Palermo and Ingham - [2008] FMCAfam 195

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PALERMO & INGHAM

[2008] FMCAfam 195

FAMILY LAW – Parenting orders – child of sixteen refuses to return to parent with whom he has lived since separation – weight to be given to his wishes – need to restore relationship with parent to whom he does not wish to return.

Family Law Act 1975, ss.60CC and 61DA

Applicant:

MS PALERMO

Respondent:

MR INGHAM

File number:

ADC 171 of 2008

Judgment of:

Lindsay FM

Hearing date:

6 February 2008

Date of last submission:

6 February 2008

Delivered at:

Adelaide

Delivered on:

6 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms T. Lewis

Solicitors for the Applicant:

Angela Ferdinandy

Counsel for the Respondent:

Mr D. Moore

Solicitors for the Respondent:

KJB Law

ORDERS

Until further order, all previous parenting orders made with respect to N born in 1991 be suspended.
Until further order, the said child do live with the father.
The father do all such things as may be reasonably required to facilitate the said child spending time with the mother:
(a)between Friday 8 February 2008 and Sunday 10 February 2008 including, but not limited to, purchasing at his own expense return airfares for the said child between Canberra and Adelaide; and
(b)the first half of the Canberra April School Holidays NOTING THAT the cost of the airfares for the said child between Canberra and Adelaide is to be shared equally between the parties.
The parties do all such things as may be reasonably required to facilitate the preparation of a supplementary report by Ms S arising from a further interview with the said child NOTING THAT the said child is to participate in such further interview whilst he is present in Adelaide in the first half of the April School Holidays and the interview is to take place on the basis that no other person is present with the said child during such interview AND FURTHER NOTING that the cost of the supplementary report is to be shared equally by the parties.
Further consideration of this matter be adjourned to 7 May 2008 at 9:30am (SA time).
The parties file and serve any further affidavits upon which they propose to rely on the adjourned date by not later than the close of business on 2 May 2008.
There be liberty to the mother to apply at short notice in the event of non-compliance by the father with paragraph 3(a) of this Order.

IT IS NOTED that publication of this judgment under the pseudonym Palermo & Ingham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 171 of 2008

MS PALERMO

Applicant

And

MR INGHAM

Respondent

REASONS FOR JUDGMENT

In this matter I have been asked to make parenting orders in relation to one child of the relationship of the parties, the child N who is between 16 and 17 years of age. I will give a brief account of the history of the matter. I am not suggesting it does justice to the detailed submissions that have been made or the detailed affidavits that have been filed by the parties.
The four children of the relationship remained with the mother following separation. The eldest child S, who is now some 21 years of age, has been living with the father for some time; since she attained her majority. The three younger children - they include a child, A, who is 18, this child N and a younger child L who is 13 - live with the mother. The mother lives in Adelaide; the father lives in Canberra.
There have obviously been some positive aspects to the way in which the parties have approached the parenting of the children because the father’s time with the boys has not really needed to be regulated. The current orders say that the husband has face-to-face contact on an overnight basis, whenever he is in Adelaide, with handover arrangements to be agreed between the parties, and one half of each of the holidays, dates and times to be agreed.
The affidavit material indicates that there has not really been a problem in making those arrangements, although, reading between the lines somewhat, the level of communication between the parties is poor if not nonexistent.
In any event, N has been living with his mother and seeing his father. He has been attending S School. During the Christmas holidays just gone he remained with his father; he did not return with his brothers around about the middle of the holidays, which is when the mother would have expected him to return. The fact of his remaining was more or less - and this is my description - announced to the mother; it is not a matter about which she was consulted by the father.
It is not either as if, as Ms Lewis pointed out, the father engaged in some discussion with the mother in an attempt to identify the child’s problems here in Adelaide, because he obviously has some difficulties, to try and sort them out. There was an announcement that the child would be staying.
What has happened here is what happens when people make announcements to other parties rather than engage in genuine consultation: there is litigation that follows. It is almost ineluctable in such circumstances.
Since then, as I say, the parties have been assisted by the fact that their legal practitioners have filed affidavit material that has carefully identified the issues.
The father has engaged a child psychologist, a lady by the name of

Ms S, who has prepared a report. We always approach reports prepared at the behest of one party, in these situations, with a great deal of caution, and quite properly so. The opportunity for the cueing of a child, even a child of N’s age is possible; there is a question of: he who pays the piper calls the tune.
All sorts of considerations apply which make us sceptical - sceptical in the best sense - about these reports but this report I found very helpful. I suppose for that reason the mother through her counsel, recognising the strengths of her report, did not reject or argue against its admission in these proceedings, interim as they are.
The report indicates what the parties I think knew in any event from their separate discussions with N: that he has been unhappy at school. He is having a difficult adolescence. It is fair to say though, reading Ms S’ report, that the focus of his discontent or his unhappiness or his difficulties has been school. His problems with his mother, as far as they are revealed to Ms S, are really problems about communication, they are really apprehensions on his part about how his mother would receive any request on his part to live with his father.
Even though they are just about school - I say “just about school” - they are still significant; obviously that is a significant part of a young man’s life - there appear to be problems related to school in the making of friendships and the like. We are told he has made a decision he wants to live with his father. His father has made arrangements for him to attend school in Canberra.
These are proceedings pursuant to Part VII of the Family Law Act 1975 (the ‘Act’) and N’s best interests will be my paramount consideration in determining this matter.
Given his age, given the fact that there are already longstanding agreed arrangements between the two parties, this is the sort of interim hearing where the application of the presumption is just not appropriate in terms of s.61DA(3) of the Act. The matter is not going to be determined upon the basis of the application of a presumption about equal shared parental responsibility or equal time flowing from that; it is going to be determined by having a close look at s.60CC and the various matters that instruct me how to go about determining what is in this child’s best interests.
It is not an easy task, given his age and given the way in which the proceedings have come before the Court. As I say, this is the legacy of unilateral actions of the father - or of the child but as permitted by the father.
When I look at s.60CC of the Act, the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from harm. In sub-s.(3) I am told to take into account the views expressed by the child, and that is obviously a very significant matter in this case.
Even if one treats with some caution any views expressed to the father, we have the views the child expresses to the psychologist. They are unambiguous. Although we must take into account, I think, the fact that, as the psychologist says, this is a child, for the purposes of these proceedings, who is timid, hesitant, finds it difficult to express himself, and I think the counsellor infers - as I would have inferred anyway from the documents - that he is a child whose will might be overborne by what he is either told to do by other people or what he thinks other people expect of him, nevertheless, even with that reservation, obviously his views are a very significant matter in this case.
I am also directed to take into account the nature of his relationship with the parents and other persons and the other persons here must include his siblings. He is having an opportunity, whilst in Canberra, to relate more frequently to his older sister but that is an opportunity, of course, that he can take up during the holiday periods he has been spending with his father. I do not think that is a significant matter in the context of these proceedings.
More significant is the fact that his relationship with his brothers - one older, one younger - has been interrupted. The information that has been made available to me at this afternoon’s hearing indicates to me that the child has a reluctance to speak with his brothers. That might be consistent with the picture that is painted of his hesitancy. He might have difficulty explaining to his brothers the decision he has made. He might have that difficulty because, really, the decision is not based on proper grounds, or it might be because it is based on proper grounds and he just knows his brothers will be disappointed.
I think his relationship with his brothers is a significant matter, and the need to do what we can to repair that is a significant matter, as is the need to repair his relationship with his mother. At the moment, with him in Canberra, having made this significant decision, the main dynamic of his relationship with his mother and his brothers is just avoidance. Given what we know of his nature that might be something that would, if unchecked, continue to express itself for many weeks or many months.
There is a whole raft of other matters under s.60CC which I take into account: the likely effect of any changes in his circumstances; the capacity of each of the parents to provide for the needs of the child. At the moment there must be some issues relating to the extent to which the mother has met his emotional needs in terms of addressing his significant problems at school. Perhaps they have been sidelined. Perhaps there is nothing that could have been done about them. I do not know. Ultimately that is a matter, one would have thought, if this matter continues, that is going to be explored in the evidence.
The other issue that arises in terms of parental capacities is that I do wonder, on the documents, about the nature of the father’s commitment to the importance of the child’s relationship with the mother. As I indicated to Mr Moore who appeared on behalf of the father, during the course of submissions, I was concerned about the way the father went about his response to the child’s decision. I am concerned about it in that there was no consultation with the mother. That in itself raises concerns about whether and to what extent the child’s present decision is a function of him doing either what his father has indicated he wants him to do or what he thinks his father wants him to do, or a combination of both. That is again a matter that is salient.
It is a difficult matter. It is a matter where a number of the considerations in s.60CC come into play. Ultimately what will carry the day in terms of the immediate living arrangements for the child are the child’s age and the expression of his wishes. I am, not without some misgiving, persuaded that, in the immediate future, the child should remain in Canberra attending the school at which he has been enrolled.
I qualify that in a couple of respects. Firstly, I think it is important that we do what is necessary to restore his relationship with his mother and his brothers. The longer that is left un-remedied the more difficult it is going to be.
Even though I am making an order that sees the child remaining with the paternal family pro tem, it should be upon the basis that there are some more or less immediate arrangements made for the child to return to Adelaide, to spend time with his mother and with his brothers, and I would be proposing to make an order which sees that happen this weekend. It will be an order that is made upon the basis of N knowing that he can return to speak with his mother and with his brothers, explain to them his decision, with the security of knowing that the order of the court permits him to return to reside with his father in the immediate future.
By ‘the immediate future’ I am contemplating an adjournment perhaps to the end of term, with the child to spend some time with the mother in the first half of the holidays and then to be spoken to or spoken with or interviewed by Ms S, perhaps during the April school holidays, but with the interview taking place with N being alone and speaking with her by telephone from Adelaide. The function of that of course is to test whether the child is expressing views to Ms S that are a function of who he is with when they are expressed.
The idea of him returning this weekend to spend some time with his family, as I say, with the security he has of knowing that the court has authorised his continued residence with his father, is that there is an early opportunity given there to start speaking again with his mother and with his siblings. It is also, as it were, an important test of the father’s ability, to make sure that when the child is with him and he is exercising parental responsibility for the child, as the mother has heretofore been exercising it, he is capable of giving appropriate direction to the child about such significant matters.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 11 March 2008