Palermo and Ingham (No.2) - [2008] FMCAfam 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PALERMO & INGHAM (No.2)

[2008] FMCAfam 196

FAMILY LAW – Parenting orders – non-compliance by the father of orders made for the child to spend time with his mother to whom he had refused to return – father unable to exercise effective parenting – order that child live with the father varied.

Family Law Act 1975, s.60CC

Applicant:

MS PALERMO

Respondent:

MR INGHAM

File number:

ADC 171 of 2008

Judgment of:

Lindsay FM

Hearing date:

18 February 2008

Date of last submission:

18 February 2008

Delivered at:

Adelaide

Delivered on:

18 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

As and from 26 February 2008, paragraph 1, 2 and 3(b) of the Order of 6 February 2008 will be discharged.
The father do all such things as may be reasonably required to facilitate the child N born in 1991 spending time with the mother between Friday 22 February 2008 and Sunday 24 February 2008 including, but not limited to, purchasing at his own expense return airfares for the said child between Canberra and Adelaide.
Liberty to the respondent father to apply at short notice to discharge paragraph 1 of this Order upon compliance with paragraph 2 hereof.
Liberty to the applicant mother to apply at short notice for a recovery or other orders in the event of non-compliance by the respondent father with paragraph 2 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

This is a matter that was before me on 6 February 2008. It is a matter that was argued at some length then and was the subject of some reasonably extensive reasons I gave.
The proceedings relate to one of the four children of the marriage, a child N, who has just turned 16 years of age. There does not appear to be much dispute about the history of the essential facts relating to the relationship between the parties and their separation. I do not have a precise date of separation in front of me, but we know it was 2004. We know that because in August of 2004 orders were made, I think in the Family Court, regulating the parental responsibility in respect of four children, as it was then, who were living with the mother.
There are consent orders that were made in the Family Court, and the children lived with their mother but were the subject of a contact order. They saw their father whenever he was overnight in Adelaide and for one‑half of school holiday periods, and there was a specific arrangement about the Christmas Day to New Year periods.
The order was fairly imprecise in its terms, and I think that must reflect the fact that, as between themselves, the parties were able to regulate the father spending that time with the children without the need for any more precision, and that appears to be consistent with what has been filed in the documents.
I do not want to rehash everything that I went through on 6 February, but since 2004 essentially the father has continued to exercise that time spent. The child S left the care of the mother, and that is a matter that is addressed in the documents - she is now the age of 20, 21 - but the three boys have remained living with the mother and have continued to exercise time spent with the father.
That all changed in the recent Christmas school holiday period. The father spent time with the three boys but only two of the three boys returned. N did not return. There were arrangements made for N to attend upon a psychologist. That person provided a report, and it is consistent with what the father says. The information provided by the child to the psychologist is consistent with the father’s account that over a period of time the child had been desirous of leaving the care of the mother and coming to live with the father. The focus of the child’s concerns in the report prepared by the psychologist is problems at school. It is not exclusively problems at school but it focuses upon, clearly, some peer problems at school, some academic problems and what he says was his mother’s inability to listen to him.
There are no problems raised, either by the father or by the report writer, in relation to any significant problems in his relationship with his brothers and, to the extent that there are problems with the mother, they are problems essentially relating to what the child reports as being problems of communication with her. The report also says - and this appears to be consistent with the view of each of the parents - that the child is a reasonably timid child.
There were some problems associated with the report of Ms S, in the sense that the process in which the child was taken to her was not one in which the mother had been able to participate. The father said that his participation had been very limited in any event. The order I made saw the child continue to live with the father, to attend school whilst in the father’s care, but also address this issue of his relationship with his mother and his siblings. It provided for the child to return last weekend to spend some time with his family in Adelaide and then again to spend some time during the April school holidays and for Ms S to interview him whilst he was spending time with his family in Adelaide, as distinct from his family in Canberra, in the April school holidays.
The order provided some clarity for the child. It clarified his living arrangements - there was no ambiguity about them - but it also provided an opportunity for an early repair of the relationship between himself and his mother and his siblings, because leaping out of the papers in this case is the possibility that there are problems relating to the extent to which the child is prepared to face his mother and his brothers in relation to the decision he has made.
There might be many reasons for that. That might be a function of his natural timidity. It might be a function of the fact that under the scrutiny of his siblings, in particular, and perhaps to some extent his mother - and by “scrutiny” I do not necessarily mean any active questioning of him by them but face to face with his mother and with his siblings - it might be more difficult for N to sustain an adherence to the grounds that he is promoting as the reasons for the change.
Given his age, given natural and not uncommon problems with adolescence and given his natural timidity, it may be that the problems in this child’s life are problems we only know very little about. It may be there are relationship problems; it may be that the things he has told Ms S about are part of the explanation but not all of it; it may be he sees greener pastures in his father’s household; it may be there are differences in the disciplinary styles in the household and his short‑term assessment of what is better for him is based upon that - a whole raft of issues that are possible - and it may be that it is a mixture of one or the other of them.
It may be that the parents themselves do not fully understand all that is going on, but it is alarming, to say the least, that with the living arrangements for the child clarified - that is, with it put beyond doubt that he is to remain living with his father - he still does not want to face his mother and his brothers. I say that against the background of the limited criticisms of his mother and the absence of criticism of his brothers that is available in all of the material. It suggests to me an apprehension about facing up to his mother and his brothers in respect of the decision he has made, which to some extent is understandable, but, as I say, it is possible it indicates a lack of confidence either in his resolution or a lack of confidence in sustaining the grounds he is promoting for the change.
Part VII of the Family Law Act 1975 (the ‘Act’) gives me jurisdiction to deal with this matter. It tells me that I can make parenting orders, and the whole range of options available under Part VII are available in respect of children, and they are persons who have not attained the age of 18 years. It does not say 17 or 16 or 14 or something else; it says 18. The legislature has made a determination that the Court has jurisdiction to frame orders in relation to parental responsibility for children, and that means persons up to the age of 18 years.
Obviously, the age of a child is a matter that is of critical importance in the weight we give to their wishes. That is the first additional consideration that s.60CC of the Act talks about, and that makes perfect sense; that the older a child gets, taking into account other information that is available in relation to the child’s level of maturity or anything of that nature, the more there is an inevitability about the Court falling in with his or her wishes.
It is on account of his age that, notwithstanding the longstanding arrangements that saw him live with his mother, notwithstanding the unilateralism of his change in the 2007-08 school holiday periods and notwithstanding the fact that it means a rupture in his living with his brothers, nevertheless we gave significant weight to his wishes and we fell in with his request that, pro tem at least, he live with his father.
That is a very significant part of our response to the predicament the child is in, and it seems to me it was perfectly appropriate to do so when we made our orders on 6 February, but it is not the complete picture. This case does not begin and end with the expressed wishes of a 16‑year‑old, who might be under considerable emotional pressure, not necessarily - but possibly - from a parent, but just pressure from the circumstances which he finds himself in. That is the beginning of the matter; it is not the end of the matter.
Ms S herself in her report indicated towards the end of the report that:
In the interests of N’s future wellbeing, his relationship with his Adelaide family members needs to be encouraged and fostered, by whatever means possible, so that he is able to have an uncomplicated relationship with each of his parents.
So there was the mechanism provided in the orders for the child to have the confidence that his wishes were being recognised, but then the immediate arrangements put in place for the child to spend a couple of days with his family in Adelaide and then not to see them again for another couple of months. We find that the order has not been given effect, and we have an affidavit from the father which indicates an incapacity on his part to have the child comply with the orders that were made.
There are some collateral matters that are concerning about the predicament the child finds himself in. There are some ambiguities associated with the provision of the medical certificate. The child’s ill health was promoted as a reason for him not attending on the weekend of the 8th, 9th and 10th. The mother brought her application. It was given a return date of today, to allow to happen what the father suggested should happen, and that is that the child would attend not on that weekend but the following weekend. It did not happen then either, and the father has told us in his affidavit about those circumstances.
So there is an incapacity on the part of the father to get the child to Adelaide, but there is some ambiguity as to whether the child was sick at all. I obviously do not make a finding in that regard. I am sceptical, in the sense that when the matter comes on for trial, if it reaches that stage - and every indication is that it will - I would be looking for some more tangible evidence about the child’s state of health. Certainly it would be a pity if N were to be led to believe that he could disingenuously promote his ill health as a reason for the noncompliance with the order, but that is another matter.
There are some ambiguities associated with the certificates. The one annexed to the affidavit - the one the mother was provided - was for a period of two days only. The affidavit of the father talks about the medical practitioner giving him a certificate for a longer period, but that may have been the previous week.
In any event, that is one concern, and a minor concern. More significantly, the child is not at school. So this is a radical change in his living arrangements, accompanied by another radical change: he is not at school. He was working during the school holiday period in Canberra. I do not think there is any evidence as to whether he is still working, but it remains a possibility.
I am only dealing with this matter at the interlocutory stage. I am assisted by the affidavits and the very helpful submissions of each of the counsel, but the picture that is being presented - the little bits and pieces I am getting from the parties, from Ms S and from what we know of the child’s circumstances - is of a child going through somewhat of a crisis, which at the moment is expressing itself in a desire to live with one parent after having lived with another parent in the period since separation but is now expressing itself, on the material available to me, objectively speaking, in a quite unjustified unwillingness on his part to come face to face with his mother and his brothers.
I say “objectively” because, from N’s point of view, subjectively speaking, there might be a whole raft of reasons he does not want to do that, but whether they are matters that properly reflect his best interests is very much the question. They may be. They may have nothing to do with his best interests, objectively determined. They may simply be catering for his short‑term responses to stressors in his life. We simply do not know these things.
N’s best interests are my paramount consideration. That is the statutory direction. Section 60CC tells me, firstly, what the primary considerations are in determining what is in his best interests, and the first thing the act mentions in that regard is the need for a child - and that includes N - to have a meaningful relationship with both of his parents.
The obvious concern that leaps out of the papers in this case is that, given the uncertainties associated with why N is making his decision, it may be that the easy option for him will be to have no relationship with his mother or his siblings. That is not to suggest, as I think the mother is promoting at the moment - but I am a long way from being able to make this finding - that he is doing it because his father has asked him to do it. It might mean he is doing it because he thinks his father would be pleased about it, but I do not have any evidence of that. More likely is that he is doing it as the easiest way out of a difficult situation. Well, the Court is not going to give its imprimatur to that. The Court would be failing in its duty, prescribed by the legislation, if it simply gave its imprimatur to the reflexive, emotional responses of a child who finds himself in somewhat of a crisis.
The problem we have is that, having fallen in with the child’s wishes - having given that pre‑eminence in the orders we have framed - we find now that doing that has had this result: that it has given rise to the very real possibility that the child will not have a meaningful relationship at all with one of his parents and, moreover, that he will not have a meaningful, or any, relationship at all with his siblings. That is the unenviable position the Court has been placed in, and the question of his relationship with his siblings is obviously one of the many relationships and one of the many changes to the child’s circumstances that are picked up in the additional considerations that s.60CC talks about.
Whereas N’s wishes were predominant and almost determinative of the application when it was before me on 6 February, provided the child was not reacting or behaving in response to inappropriate stressors or inappropriate thinking on his own part or responses on his own part, we had no reason to believe that he would not continue to have at least some form of contact with his mother and brothers.
We now know that that is not possible. It is not possible because, firstly, he has made his choice in these circumstances and it is not possible because the father does not have the capacity to do anything about it. That is an observation; that is not a criticism of the father necessarily. It is only when all the evidence is in that we will know whether the father can properly be the subject of criticism for that, but the fact of the matter is that he has not had the resources or the influence or the strategies available to him to make N see what is self‑evidently in his best interests, and that is that he had the opportunity to completely deflate all of the pressures associated with the situation in the short term just by visiting his family for a weekend.
The father would have seen that. Everyone who looks at the matter objectively can see that, but N cannot see it. The father, perhaps because of his long absence as the principal person exercising parental responsibility - perhaps for other reasons we do not know anything about - for whatever reason, the father has an incapacity to do that, and that raises the question, of course: if he lacks the capacity to be persuasive in relation to this critical aspect of the child’s welfare, what capacities does he have to guide the child in respect of other matters that are significant?
Obviously at the moment a big matter for N is his attendance at school. If N does not attend school, will his father’s attitude be to metaphorically hold his hands in the air and say, “What am I to do; throw him over my shoulder and take him?” That is just not an adequate response. It is not adequate for N’s best interests at this critical time of his life.
It is a difficult matter. The Court obviously would prefer to make orders that are consonant with the wishes being expressed by a child, but we have gone down that path and it leads ineluctably to a situation where all the information available to the Court is that, for reasons that are very murky at the moment, the child is going to be deprived of a relationship with both parents.
That was not the case when he was with his mother. We know that from the documents; that whatever the unsatisfactory aspects of that relationship - and Ms S has told us something about those, according to the information provided to her by N; there had been some problems, some big problems at school especially - there was not a problem about the child having a relationship with both parents. That happened, according to the documents that have been filed, without there even being an order that dealt with it with any particularity. That happened on a regular basis.
I should restate a matter that I raised this morning, and it is probably worth restating. This area of jurisprudence - the Family Law Act - is the subject of a lot of misinformation in various parts of the community. I am not suggesting it is the case with either of the parties here, but it may be that there are certain expectations out there that the Court does not take its obligations to enforce its orders seriously. If that has been the case with other courts exercising jurisdiction under the Act, it is not the case with the court of which I am a member.
The Court takes very seriously its responsibilities to ensure that its orders are given full recognition. It does its best to listen carefully to everything that is put, especially in these very difficult circumstances that present themselves to us here. We listen, we do our best to apply the legislative provisions, we do our best to weigh the competing factors, but ultimately when the decision is made, then it becomes a matter of compliance. There are significant tools available to ensure compliance with the orders of the Court, and the full panoply of remedies are available in respect of children up to the age of 18 years.

As I say, having weighed all of those matters very carefully, the order that needs to be made, in my view, is an order that revisits the arrangements we considered appropriate on 6 February. It is no longer, in my view, possible for the Court to frame orders which are predicated upon recognising N’s preferences, because we have seen what the consequence of that has been and it has vitiated any confidence we can have at the moment in the child’s ability to determine subjectively what is in his best interests.
What I propose to do is to make an order that provides for the discharge of the living arrangements orders I made on 6 February but to not do so until a time which would be sometime towards the early part or the middle of next week. I want to give a final opportunity to the father to do what he can to have the child attend upon the mother for the purposes of a weekend. It is an order that will be identical in its terms to the orders I made on 6 February, but the difference will be that it will be self‑executing. In the event that such an order is not given compliance, the residential arrangements will be, by force of the order, reversed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 11 March 2008