P and P
[2004] FMCAfam 122
•19 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & P | [2004] FMCAfam 122 |
| FAMILY LAW – CHILDREN – Residence – children’s wishes – family violence – parenting skills. |
Family Law Act 1975, ss.60B, 65E, 68F
R v R: Children’s Wishes (2000) FLC 93-00
| Applicant: | L P |
| Respondent: | K P |
| File No: | DGM 1621 of 2003 |
| Delivered on: | 19 March 2004 |
| Delivered at: | Dandenong |
| Hearing dates: | 3, 4 & 5 March 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Robert Halliday & Associates |
| The Respondent appearing in person. |
| Counsel for the Child Representative: | Ms Brennan |
| Solicitors for the Child Representative: | Youth Advocacy & Legal Service |
ORDERS
That all previous orders in relation to the children of the relationship C A P born 23 December 1988, S D P born 3 December 1993 and L A P born 14 June 1997 orders be discharged.
That the said children reside with the mother.
That the Mother and the Father retain joint responsibility for the said children’s long term care, welfare and development.
That the Mother have sole responsibility for the said children’s day to day care, welfare and development.
That the father have contact with the said children:
(a)On each alternate weekend from 4.30pm Friday until Monday morning;
(b)For half of all school term and end of year school holidays, in the absence of agreement for the first half;
(c)At the Christmas period at times to be agreed but in the absence of agreement from 3.00pm Christmas Eve until 3.00pm Christmas Day in the year 2004 and each alternate year thereafter, and from 3:00pm Christmas Day until 3:00pm Boxing Day 2005 and each alternate year thereafter;
(d)On Father’s day from 10.00am until 5.00pm and the said children to be returned at 10.00am on Mother’s Day, should it fall on a normal contact weekend;
(e)On each of the children’s birthdays at times to be agreed;
(f)At such other times to be agreed.
That the Father collect the said children from the Mother’s home on Friday on his contact weekend, and return them to school at the commencement of school on Monday morning.
That the mother and the father and their agents be restrained by injunction from physically disciplining the children.
That neither party denigrate the other in the presence or hearing of the children or any of them, and that neither party abuse, insult, belittle or denigrate the other.
That both the mother and the father be prohibited by injunction from discussing these proceedings and the content of the family reports with or within the hearing of the children or either of them.
That pursuant to section 65L of the Family Law Act1975 compliance with these orders be supervised, as far as practicable, for a period of 12 months by a Counsellor nominated by the Director of Court Counselling in the Dandenong Registry of the Family Court of Australia – such Counsellor may report back to the Court from time to time at his/her discretion.
That otherwise all extant applications are dismissed.
THAT pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DMG 1621 of 2003
| L P |
Applicant
And
| K P |
Respondent
And
| CHILD REPRESENTATIVE |
REASONS FOR JUDGMENT
Introduction
This application concerns residence of the three children of the parties, C A P born 23 December 1988, aged 15, S D P born 3 December 1993 aged 10, and L A P born 14 June 1997, aged 6. Currently they reside with the applicant mother. Each party has applied for an order that all three children reside with them.
The mother was born on 20 March 1972 and is 31 years of age. The father was born on 17 April 1968, and is 35 years of age. They met when the mother was 12 and the father 16. They started living together at the mother’s residence when the mother was 13 and the father 17. They lived there until after C was born. They separated finally soon after L was born. There had been previous separations.
The proceedings commenced in this court when the mother filed an application for a recovery order of the three children. The father filed a response on the 31 July 2003 seeking that all previous orders relating to the children be discharged and the three children reside with him. On 5 August 2003 a recovery order was made in this court and all three children were returned to the care of the mother.
Previous orders had been made in the Family Court. The first on
15 April 1992 concerning C alone. The most recent was on 18 February 2000. It provided that the three children were to reside with the mother and for the father to have contact two weekends out of three from 4.30pm Friday until Monday morning and half school holidays.
The children have had extensive involvement with the child protection services of the Department of Human Services (DHS). According to the mother there have been 13 notifications. Most, if not all, have been by the father. None have resulted in any action being taken by DHS.
From February 1999 until October 1999 C lived with his father. On
15 October 1999 he returned to his mother's home. He alleged his father had hit him. In June 2001 C returned to living with his father and then in June 2003 he returned to his mother.
On the weekend of 26 and 27 July 2003 the father and the children had contact. They were returned on the Sunday afternoon. An argument developed between C and his mother while she was talking to the father on the telephone. All three boys ran away from the house. The father returned and picked them up. The mother commenced these proceedings which resulted in the recovery order being made on
5 August 2003 and the children returning to the mother where they have remained since.
The mother married Mr G P on 15 April 2000. They live in a four-bedroom house, which they own. Each boy has his own bedroom. Mr P has a five-year-old son, J, from a previous relationship. He has contact with J every second weekend and on Wednesdays.
The father lives with his partner, D P. They have a daughter, T, born 22 October 1999, now aged three and a half who lives with them. Ms P has a son from a previous relationship, J aged seventeen and a half. He lives with his father and has contact with Ms P on a regular basis.
Significant issues
Preparation of a family report was ordered on 5 August 2003. A report dated 6 October 2003 was prepared by Ms Slattery. Ms Slattery had prepared two earlier reports, one in late 1998 and the other dated
4 January 2000. Subsequently an order was made for a further report. This report was prepared after Ms Slattery had viewed the videotapes of police interviews with the children after the July incident. This report is dated 7 November 2003. The three reports dated 4 January 2000, 6 October 2003 and 7 November 2003 were tendered in evidence.
The report identified a high level of conflict between the parties and the children’s involvement in that conflict, particularly by C. Events of the 27 July 2003 demonstrate this conflict. The children returned from contact. C did not bring back a piece of clothing that had gone with him on contact. The mother telephoned the father to ask that it be returned the next morning. An argument developed. C became involved. The mother smacked him across the face and told him to go to his room. S ran outside. The mother followed him and told him to go inside. When he did not she caught hold of him and forced him in back towards the house. The mother says he fell on the path as this was happening. The description given to Ms Slattery was that S's face was smashed into the concrete. He was sent to his room.
The mother says that she then went outside to continue on with her gardening. She decided that she would let the boys out of their rooms and went back inside to tell them. She discovered that all three boys had left the house and climbed the back fence. The area behind their property is a housing estate with construction in progress. The mother took her car and drove around that area. She saw the boys running and drove up after them. Her car became bogged.
The father arrived. The children would not return to the mother and went with the father. The father took the children to C Police Station and the mother followed, having retrieved her car. The C police sent them to D Police Station. The children remained with the father and he notified DHS. Subsequently the children returned to the mother as a result of a recovery order.
The mother, the father and the children describe this incident each from their own point of view and so there are differences. Those matters which are essentially relevant are;
i)after C involved himself in the dispute between his mother and his father he was smacked across the face;
ii)S fell onto the concrete and his version of what happened to him is that he was pushed into the concrete;
iii)the father seriously overreacted by the returning, becoming involved and then taking the children to the police and DHS.
iv)What should have been a routine arrangement arising out of the contact, return of some clothing, escalated into an incident of significant detriment to the children.
The children describe conflict and violence between the mother and Mr P and by Mr P to the children. Incidents described by the children to Ms Slattery were these. C said that Mr P held him down with his arms across his chest and yelled at him. Mr P said he had done this to defend himself because C was attempting to kick him. S said that Mr P dropped him on his head in the rumpus room and slapped him 15 times on “the bum”. Mr P said that he had been playing with S and had accidentally dropped him on his shoulder. He denied hitting him.
S described Mr P grabbing L, putting his head down the toilet and flushing the toilet so that he was wet. Mr P said he could do this but he was playing.
Ms Slattery was told of another incident where Mr P during an argument with the mother, made a hole in the wall. They said that the mother and Mr P fight a lot.
Both the mother and Mr P said there were some problems in their relationship. They had problems with money because of the size of the mortgage and the court proceedings about the children were a source of strain. There had been an incident the week before the hearing. They were arguing and the mother pushed over a table and with that a can of beer upsetting the can. C saw or heard what happened and came from his bedroom and helped clean up.
C describes two occasions with the father, one of them involving L . When C moved from the father’s home to the mother's home in October 1999 he said to Ms Slattery that the father had him given a backhander. The father said that he had hit C on the arm with the back of his hand. The context was that it had been alleged that C had stolen a can of drink at school. The father was questioning him about it. He was unhappy with what he was being told and, he said hit C on the arm with the back of his hand. Following this C moved back to his mother. The second occasion was in January this year.
All three children have been attending counselling with W Child and Family Services. W’s notes were subpoenaed and tendered in evidence. The notes show that in the course of one of the counselling sessions C said that his father had grabbed him by the throat. C and L both said that L had been thrown against a wall. The father said that the boys were staying with him. They had friends over and were playing on the PlayStation. C and L started fighting. He had pulled them apart to stop them hurting each other. L may have gone into the wall when this was happening.
The father believes that the children have been subjected to extensive abuse and violence. Consequently the large number of reports to DHS.
The mother is taking the children to counselling sessions at W. The father says that is at the direction of DHS. The mother says that it is at their advice. Both the mother and the father are undertaking parenting courses. The father is ambivalent about his need to undergo an anger management course.
The Law
The application has to be decided in accordance with the relevant sections of the Family Law Act 1975. Section 60B sets out the objects of part VII of the Act. Section 65E provides that in deciding what order should be made in relation to children, the paramount consideration is the best interests of the children. Section 68F sets out matters which must be considered in determining what is in the best interests of the children.
Children's wishes are an issue in this case. Proper weight must be given to the children's wishes. They should not be simply treated as a factor in the determination of the children's best interests without giving them further significance. When children's validly held wishes are departed from, good reasons should be shown for doing so, R v R: Children’s wishes (2000) FLC 93-00.
Section 68F matters
The relevant s.68F are matters are these.
Wishes of the children
Ms Slattery interviewed the children for the first report on
22 September 2003. Both C and S said that they wanted to live with their father. In this interview, when asked about Mr P C was quite negative. When asked how he would feel if a decision was made that he live with the mother he said that he would not like it much. He would like to come back and live with his father because there was no stress there. He said that part of him said that he should not leave the mother. He said that he believed that if a decision was made for them to live with the father that L would be the most upset as he is the closest to the mother, however, he said that S is closer to the father than the mother. He said that he had moved back with the mother to watch over his brothers and protect them from violence from the mother and Mr P. That was part of the reason why he went back. Ms Slattery said that was not an appropriate role for a child his age.
S was unable to think of one good thing about Mr P. He described the incident already set out. He also described an occasion when Mr P tied the bedroom doors of he and C together with fishing twine in an attempt to stop them getting out of the rooms. He wants to stay with his brothers. His concern about Mr P was that he gets hit by him as do his brothers.
L expressed a more ambivalent attitude about his father. He answered "not really" when asked if there was anything not so good about Mr P. She asked if Mr P hits them and he said "sometimes he hits us with a spoon". In response to the two questions about how he would feel if a decision was made to live with his mother and then again with his father he said he would feel sad to both.
Mr P did not attend the first interview, a matter Ms Slattery found concerning.
For the second report Ms Slattery viewed the video of police interviews with the three boys, perused the DHS files and observed the three children with the mother and Mr P. The observation took place on 23 October 2003. Ms Slattery noted that the observations took place after the release of her previous report and it having been read by all parties. She said that during the observations C spent all the time playing a game with Mr P and he appeared to be relaxed and comfortable with him. S also seemed to be relaxed and comfortable with Mr P. L stayed close to the mother and appeared to be comfortable being with her. Ms Slattery said that overall the interactions between all the members of the family were of a positive nature. At no time were there indications of the children distancing themselves from either the mother or Mr P.
The first interview on 22 September 2003 took place immediately after the children had spent a week with the father during school holidays. They had not returned to the mother prior to the interview. On
22 October 2003 the children were not again asked their wishes. Ms Slattery's observations of the relationship between C, S and Mr P are not negative, but to the contrary. In the first interview they both had negative attitudes to Mr P.
I am conscious that careful consideration must always be given to children's wishes. In this case, the wishes were expressed immediately after a holiday contact with the non-resident parent. It was closer in time to the July incident than Ms Slattery’s observations in October. Since then the children have commenced attending W and an order has been made prohibiting any physical chastisement by either parent or their agents. The evidence of both the mother and Mr P showed that both are now very conscious of the need to discipline the children by ways other than physical means. In particular, Mr P is obviously aware of the inappropriateness of not using any force on the children.
Both Mr P and the mother gave evidence that Mr P takes the children to sporting commitments and takes them fishing. The father acknowledges that this occurs and the boys enjoy the company of Mr P. Overall I consider that the evidence shows that the children are comfortable living in their current environment and that their stated wishes in September were influenced by the particular circumstances at that time.
Relationship with parents and other persons and likely effect of change in circumstances
All parties agree that the children must be kept together. The events of the second half of last year, the preparation of the reports and the attendance of the children at W, sometimes with the mother, have I am satisfied, all improved the children’s relationship with the mother. Her parenting skills and particularly her attitude to physical chastisement have improved. Independently of the order which prohibits physical chastisement I am satisfied that the mother appreciates the adverse effect on the children of events which have occurred in the past.
The mother has been the primary carer of S and L all their lives. In particular, L is particularly attached to her. He was aged one at the time of separation. Ms Slattery's observations show that L is very attached to his mother. The mother was C's primary carer until February 1999 when he first went to live with his father. The mother is employed part-time, but if the children continue living with her she will remain their primary carer.
The father's work commitments are such that he will be available in the morning before the children go to school and generally will have significant time to spend with them. His partner Ms P is not employed. She keeps house and cares for T. Inevitably, if the children were to reside with the father much of the care would be done by Ms P.
L has a particular attachment to Mr P’s son J. If L was to reside with his father he would see less of J.
C has had a troubled life, moving between parents. Another move would not assist him. It is particularly concerning that he has given as a reason for returning to his mother in the middle of last year that he needed to care for his brothers. I am satisfied that he was influenced in taking on this role by the father. The father is convinced that there is continual violence and abuse of the children in the mother's house. He said that C returned to monitor what was happening to his brothers. Particularly in the circumstances another move for C would be unsettling. A move would mean a change in schools. C's school report shows that he is doing well. It shows that he needs to give more attention to his work. There are some comments about distracting behaviour and attention seeking during classes. A change in schools, admittedly back to one he has already attended, would be yet another unsettling factor.
The capacity of each parent to provide for needs
Each parent has satisfactory residential premises. The mother and Mr P are purchasing their home. The father and Ms P are renting. The father showed obvious interest and concern for C’s schooling during the periods that C lived with him. He assisted him with his home work and was engaged with the school. Of concern is that C saw his return in mid-2003 to his mother as a means of monitoring what was happening with his brothers and that he was influenced in this attitude by his father. This and the father's actions on 27 July 2003 when he took the children to the police shows a lack of appreciation by the father of a need to attempt to insulate the children from the conflict between mother and father.
The notes of the children's attendance at counselling sessions at W show that the children have benefited from them. I infer that as a result the relationship with the mother, the current primary carer, has improved. The mother is attending a parenting course and as I have already said, I consider that she is improving her parenting skills, and in particular appreciates that there cannot be physical chastisement.
The need to protect from harm and family violence
This is the father's principal concern. He believes that the children have been subjected to constant abuse and violence. Ms Slattery found this a troubling and difficult case. Ultimately her recommendation was that if it was found that there was violence between the mother and Mr P the children should reside with their father. I take into account the mother’s and eventually Mr P’s involvement in the preparation of the family report, the apparently current settled family environment and the evidence of the mother and Mr P, which shows that they appreciate the need to avoid violence. I am satisfied that there has not been violence to the extent alleged by the father. While the children said to Ms Slattery that they were hit by Mr P, not many specific instances were given.
Given what has happened in the past the possibility of violence between the mother and Mr P and violence towards the children must still exist. However, I consider that the risk is considerably less than in the past and as I have already said, that there has not been a constant cycle of violence and abuse as alleged by the father.
Conclusion
My consideration of all these factors leads me to the conclusion that the best interests of the children will be served by continuing to reside with the mother.
The current contact arrangements are two weekends out of three with the father. The mother works, although not full-time. The two older children have considerable sporting commitments, these and other weekend commitments will increase as they get older. The same will start to occur with L. The mother seeks that the contact arrangements change to alternate weekends. Alternate weekend contact will help with achieving stability for the children. I consider that the circumstances justify the change.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: R. Campbell
Date: 22 April 2004
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