P and M and Ors
[2002] FMCAfam 382
•27 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & M AND ORS | [2002] FMCAfam 382 |
| FAMILY LAW – CHILDREN – Contact – best interests of the children – wishes of children – application by father for overnight contact – children residing with maternal grandparents – children of Aboriginal descent. Harrison & Wollard (1995) 18 Fam LR 788; FLC 92-598 |
| Applicant: | P J P |
| First Respondent: | K V M |
| Second Respondent: | W J M |
| Third Respondent: | D A M |
| File No: | PAM 1234 of 2002 |
| Delivered on: | 27 November 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 8 November 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person |
| Solicitors for the First and Second Respondent: | Mr Knibb |
| The Third Respondent in person |
ORDERS
All earlier orders relating to contact are discharged.
The Applicant father is to have contact with the children A J M born
13 October 1993 and J R M born 5 September 1995 as follows:(a)each alternate Sunday from 9.00am to 6.00pm;
(b)from 9.00am to 6.00pm on Father’s Day each year;
(c)for a period of not less that two hours on each of the children’s birthdays and on their father’s birthday;
(d)from 9.00am to 6.00pm on Boxing Day in each year; and
(e)by telephone each Wednesday between the hours of 7.00pm and 8.00pm, on each of the children’s birthdays and on Christmas Day.
The father is not to exercise contact with the children on Mother’s Day in each year.
The father is to administer any necessary medication to the child A whilst the child is in the father’s care.
Neither party is to denigrate or criticise the other party in the presence or hearing of either or both of the children or permit any third person to do so.
The First and Second Respondent grandparents are to advise the father within a reasonable time of any medical emergency involving either child, or any circumstance requiring the treatment of either child at any hospital, or of any medical specialist appointment required by either child.
The father is to advise the grandparents within a reasonable time of any medical emergency involving either child whilst the child is in his care.
The Respondents are to sign all documents and give all necessary authority to the principle of any school attended by either of the children to permit the school to forward to the father copies of all school reports, bulletins and newsletters and other documents usually forwarded to parents of children attending that school.
The father is restrained from administering to himself any prohibited drug during or for 24 hours before any period of contact with the said children.
The Respondents are to permit the child B L M born 1 November 1990 to accompany the father and the said children A and J on any period of contact PROVIDED THAT the said child B expresses a which to attend such contact AND the father agrees that the said child B may attend.
The father is permitted to attend any sporting event in which either of the children A or J is participating on a Saturday morning and for this purpose the Respondents shall do all such things necessary to provide the father with a copy of the draw for the children’s soccer teams.
All documents produced on subpoena other than exhibits may be returned.
The application is removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1234 of 2002
| P J P |
Applicant
And
| K V M |
First Respondent
AND
| W J M |
Second Respondent
AND
| D A M |
Third Respondent
REASONS FOR JUDGMENT
This is an application by the father for overnight contact each alternate weekend with his two sons, commencing at 6.00 pm on the Friday evening. The children currently reside with the First and Second Respondents, who are the children’s maternal grandparents.
The First and Second Respondents, in their Response, ask that the contact be from 9.00 am to 5.00 pm each alternate Sunday, as it is now. They also ask for orders requiring the father ensure that the older boy, A, takes his medication whilst in his father’s care, that the father does not denigrate them in front of the children, and that the father ensures that the child A continues to attend his regular sporting activities, including soccer.
The Third Respondent, who is the children’s mother, filed no documents in these proceedings apart from a Notice of Address for Service. She was not legally represented. She indicated to the Court that she generally supported her parents’ position.
Background
The parents are both 31 years old. Each one of them had been involved in the use of illicit drugs. The mother has a child by an earlier relationship, a girl called B L M who was born on 1st November 1990. That child lives with the maternal grandparents. Her father died in 1996.
The mother and father met in 1991. They were both involved with illicit drugs and the father served several short prison sentences during the years 1991 to 1996. The child A J M was born on 13th October 1993 and the younger child, J R M, was born on 5th September 1995.
The father was still involved with drugs, and in 1996 he was sentenced to imprisonment for his part in an armed robbery. He was released from prison in 2000. The mother terminated her relationship with the father in 1996 and, the following year, the children commenced residing with the grandparents. The mother also resided with her parents and the children for a while, but moved out in 1998. The children remain living with the grandparents.
The grandparents subsequently obtained orders from various courts providing that the three children should reside with them. There were orders made for the Applicant father to have contact with A and J, and this contact commenced once the father was released from prison. The mother has regular contact with all three children.
The father commenced these proceedings in April 2002, complaining in his original affidavit that he had had very little contact with the children since August 2000, and that contact was controlled by the grandparents. He alleged that his contact with the children only amounted to a total of 53 hours between 12th August 2000 and 24th March 2002. It is also an issue with the father that he is Aboriginal, and so the boys are also Aboriginal, but that he believes that they have very little contact with his family and very little exposure to their Aboriginal culture.
When the matter came before the Court on 17th May 2002, the father and the grandparents attended counselling, but no resolution of the matter was reached. Nevertheless, the father and the grandparents entered into consent orders on an interim basis, with the assistance of the grandparents’ solicitor, Mr Knibb. Those orders provide for the following:
(a)the father to have contact with the boys each alternate Sunday from 9.00 am to 5.00 pm;
(b)the father to ensure that he administers A’s medication to him;
(c)the father to have telephone contact with the boys each Wednesday evening; and
(d)neither party is to denigrate the other in front of the children.
It was noted that the parties would try overnight contact during the period between that date and the final hearing, and the father would consider his financial obligations in respect to the children.
Contact commenced in accordance with the consent orders and has continued regularly, but overnight contact has not commenced.
The mother was joined as a respondent. The Court ordered that a Family Report should be prepared, and the parties attended for interviews with the family and child counsellor who prepared the report.
Issues
The issues for the father concern the amount of contact that he has had in the past and his wish to have his children for overnight contact. He would like his children to be able to spend time with their extended family, including his mother and his sister. He does not believe that the grandparents are paying sufficient regard to the children’s aboriginality. He sees the grandparents as being very controlling of his contact with the children whilst being quite generous with the mother. The mother has contact with the boys for periods of up to two weeks during the school holidays. The father is concerned that the boys’ sporting involvement is being used as a way to limit his contact with them.
The relationship between the father and the grandparents is not good, and between the father and the mother appears to be almost non-existent. The father believes that the grandparents have not accepted his efforts to put his past behind him, including his involvement with drugs and crime, nor have they appreciated his conversion to Christianity and his desire to live a law-abiding life in the future.
The grandparents are still suspicious of the father’s criminal and drug-involved past, which led to periods of imprisonment. They allege that he was in the past violent to the mother and B. They also refer to the father having had an addiction to gambling. In short, they are dubious about the extent of his rehabilitation.
The grandparents consider that the father does not appreciate that the boys, particularly A, have Attention Deficit Hypoactivity Disorder, which needs regular medication with Ritalin. A has had a number of behavioural difficulties. They see the boys’ sporting involvement as beneficial to them. A appears to have a talent for soccer, which they are encouraging, as it appears to them that his sporting activity has enabled him to accept a more disciplined lifestyle and get on better with other people.
The Family Report
Court Counsellor V S, who interviewed the father, the mother, both grandparents and both of the boys, prepared a Family Report. The counsellor also observed the boys with the father[i], and later the child B joined the group.
The father told the counsellor that he was currently working as a storeman and living in a one-bedroom cabin. He told her that he was in a relationship with a lady called M C and that they planned to live together in the near future. Ms C did not attend the interviews with the counsellor. The father told the counsellor that he planned to have overnight contact at his mother’s residence. Mr P’s mother did not attend the interviews with the counsellor.
The counsellor interviewed the two boys. The older boy, A, told the counsellor that he enjoyed going out with his father to activities like the movies and bushwalking, but “he firmly stated that he did not wish to go on overnight contact”[ii] although he did not give any reason. He went on to tell the counsellor about playing tennis on Friday afternoons and playing soccer on Saturday mornings.
The younger boy, J, aged seven, also told the counsellor that he liked his father but indicated an “ambivalence” regarding contact. As far as overnight contact was concerned, the counsellor reports:
“Initially, he seemed unsure as to whether or not he wished to stay overnight on contact. He then stated that he did ‘not really’ wish to stay with his father overnight, even at the home of his paternal grandmother. He also stated that he did not know whether or not he wished for contact to Mr P to remain the way it was.”[iii]
It is interesting to note that the child B, aged eleven years and ten months, was invited by the counsellor to join the observation “as she seemed keen to do so”. The counsellor noted the father’s earlier expression of “deep regret” at the breakdown of his relationship with B (notwithstanding the grandmother’s complaints of his earlier violence and abuse). The counsellor reported on B in this way:
“B had also indicated a desire to see Mr P and seemed to feel somewhat left out as the Court proceedings did not directly involve her. B responded positively to Mr P’s warm greeting to her and his invitation to join in the play.”[iv]
The counsellor’s observations of the father with the children, first the two boys and then B as well, show the father as being able to engage appropriately with the children. Whilst J indicated a high level of anxiety by stuttering quite badly, the father was reported as “warm and encouraging” with him, leading the boy to relax and chat freely with him. In an incident where A showed a display of bad temper, the father “was able to calm him down and patiently explain to him that his interpretation of events may have been incorrect. He also admonished A when A referred to B as a ‘bitch’. Mr P was able to organise all three children to share and by the end of the observation, all three children were relaxed and happy in his presence.”[v]
The counsellor was not required for cross-examination, and her findings are therefore unchallenged.
Principles to be considered in contact proceedings
When a court exercising jurisdiction under the Family Law Act 1975 is considering making contact orders concerning a child, section 65E of the Act must be followed. This section lays down that the court “must regard the best interests of the child as the paramount consideration.”
Section 60B(2) sets out a number of principles which a court must take into consideration, except when the application of any of them is or would be contrary to the child’s best interests. Sub-section 60B(2)(b) refers to children’s right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Section 68F(2) sets out a number of matters that a court must consider when determining what is in a child’s best interest. There are twelve of them in all, from sub-sections 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered, as the court has done in this matter.
The best interests of the child – application of s.68F(2)
Section 68F(2)(a) requires the court to consider any wishes expressed by the child and any factors, such as the child’s maturity and level of understanding, that may be considered to be relevant to the weight the court should give those expressed wishes. The child’s maturity, as well as the child’s sex and background, are also to be considered under sub-section 68F(2)(f).
The wishes of the child were considered in some detail by the Full Court of the Family Court of Australia in Harrison v Woollard (1995) 18 Fam LR 788; FLC 92-598, where Fogarty and Kay JJ held:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day-to-day experience the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
In that same case, Baker J held that:
“A child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial judge. Furthermore, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given, particularly if the separate representative submits that the Court should give effect to such wishes. The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in an individual case.” It should be noted that the Full Court has held that the wishes of children as young as eight years down to four years would not be irrelevant (Joannou and Joannou, (1985) FLC 91-642).
The wishes of the children were also considered by the Full Court of the Family Court in R and R: Children’s Wishes (2000) FLC 93-000, where the Court held that, whilst proper weight should be given to children’s wishes, this did not mean that those wishes should not be departed from. Appropriate and careful consideration must be given to those wishes. They should not be simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from by the trial Judge, good reason should be shown for doing so.
In order to make orders contrary to the children’s wishes, it is not necessary for the Court to determine that those wishes are unsound, founded on improper considerations or influenced by others. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case.
More recently, this issue has been considered by the Full Court of the Family Court in R and R [Children’s Wishes] [2002] FamCA 383, where the Full Court held that “the principle is clear that a Court must take the children’s wishes into account, but is not bound by them.”
In this case, it appears from the Family Report that the children are both expressing a wish not to go on overnight contact with their father at this stage. The boys are aged seven and nine years, so even J’ wishes would not be irrelevant (Joannou, supra). I do not take this reluctance to mean that overnight contact would never be contemplated, as the boys were observed to relate well to their father, but a program of regular contact will need to continue so that the boys will be able to be ready for overnight contact in due course.
Sub-section 68F(2)(b) states that the Court must consider the nature of the relationship of the child with each of the child’s parents (where applicable) and with other persons.[vi] In the case of Bright and Bright v Bright and Mackley, (1995) FLC 92-570, Treyvaud J considered the desirability of a child having contact with grandparents in the light of the welfare of that child being the paramount consideration. His Honour said that:
“It is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.”[vii]
The relationship between the boys and their mother is not a matter for this Court to decide upon, but it is clear that the boys have a comfortable relationship with their grandparents, with whom they have lived for five years. Their relationship with their father was distant because of his incarceration, but has improved since then. It certainly appears that the program of contact introduced by the consent orders made on 17th May 2002 has been beneficial and I see no reason why the contact should be reduced from its present level. The counsellor, in her summary and recommendations, expresses this opinion:
“While both boys clearly seem to enjoy time spent with their father, they have not yet had adequate time to build up their relationship with him to the point that they feel secure enough to stay overnight.”[viii]
The evidence suggests that this relationship will continue to strengthen if regular contact continues.
Sub-section 68F(2)(c) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect of separation from a parent or any other child, or any other person with whom that child has been living. This consideration is usually more relevant in residence cases than contact applications.
At this stage, there is no proposal for any radical change in the circumstances of either child, except a proposal for overnight contact. It does not appear that the children are ready for overnight contact just yet.
It is important to consider the practical difficulty and expense of a child having contact with a parent.[ix] This factor is subject to the principle that the best interests of the child remains the paramount consideration (B and B: Family Law Reform Act 1995 (1997) FLC 92-755).
There does not appear to be any real difficulty with arranging contact. The father currently lives at A, the children live with their grandparents at W W. Whilst there is a level of mistrust between father and grandparents, if there is a regular defined pattern of contact, this can be followed by the parties so that the children will benefit.
The Court must consider the capacity of each parent, where relevant, or other person, to provide for the needs of the child, including emotional and intellectual needs.[x] In this case, the grandparents were forced to assume the role of carers for the children, as neither parent was in a position to do so at the time. The father was in prison, the mother had apparently had some sort of a breakdown. Clearly, the grandparents have taken on the difficult task of caring for the children, as they have with B, whose natural father is deceased, and they have obviously done well.
The father has shown in the observation session with the counsellor that he possesses an empathy with the children and an ability to relate well and appropriately with them (and with B, also). He does not necessarily possess the knowledge about the extent of A’s behavioural disorder, and it may be advisable for him to be involved in the child’s treatment.
Sub-section 68F(2)(f), as I indicated earlier, requires the Court to consider the children’s maturity, sex and background and any other relevant characteristics.
The children in this case are two young boys who have had little contact with their father until recently. The father is Aboriginal, and the boys have a need to maintain a connection with Aboriginal lifestyle, culture and traditions. The grandparents have taken some steps in this area by securing the involvement of an Aboriginal liaison officer at their school. It is part of the father’s responsibility to instil this knowledge into the children. It would be desirable for them to spend some time with their father’s immediate family, and learn more about their own background.
Sub-section 68F(2)(h) makes it clear that it is important that the Court take into account the need to protect the child from physical or psychological harm, either by being directly subjected or exposed to abuse, ill-treatment, violence or other behaviour, or by seeing or hearing another person being subjected or exposed to such ill-treatment.[xi] This sub-section deals with subject matter that is also to be considered under sub-sections 68F(2)(I) and (j).
This has been an issue in the past, as the father (and the mother) were involved in drug abuse. The father has allegedly had a gambling addiction and an involvement in crime, which has led to his imprisonment on more than one occasion. The grandparents refer to the father’s violence and abuse directed towards the mother and B.
The father, however, says that he has taken significant steps toward rehabilitation. He says that he is now ‘clean’ (ie. no longer using illicit drugs, except for the occasional use of marijuana) and he has obtained employment. The father told the Court during his evidence that he was quite happy for the Court to make an order that he was not to take or use an illegal substance whilst the children were in his care or for 24 hours beforehand. He has formed a relationship with a lady called M C and he has the support of his church. A pastor from his church has acted as his McKenzie friend throughout these proceedings.
The attitude to the child, and to the responsibilities of parenthood, displayed by each parent must be taken into account by the Court.[xii] The father appears to be making an effort to be a good parent, based on what appears to be a genuine wish to be with his children. The mother was somewhat sceptical in her conversation with the Court Counsellor, but even she acknowledged that he was “trying” to be a good father.
The occurrence of any family violence, and whether or not there is a current family violence order (commonly referred to as an Apprehended Violence Order, or AVO), is covered by sub-sections 68F(2)(I) and (j).[xiii] There is no Apprehended Violence Order in force, on the evidence available to the Court. There have been allegations of violence in the past.
The question of domestic violence has been given a greater deal of consideration by courts exercising jurisdiction under the Family Law Act in recent years. In Jaeger and Jaeger, (1994) FLC 92-492, the Full Court of the Family Court held that evidence of the possibility of violence in the household of one of the parties was relevant and admissible in custody proceedings.
This theme was developed by Chisholm J in the Family Court, in JG and BG, (1994) FLC 92-515. His Honour held that:
(a)in proceedings relating to custody, guardianship and access, evidence of family violence is relevant insofar as it assists the Court in determining what orders will best promote the welfare of the children;
(b)the Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children;
(c)so far as the evidence allows, the Court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children;
(d)where the evidence permits the Court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child’s welfare, the Court will make the findings; and
(e)where the Court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the Court to refrain from making the findings. If such discretion exists, the Court will exercise it on the basis of a consideration of whether the children’s welfare is most likely to be promoted by making or declining to make such findings.
There are no current allegations of violence by the father. If the grandparents had a concern that the father’s behaviour was, or was likely to be, violent, their solicitor would no doubt have raised the issue. It does appear, that there are derogatory remarks made, which is a matter for concern,
In Patsalou and Patsalou, (1995) FLC 92-580, the Full Court held that the making of derogatory or denigrating remarks by one party to another and the inflicting of physical violence by one party on the other are relevant matters to be taken into account in custody and access cases, and any person who indulges in such behaviour presents a very poor role model and his or her suitability as a custodial parent must be very much in doubt. The approach in both JG and BG and Patsalou was approved by the Full Court in Blanch v Blanch and Crawford (1999) FLC 92-837. The question of a violent and abusive parent being a poor role model and posing the risk that the children might learn from the abusive behaviour and ultimately treat it as acceptable was one issue covered by Mullane J in his most comprehensive judgment in M v M (2000) FLC 93-006.
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[xiv] (or children). In this case, I propose to make final orders that will spell out to the parties exactly what their rights and obligations are, in the hope that future litigation can be avoided.
Any other relevant fact or circumstance that the court thinks is relevant[xv]. There are no other relevant matters.
Conclusions
The father clearly wishes to build up his relationship with the two boys. The grandparents still distrust him, based, no doubt, on their past experience. It will take time for the father to establish that he has rehabilitated himself, although he clearly appears to have made significant steps.
I am not of the view that the time has yet arrived for overnight contact to commence. The boys have made it clear that this does not meet their agreement, and I am satisfied that their wishes should be given some weight, even though they are both still under the age of ten years. The positive observation by the counsellor of the father’s interaction with the boys and also with B shows that there is a strong foundation for a good father/child relationship to build up.
The father’s current residential accommodation poses some difficulty as far as overnight contact is considered, although the father has considered this matter by suggesting that overnight contact could be at his mother’s house. This is a matter that is worth pursuing in the future.
It was unfortunate that there was no evidence either from the paternal grandmother or from M C. If the father’s relationship with Ms C progresses to a permanent, live-in relationship, her evidence would be of assistance in any future proceedings.
In the meantime, I agree with the counsellor’s suggestion that the father could involve himself in the boys’ sport, as this appears to be beneficial to them. This involvement should not be in substitution for his regular contact with them, but in addition to it. The boys may well appreciate his attendance at a soccer game, for instance, on a Saturday morning. Their sporting exploits and misadventures would help to provide valuable talking points to share with their father.
The counsellor made the recommendation that the child B should be able to spend some time with the Applicant when he takes the boys on contact visits. B is not, of course, the subject of the father’s application. He is not B’s natural father, and her natural father is now deceased. The counsellor expressed the opinion that B could benefit from inclusion in the boys’ contact visits. I am of the view that B should be given the opportunity to participate in some outings with her brothers if and when the Applicant feels that he is able to take her as well. B may not wish to go, but it is hardly good for her to miss out.
For the time being, I am of the view that it is too early for overnight contact to be introduced, and there is not enough evidence to say when that stage might be reached. As the boys are getting older and more used to their father, and as the days get longer now that Summer has arrived, I believe that the contact time could safely be extended to 6.00 pm rather than 5.00 pm. There should also be the opportunity for the children to see the father on special occasions like Father’s Day and on their birthdays. There should be some contact around Christmas time, too.
It is for these reasons that I propose to make the orders in the attached schedule.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 22 November 2002
[i] Although the summary of the report wrongly refers to an observation of the boys with “Mr M” instead of “Mr P”.
[ii] Family Report, page 5
[iii] ibid, page 6
[iv] ibid, page 7
[v] ibid, page 7
[vi] Sub-section 68F(2)(b)
[vii] at page 81,658
[viii] Family Report, page 7
[ix] Sub-section 68F(2)(d)
[x] Sub-section 68F(2)(e).
[xi] Sub-section 68F(2)(g)
[xii] Sub-section 68F(2)(h)
[xiii] Sub-sections 68F(2)(I) and (j)
[xiv] Sub-section 68F(2)(k)
[xv] Sub-section 68F(2)(l)
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