over her”. This suggested there was open conflict in the mother’s house about which the child was or became aware. The Family Consultant said the mother was aware that Ms D had questioned the child after the Family Consultant’s first report. The mother had told the Family Consultant this is one of the reasons she separated from Ms D. The child had also reported to the Family Consultant that she “got into trouble” because of the content in the first report which included that Ms D had been hitting J.
The Family Consultant opined that if the child remained living in her mother’s house the conflict between them might escalate.
In her oral evidence the mother told me she has experienced behavioural problems with the child. It has been “on and off”. The mother could not recall when it all started. The mother said the child “can be aggressive. She ignores me. She demands what she can’t have. She has tantrums”. In the week before the trial the mother had exchanged emails with her/the child’s counsellor from “the rollercoaster program”. She told the counsellor that the child had been aggressive to her and she was experiencing behavioural problems. The mother said she would put in place boundaries. She has put in place tasks for the child to carry out in the household. These include stacking the dishwasher, taking out the rubbish and that the child is home from playing by 5.30 p.m.
The mother believes the child is currently having counselling for behaviour problems.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There are criticisms which can be levelled at each parent in this case in relation to promoting the child’s relationship with the other parent.
It is acknowledged that the child has witnessed open conflict between the parties. This would clearly give her the message that the parties may not like each other.
The mother has known of the child’s wish to spend more time with her father for a considerable period of time. The evidence satisfies me that the mother has avoided confronting that matter with the child and has not implemented any meaningful change in the arrangements for the care of the child which would accommodate the child’s stated wish.
The Family Consultant reports that the father’s family were very negative about the mother and her parenting of the child. That was something not seen by me in the hearing conducted before me however, I accept the evidence of the Family Consultant that they were negative when seen by her for the preparation of the Family Report.
I conclude, having considered all of the evidence in this case that each parent does recognise in the other good parenting qualities. I consider that they each accept that the child benefits from having a relationship with the other parents and each supports a continuing relationship for the child with her parents.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This subject has been dealt with by me earlier in these reasons.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents live reasonably close to each other and they have not raised in this case the aspect of “practicality” other than in relation to the arrangements for the care of the child prior to school when she is in her mother’s care.
The issue of the care of the child on the mornings she is in her mother’s care and needs to go to school is a very difficult one to determine. Clearly there are benefits accruing to the child of spending overnight periods of time with her mother. However, should this happen on week days during school term it means as a matter of necessity that the child will be woken at 5.00. a.m by her mother and taken to her godparents’ home to be cared for by them prior to the commencement of the school day. The child dislikes being woken at 5.00 a.m and that is understandable. The mother has suggested that the father attend at the mother’s home prior to 6.00 a.m and then care for the child until it is school time. In the circumstance of this case that is not an option as it would likely lead to further conflict between the parties.
The next option would be for the mother to deliver the child to the father’s home early in the morning, rather than delivering her to her godparents’ home. That would be a good solution at first glance. However, the mother says that would involve an additional half hour drive for her and accordingly she would have to get the child out of bed even earlier than she now does.
The final alternative would be for the father to meet the mother at an agreed meeting spot to collect the child. That would expose the child to possible further conflict between her parents.
The impact of the child having to be part of the arrangement which sees her having to be woken at 5.00 a.m. in the morning is likely to make her more resentful of having to spend time with her mother and thus be counter productive to the ambition of facilitating a meaningful relationship between the child and her mother.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Part of the needs of a child includes the ability of the parents to be able to communicate effectively. In this case the Family Consultant said she has observed that the parties’ ability to communicate has reduced rather than improved over the time she has had contact with them.
The Family Consultant said that the mother spoke of resistance by the child in her household to the household routine and rules. This may have been a reaction to her view being made known to the adults and then the child wanting the change to happen quickly. The Family Consultant asked the mother what strategy she would employ to deal with the child’s disappointment if the decision went against her wishes. The mother had no strategy and the Family Consultant suggested counselling.
Part of the parents differing parenting styles relates to the discipline imposed in each household. In the mother’s household there appear to be more rigid requirements placed upon the child than are in the father’s household. This aspect of the case was highlighted through the oral evidence of the mother and her brother in particular. There was evidence that in the mother’s house there now exists a list of ten items which direct the child to undertake what is expected of her in the mother’s house. These are directed to tasks and the timing thereof. No such regimen exists in the father’s house.
When asked about “the list” the Family Consultant thought that the list may have some good attributes. She said it could be helpful to ensure that the child knows what is expected of her. She also said that firm guidelines for a child also has advantage in that the child has certainty about limits and boundaries.
It was put to the Family Consultant that in the father’s house the child would be “spoilt”. She agreed that could be the case however she pointed out that it is more likely you would spoil a child who you don’t see frequently. No doubt sympathy for the child in having to endure certain aspects of the mother’s environment would also add to a desire to spoil the child in the father’s house.
One of the matters to be considered under this heading relates to the environment the mother permitted the child to live in during the time the mother resided with her then partner, Ms D. The mother agreed in her oral evidence that she had experienced difficulty with Ms D’s son, J. She said he had refused to take her instructions and was aggressive to her. The mother had told her counsellor in April 2007 that Ms D was angry towards her. She said Ms D raised her voice to her. The mother said this arose in the context of Ms D being frustrated with the mother being deaf. The mother conceded she and Ms D fought over their children.
The mother said that J was aggressive to both his mother and herself. She agreed that he was probably aggressive to R. She said they did have disagreements at times. In 2007 whilst the mother resided with Ms D, J was aged nine and a half and R was aged seven years.
The mother was questioned as to when she became aware that the child had expressed a wish to spend more time with her father. She said it was after the second report in August 2009. Asked what she did about those wishes the mother said “when [R] asked if she could call her dad or if she asked if her dad could collect her from dancing I always allowed it.” In further evidence the mother estimated that since the commencement of the orders in December 2005 the child has spent additional time with her father outside of the terms of the court orders on about 15 to 20 occasions.
When questioned as to the reason for the child’s expressed wish the mother said she believed the child did not like the discipline in her household.
The mother was asked about the requirement to have the child get out of bed at 5.00 a.m. on school days. She was asked why she would not deliver the child to her father’s house so he could care for her in the morning and take her to school. The mother said it would take her an additional time to get to the father’s house in the morning and therefore the child would have to be woken even earlier. The mother said she had offered for the father to come to her house in the morning to care for the child and take her to school.
Although the proposal for the father to go to the mother’s house was an admirable one so far as the child’s welfare is concerned it was in the circumstances not something that the mother should have anticipated could have been taken up by him. This is a matter where the father says AVO proceedings have been commenced against him at the instigation of the mother. The father will not attend at any meeting with the mother alone for fear of further allegations being made against him. Any objective analysis of the parties’ relationship would establish that there is very limited trust between them.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
R is a 10 year old female child. She would be expected to shortly start puberty. This matter was raised with the Family Consultant and it was suggested to her that the child would benefit during that time from spending more time with her mother. The Family Consultant did not accept that was the case in the circumstances of this case. The child will have access to her mother on a frequent and regular basis even if she were to predominantly live with her father. Additionally, the child is seen to have a close relationship with the father’s mother and his sister. They would be available to assist her at that time.
The father’s parents were born in Chile. The mother’s parents are of Australian origin.
The mother has lived in a lesbian relationship. Her brother, with whom she lives is openly homosexual. From time to time he has a homosexual friend stay with him in the house occupied by the mother and the child.
During the trial nothing was made of the contrast between a homosexual household and a heterosexual household as an environment in which the child may be raised. I do not take that matter further.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This consideration does not apply to this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Many of the matters addressed by me in other parts of these reasons are relevant to this consideration and I do not repeat those matters.
I accept that each of the parties love the child very much. I accept each parent wants the very best for their daughter. Each parent has had to struggle in participating in life with severe handicap. Thus each must appreciate that the child needs to be protected from any disadvantage which might flow to her as a result of living with a parent with a disability.
During the hearing the mother suggested that the child had missed significant school time whilst in her father’s care. The school report annexed to the father’s affidavit show that the child was absent 6 whole days and 1 part day in Terms 1 and 2 of 2009. It shows that the child was absent 5 whole days and 2 part days in Terms 3 and 4 of 2009. No evidence was produced to show which days of the week the absences occurred. Nothing is suggested by the report that the absences were not explained. I could not, in the absence of further evidence, conclude that the absences mainly occurred when the child was in her father’s care. I would need further evidence in order to conclude that the absences were without proper cause.
Subject to the criticism which I have already addressed in relation to each parent I am satisfied that they have appropriate attitudes to the child and to their roles as parents.
(j)any family violence involving the child or a member of the child’s family
The subject of violence in the mother’s home whilst the child was present was the subject of considerable evidence, both written and oral. The father set out evidence of what he had been told by the child about violence in the mother’s home. The most serious of the concerns raised by the father related to the possibility of the mother or another person being threatened with a knife.
The mother in her oral evidence was taken to the allegations. She admitted that the child may have been exposed to arguments between Ms D and herself, however she denied the child had been exposed to any violence. The father raised a concern that the child was subjected to violence by Ms D’s son, J. That was denied by the mother.
The incident which is alleged to have involved violence with a knife has been addressed by me in these Reasons. I accept the mother’s evidence in relation to that incident. I do accept however that even on the mother’s version of the facts the child was exposed to an unpleasant scene. The mother tried to protect the child by sending her to her room, however, the child disobeyed her mother and returned to the scene which the mother appeared to be handling well.
I accept the incident would have been frightening for the child. However, I consider the mother took appropriate action at the time and thereafter refused to care for S. That was appropriate.
The mother in her affidavit evidence made general allegations of violence by the father to her during their cohabitation. The allegations were in such poor form that no weight could be given to them and the allegations were not put to the father during cross-examination of him. The mother said in her affidavit that in 2002 she took out an AVO against the father and then withdrew it. In 2003 she said she took out an AVO. She said “I have not since applied for an AVO or contacted police”. In the chronology provided by the wife’s lawyer there is no mention of the 2003 AVO. In paragraph 14 of the mother’s “Parenting Questionnaire” there is a question asked about Family Violence Orders. It asks whether there are any such current orders “or have there been any in the past which affect you…”. The mother has answered “no”. In the father’s corresponding parenting questionnaire he also answered “no” to the same question.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
The evidence suggests that there was an interim violence order made in this case however it was not made a final order. No submission was made by the mother or father to address this consideration.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It seems to me that final orders rather than interim orders should be made in this case. The child has had to be involved in proceedings in this court over a lengthy period of time. She faced the very difficult circumstances of having to continue to predominantly live with her mother in circumstances where she had stated a very firm wish not to live with her but rather to live with her father.
Having considered all the evidence in this case I am convinced that unless orders are made which largely reflect the child’s wish to live with her father it is likely that the conflict between the child and her mother will be escalated and the representations by the child to her father about the circumstances of the child living with her mother exaggerated to an extent which will require him to again seek orders from the Court.
(m)any other fact or circumstance that the court thinks is relevant
The Family Consultant did not in her Family Report make a recommendation as to the arrangements which might best work for the child. In her oral evidence she told me that the practical aspects of the care of the child tend to support a conclusion that the child should live with her father. She said further “I feel that the advantage of the child living with either parent seems to be falling on the father’s side but against that not taking into account the negativity.” She was referring to the negative emotional environment she considered probably existed in the father’s home directed towards the mother. In making that statement the Family Consultant was alive to the fact that “in litigation you need to say the most negative things”.
SECTION 60CC(4) & (4A)
In these reasons I have received evidence about the circumstances in which the child has resided since the separation of the parties. I have also received evidence from the parties about the events they consider important since the separation of the parties. I have had regard to those matters and referred to same where appropriate in these reasons.
The parties have been unable to fully fulfil their responsibility as parents since the separation, largely due to the difficulty they experience in communication. Apart from the necessity to deal with a prior partner where the emotional scars from the breakdown of the relationship are not yet fully healed these parents have the additional burden of having to communicate in circumstances where they are both deaf. They principally communicate by text message however each has accused the other of not responding to text messages at different times. On occasions one of the parents has complained that they have not received a particular message.
Due to the poor communication between the parties the father in particular has complained that he has not been able to participate in making decisions about long term issues for the child. This was particularly so when the mother changed the child’s school from H Public School to W Public School.
The evidence satisfies me that the orders for the child to spend time with the father have predominantly been complied with.
Balancing of all considerations under Section 60CC and the defined issues
Considering and weighing all of the evidence and considerations in this case I conclude that the best interests of the child would best be attended to if she was to live with her father and spend time with her mother. The precise configuration of that regime will be considered below.
Section 61da
Each of the parents and the Independent Children's Lawyer submit that I should make an order for equal shared parental responsibility. The Family Consultant supports such an order being made. That support for the order is made notwithstanding the evidence as to the poor level of communication and also the poor relationship between the parties.
If there was to be an order for sole parental responsibility in this case then the practical considerations would support the father being the parent with that responsibility as the child will be mainly in his care. Such disenfranchising of the mother would be likely to have a devastating effect upon her and thereby potentially denigrate from her ability to parent the child and develop an ongoing relationship with her.
In the circumstances I consider that, provided the parties can improve their communication and trust, then they should be able to reach decisions about long term considerations and arrangements for the child. The Independent Children's Lawyer has recommended some orders which aim to improve communication and trust between the parties. Those orders are not opposed by either party. I propose therefore to make an order for the parties to have equal shared parental responsibility for the child.
Section 65DAA
Having determined that an order for equal shared parental responsibility should be made I now turn to consider whether an order for the child to spend equal time with each of the parents would be in her best interests. In so considering I need to consider whether such an order would be reasonably practicable. If it is I am to consider making such an order.
In the event that I consider I should not make an order for equal time for the child to spend with each parent then I must consider whether an order for the child to spend substantial and significant time with each parent is in her best interests. I am to consider if such an order would be practicable.
In this case the Independent Children's Lawyer and the father seek an order which is not an equal time order. It is an order for the child to spend substantial and significant time with each parent.
The mother in her minute of order (Exhibit “M1”) the mother sought orders which were not equal time orders. She sought that the child live with her and spend time with the father. Her proposal would see the child living with her father during school terms for five out of every fourteen nights.
None of the submissions made in this case support equal time. The Independent Children's Lawyer submits that the level of communication between the parties and the requirement for the child to be woken at 5.00 a.m. in her mother’s home on school days makes an equal time regime unworkable. I agree with such submission. I further conclude that an equal time arrangement for the child at this time is likely to place added strain on the relationship between the mother and the child and therefore be counter productive to one of the main objects and ambitions of court orders namely to ensure so far as is possible, that children can grow their relationships with each parent in a positive emotional environment.
All the parties in this case advocate the child spending significant and substantial time with each parent. Each of the parties’ proposals evidence such a circumstance. Considering all the evidence in this case I am of the view that the best interests of the child dictate that she spend significant and substantial time with each parent. Each proposal of the parties if implemented would achieve that.
The Orders
Exhibit “ICL1” contains the Independent Children's Lawyer’s proposal for orders to be made in this case. The father supported the orders proposed by the Independent Children's Lawyer and said he would not be heard to oppose the making of those orders. He did submit that additional orders should be made relative to the care of the child in the mornings during school term whilst she lives with her mother.
The Family Consultant suggested that any future changeovers for the child which could not be managed through collection and return to school should be between the parties themselves and not have extended family members present.
I acknowledge the stated concern of the father that he may expose himself to an allegation of violence and thereby invite further AVO proceedings. He therefore has taken with him a witness at times when he meets the mother for any changeover. On the other hand, it seems that if there ever was an AVO order against the father it was in 2003 and there has been no further complaint to police by the mother since that time.
In her oral evidence the Family Consultant told me there would be an advantage to the child if the time she spent with the non-resident parent were in one block per fortnight rather than two blocks which is currently the case. This she said would reduce the number of changes for the child.
The Family Consultant recommended that the child have counselling after the case in order to help her “sort through her feelings”.
A matter of dispute still existing between the parties is the care of the child on the school mornings she spends in her mother’s house. This is a problem which is difficult to solve. The child focused issues are as follows:
·The child resents having to be taken from her bed at about 5.00 a.m. on school mornings.
·The child expresses her complaint about the abovementioned aspect of her care to her father and his family. They support her concern and consider she should not be required to participate in such an arrangement. That then gives rise to a perceived negative emotional environment in the father’s home, directed towards the mother.
·The mother needs to be at work by about 6.30 a.m. in order to finish her work before the school day concludes so she can collect the child from school.
·The mother’s brother, who shares the house with her, works in the Sydney CBD and usually leaves for work at an early hour. He is not available to take the child to school or to ready her for school on any consistent basis.
·There appears to be nothing further the mother can do to change her workplace or work hours.
·There do not seem to be sufficient financial resources between the parents to be able to employ a person to attend at the mother’s house in the morning to care for the child and take her to school.
·The relationship between the parents is not sufficiently co-operative and supportive to make a viable solution which would see the father attend at the mother’s house to care for the child in the morning before school.
·If the mother delivers the child to the father’s house each school day morning then the child will need to be taken from her bed even earlier than 5.00 a.m. as the trip will involve the mother in about half an hour of further travel.
·The father proposes that if the mother is unable to deliver the child to his residence on school days then he will meet the mother at a convenient site in order to collect her from the mother early in the morning. This proposal still requires the child to be taken from her bed very early in the morning. It further exposes the child to possible conflict between the parents.
·A child focused remedy would be one which would enable the child to have frequent contact with her mother in circumstances where her requirement to be taken from her bed at 5.00 a.m. is minimised.
·It is a matter of common sense and common knowledge that if the child has her sleep disturbed by 5.00 a.m. removal from her bed then it is probable that this will adversely impact upon her in some way. One of those consequences may be that the child will be tired at school and thereby lessen her capacity to learn and capacity to participate in physical activities.
·If the time the child spends with her mother overnight on school days is reduced then the mother is likely to be resentful about that result. Further any additional time made up for the mother during the school week, such as from after school until 7.00 p.m will lead to the parents potentially having to come face to face thereby increasing the prospect of the child being exposed to parental conflict.
·The more the child is required to stay with her mother overnight during the school week the more likely she is to become resentful of the early morning removal from her bed and the more resistant she will become to spending that time with her mother.
The possible solution could be that the child spends time with her mother each alternate weekend from after school on Friday until Sunday evening. On the Monday immediately following the mother’s weekend with the child they could spend time together from after school until 7.00 p.m with the mother to ensure the child attends to her homework, is provided with a meal and then returned to the father. There could be one other similar afternoon on the Monday of the following week. The drop off by the mother to the father’s home is less likely to give rise to conflict than a meeting at another designated venue which would require each to be present at the venue. The drop off at the father’s home would envisage the mother stopping her car in the driveway of the fathers’ home or in the street immediately outside the home and then the child walking to the front door while the mother waits in the car to ensure the child is met at the door. Other provision could be made for the child to spend additional time with her mother. There could be a provision, for example, during each school term for the mother to have one additional weekend, of the mother’s choice, with the child. The mother would need to give four weeks notice of the additional weekend she wishes to spend with the child. Such an arrangement would remove the necessity for the child to be removed from her bed at 5.00 a.m. on school days whilst in the care of her mother. It would be expected to reduce one area of complaint the child might make to her father about her living circumstances with her mother. It would ensure that the mother still had a connection with the child’s school and would provide an environment which is more likely to be supportive of the relationship between the child and her mother.
Having considered the matters referred to in the previous two paragraphs I caused my Associate to forward a copy of same to each of the parents and the Independent Children's Lawyer. I invited further submissions. I re-listed the matter for further submission. I read out a draft of an order I was considering. Each party made further submissions. The mother’s solicitor requested some further time to obtain instructions. I gave her that additional time and requested any further submission be made by email.
The additional submission provided on behalf of the mother were as follows:
…
“2. We have advised [the mother] of His Honour's comments in relation to alternative living arrangements for [the child] depending on [the mother’s] circumstances. Further, of the order His Honour intends to make which effectively requires [the mother] to put in place arrangements to ensure that [the child] does not wake up before 7.00 am.3. In light of His Honour’s comments, [the mother] suggests an arrangement whereby [the child] lives with her from the conclusion of school on Wednesday until the commencement of school on Monday each alternate week for the following reasons:
a)[The mother’s] brother, […], usually has Thursday and Friday off work and is available to drop [the child] off at school in the morning on those days;
b)[The mother’s] mother, [the maternal grandmother], would be able to drop off [the child] at school in the morning on Monday and other days when [the mother’s brother] is not available to deliver [the child] at school.
c)It is noted that [the maternal grandmother] does reside [outside Sydney], and whilst no evidence was led during the course of the trial in relation to her preparedness to travel to Sydney, [the mother] instructs us that she has spoken to her mother and she has indicated to her she would be prepared to travel to Sydney for the purposes of facilitating the arrangement, particularly as she will be undertaking course-studies in Sydney.
d)The above arrangement provides minimum disruption to the time and activities that [the child] currently engages in whilst in the care of her father. Specifically, netball on Saturday and dancing on Monday;
e)Further, the arrangement allows [the child] to continue to attend dancing lessons on Wednesday which have been organised by [the mother].
4. It is submitted that an arrangement whereby [the child] lives with her mother from the conclusion of school on Wednesday until the commencement of school on Monday each alternate week would be in the best interests of [the child]. The arrangement allows [the child] to have a meaningful relationship with her Mother, and puts in place arrangements to ensure that [the child] does not have to wake up before 7.00 am to attend school.
5. [The mother] instructs us that [her brother] and [the maternal grandmother[ are available to undertake the role of providing care for [the child] in the mornings in the week commencing 17 May 2010. Further, in the event a change to the above arrangements is required, [the mother] shall contact [the father] and seek his agreement regarding alternative carer.
6. If the Court finds that the above arrangement is in the best interests of [the child], it is our submission that including a notation to the following effect would minimise the potential of conflict between the parties:
It is noted that for the purposes of Order ... herein, and provided that [the mother’s brother] and [the maternal grandmother] are available to care for [the child] in the morning and deliver her to school, such an arrangement would be regarded as suitable.
7. Further, it is our submission that suspending the operation of the above arrangement and putting in place an alternative arrangement is no longer necessary. If the Court, however, finds that an alternative arrangement is required, then rather than suspending the operation of the Order, an additional order may be included to the following effect:
That in the event the Mother is unable to put in place arrangements that do not require [the child] to wake up before 7.00 am and be delivered to school, the Mother shall deliver [the child] to the Father's place of residence at 7.00 pm the night before for the purposes of the Father dropping off [the child] at school the following morning, and the Mother shall collect [the child] from school at the conclusion of school on that day.
8. Finally, if the Court is considering making orders for [the child] to spend additional time with her Mother in the intervening week, [the mother] instructs that Thursday would be a preferred day as this allows [the child] to spend quality time with her mother.”
I have now had the opportunity to consider all of the further submissions. I do not repeat those submissions here. I conclude that the best interests of the child dictate that the mother be given every opportunity to spend time with the child during school term as submitted by the Independent Children's Lawyer and the father. I have concluded that one block of time each fortnight as suggested by the Family Consultant has significant advantage for the child. Although spending an afternoon with her mother in the week she will not be spending the weekend with her mother which would be desirable if the parties could substantially improve their relationship to a point where the child would feel comfortable being present with both parents and not concerned about the possibility of hostility between them.
When the matter was re-listed before me on 6 May 2010 I was told by the father’s solicitor that since the hearing concluded the parties’ relationship has taken a dramatic turn for the better. They have arranged between themselves to meet on the mornings that the child is with the mother during the school term and transfer her care to the father so he can care for her before school. I am told those meetings have been conflict free. I was told that my words spoken to the parties at the conclusion of the hearing before me had resonated with each of the parents and that they had decided to try and change things between them for the benefit of their daughter whom they both obviously love very much. A Judge of this Court can receive no greater reward than that type of news following the determination of a very complicated and sad case as this one has clearly been for me.
The further submissions made on behalf of the mother do provide a viable alternative proposal for the care of the child during school term time. However, the Independent Children's Lawyer has had no opportunity to discuss the proposal with the child. It may be that the child and the father would not oppose the regime suggested by the mother. Her proposal does not increase the time the child would spend with her mother during school term time and would permit the mother to engage with the child in her Wednesday afternoon activity once per fortnight. If it is the case that neither the child nor the father oppose the mother’s proposal then I would encourage the father to consider agreeing to same.
I do have a concern that the mother’s proposal has potential for failure from time to time as one or other of her brother or mother became unavailable to assist at a particular time. In those circumstances, the parties could agree that the mother would return the child to her father the night before the morning where she was without assistance to care for the child before school. Any attempt by the mother to put in place a further alternate arrangement without the agreement of the child and her father is likely to cause further conflict between the parties and undo any improvements in the relationship between the child and the mother.
The delivery of the Court’s decision in the case could be delayed further while the Independent Children's Lawyer speaks further with the child, however I consider this case has been in the court for far too long a period and the child, who is living with her mother at the moment, deserves to have a result as soon as possible.
The balance of the orders suggested by the Independent Children's Lawyer and supported by the father are really uncontroversial.
I have set out above my findings in relation to the issue of the child’s schooling. That determination is restricted to her current primary school attendance. There is however an issue about her high school attendance. The father wishes her to attend a Catholic education high school. The mother is not implacably opposed to that situation, however she seeks that the child attend a different school to that nominated by the father. I have a concern that in part the mother’s desire in this regard is partially motivated by proximity to her residence.
In any event, there is at least another year before the child will attend high school. The orders made by me will change the principal place or residence for the child. The parties will have an opportunity to improve their communication and move their focus more to the interests of the child in relation to schooling, as opposed to their own needs taking a disproportionate role (if that is what has been happening) in the decision which needs to be made.
The child needs to know early next year where she will attend high school. It is reasonable to anticipate that many if not most, of the child’s peers will know by the end of Term 1 next year where they will start their high school education. I propose to order that the parties confer prior to the conclusion of the first term of the child’s last year in primary school and agree upon the school she will attend for her high school education. The child should have considerable input into that decision and it is appropriate that her wishes be given significant weight. If she is to attend a private school then the parties should also agree about responsibility for the payment of school fees. I propose to so order.
I propose to make an order which specifically requires the parties to attend upon a Family Relationship Centre or other agreed counsellor prior to commencing any further proceedings in the court.
The parties should know that any future dispute between them in relation to the child and her living arrangements will require the court to consider the child’s views on the subject of the dispute. Given her age at the time of any possible future court proceedings the parties should understand it is very likely that the court determining the dispute will give considerable weight to the child’s views.
I certify that the preceding one hundred and ninety four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 12 May 2010
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