Preston and McPHERSON

FAMILY COURT OF AUSTRALIA

PRESTON & MCPHERSON

[2010] FamCA 255

FAMILY LAW – CHILDREN – With whom a child lives – Child's views

Family Law Act 1975 (Cth)

APPLICANT:

Mr Preston

RESPONDENT:

Ms McPherson

FILE NUMBER:

MLC

3614

2009

DATE DELIVERED:

29 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

15 February 2010, 9-11 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Mahloko-Boardmans

SOLICITOR FOR THE RESPONDENT:

Mahloko-Boardmans Solicitors

Orders

That all previous parenting orders in relation to the child A born … July 1994 (“the child”) are hereby discharged.
That the child shall live with the wife.
That the husband and wife shall share equal parental responsibility for the long-term decisions affecting the child, save that the wife shall forthwith arrange for the child’s enrolment at B Secondary College and shall retain the sole responsibility for the choice of her schooling.
That the wife shall have sole parental responsibility for the day-to-day decisions affecting the child.
That the child shall spend time with and communicate with the husband at times as agreed between the husband and the child.
That the wife shall forthwith authorise any school attended by the child to provide the husband with copies of school reports, newsletters, school photograph order forms and all other correspondence normally provided by the school to parents.
That the husband shall be entitled to attend any school events for the child, to which parents are normally entitled to attend.
That the wife shall inform the husband of any serious illness or injury to the child within twelve hours of same.
That the parties shall keep each other informed of any change of address or phone number within 24 hours of such change.
That the appointment of the Independent Children’s Lawyer is hereby discharged, all outstanding applications are dismissed, and the case removed from the list of cases awaiting finalisation in the Court.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3614 of 2009

MR PRESTON

Applicant

And

MS MCPHERSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

A is aged 15 years and 8 months’. Her parents separated in 1996, more than 13 years’ ago. At first she and her brother T (now aged 17½, but not subject to these proceedings) lived with their mother. There were on-going serious concerns about the mother’s mental health and drug and alcohol abuse, so that the children spent some time with their father in 1997 and 1998. They returned to live with their mother from mid-1999 in accordance with an order of this Court, until a Supervision Order in the Children's Court in late 1999 saw the children placed in their father’s care.
In November 2001, final consent orders were made in this Court for the children to live with their father, and to have contact with their mother. They saw her regularly until early 2008. T has spent almost no time with her since then. A was also not seeing her, until she ran away from her father to stay with her mother in April 2009.
In July 2009 the Court made interim orders for A to return to live with her father and to spend time with her mother. Despite those orders, since September 2009, A has lived with her mother and has not seen her father.
A is adamant that she wants to stay with her mother and not see her father. The father is adamant that A is at risk in her mother’s care.
The Family Report writer has recommended that A be permitted to stay with her mother. In reaching that recommendation, Ms H acknowledged the past concerns with the mother’s parenting skills, but recommended that it was an arrangement that presented less risk to this girl of nearly 16 who is likely to put herself at greater risk if her wishes are not given strong credence at this point. That is not only because she will run away, but also for other pressing psychological reasons, to which I shall return. The Independent Children’s Lawyer supports the recommendation in the Family Report.
A decision is urgently needed. A is presently commuting 2 to 2½ hours’ each way to the school she was attending in her father’s care. She needs a settled residence so she can attend a school close to wherever she lives. She also needs the certainty and stability of a decision. Otherwise, the risks to A of self-harm, self-destructive behaviour, and psychological difficulties are high.

BACKGROUND

The father is a 50-year-old storeman. The mother is aged 42. She is a disability pensioner.
The parties married in 1991 and separated on 7 September 1996. A was born in July 1994. Her older brother T was born in October 1992.
The mother has a 6-year-old daughter G from a later relationship. G lives with her and has started primary school this year.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The father relied upon the following material:
·His Initiating Application filed 19 January 2010
·His affidavit filed 15 February 2010
·His affidavit filed 10 June 2009
·His Parenting Questionnaire filed 5 February 2010.
The mother relied upon the following material:
·Her Response to Initiating Application filed 27 January 2010
·Her affidavit filed 15 February 2010
·Her affidavit filed 29 June 2009
·Her Parenting Questionnaire filed 27 January 2010
·Affidavit of Ms R filed 24 February 2010.
The ICL relied upon the following material:
·The Outline of Case
·Family Report prepared by Ms H dated 1 March 2010
·Children’s & Parents’ Issues Assessment prepared by Ms H dated 10 June 2009
·Affidavit of Ms L psychologist sworn 26 February 2010 filed 3 March 2010
The father represented himself. The mother was represented by her solicitor, and the ICL was represented by counsel. At the start of the case I made sure that the father received a copy of the most pertinent parts of Part VII of the Family Law Act, and I directed him in particular to the s 60CC best interests considerations.
Helpfully, counsel for the ICL agreed to cross-examine witnesses ahead of the father, so that the father would have the benefit of having some areas already covered, and the benefit of some insight as to how to frame his questions.
All witnesses were required for cross-examination.
The father sought orders for A to return to live with him and to spend time with her mother. The mother sought the opposite. The ICL supported the mother’s proposal that A should continue to live with her and see her father only at her own request.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
The Court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests. That is not sought by any party in this case. The Court must then consider whether the child spending substantial and significant time with each parent would be in her best interests.

THE ISSUES

It is convenient to analyse the issues within the framework of the s 60CC considerations, starting with the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
A has been the focus of litigation and DHS investigation (apparently the DHS file is 3,000 pages long) for almost her entire life. The benefit of a meaningful relationship with both her parents is something that has often eluded her. At various stages she has had a very poor, or almost non-existent relationship with her mother. Currently she has a very poor and, except for some on-line exchanges, a non-existent relationship with her father.
It is obvious that an overlay to the chaos of her childhood experiences has been her parents’ incapacity to co-operate or communicate with each other. And it is not hard to see that it is now taking its toll on A, her relationships, and her emotional well-being.
A meaningful relationship with both of her parents is important, and hopefully something that A will be able to enjoy in the future. In the short to medium term, the evidence suggests that the priority must be her own emotional stability and safety.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The father’s concerns about the mother are well-founded. Against the backdrop of her own learning difficulties, cognitive limitations, childhood trauma, and depression, the mother has in the past made a number of suicide attempts, has abused alcohol and drugs, and has had issues with managing anger.
Many of those matters are historical, occurring more than 10 years’ ago, before the Children's Court Supervision Order. However it seems that there was a suicide attempt in 2004, and more recently two incidents in the first part of 2008.
In January 2008, A and her mother had a substantial argument. Although there was disagreement as to what led to the argument, it is common ground that it occurred, and that A ran away from her mother. It is also common ground that the police were called. The father said it was because A rang him distressed. The mother said it was unnecessary. I cannot make definitive findings, but clearly the mother could not manage or contain A on that occasion.
In May 2008, the mother drank to excess and took Panadol Forte, saying it was “like a cry for help”, as she felt very upset about these court proceedings. She was in or at hospital for only six hours. She said it was “a very stupid mistake”. It was still a cause for concern, given her history.
The father emphasises that until last year, he had cared for and raised A and T single-handedly for well over ten years. He emphasises too that he did so without financial support from the mother, and while he was trying to work to provide financial security and a home for the children. There is no question that credit is due to him for those years of parenting and the stability he provided for the children.
At this stage in her life however, A has particular needs. She is expressing those needs very strongly. She does not feel those needs are being met in her father’s home.
This case is largely about risk assessment. On the one hand, there are the historical concerns in the mother’s parenting, and what the father would perceive as her permissiveness and lack of discipline for A (including substantial school absences). On the other hand, there are the risks of ignoring A’s views, when she cogently argues to stay with her mother, she is at a vulnerable age and stage, and she has already experimented with self-harm, self-destructive behaviour, and running away.
It is important to assess those various risks in light of the 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;
A has expressed the strong desire to stay with her mother, a refusal to return to her father, and at this stage a refusal to see him.
The father’s account is that she was perfectly happy living with him, and was only prompted to run away in April 2009 because he had been cross with her about stealing money from a spare coins box in his room, and for leaving soiled sanitary napkins around the house. His perspective is that until then, there were no substantial difficulties between them. He believes she has only chosen to live with her mother because her mother has a permissive attitude to discipline, whereas he was taking a responsible stance when it came to issues of honesty, hygiene, school attendance, and her internet and face-to-face contact with an older boy of 22.
The father is aggrieved that when A ran to her mother’s home, rather than her mother simply returning her to him to work out their differences, she kept the child and influenced her against him.
First, as to the issue of influence, it is hard not to conclude that each of A’s parents has influenced her against the other. That is the story of her young life. The history shows it. A herself reports it. The Family Report writer concludes it.
I had the “advantage” of watching the mother being cross-examined directly by the father. Even taking into account the inherent difficulties in that situation, I was struck by the very obvious dislike they hold for each other, the palpable lack of respect between them, and their incapacity to communicate in a civilised way. From time to time the cross-examination spiralled into a scrappy argument that was a discredit to both of them.
A graphic illustration of the depth of the parents’ mutual ill-feeling is that at different times each parent has told A, apparently without any foundation, that she was sexually abused by the other parent. In the case of the father, he did so in a recent “Facebook” exchange. She said it was public. He said it was private. Even if it were private, the father did not show any real appreciation as why it would be detrimental to his already fragile relationship with his daughter. He attempted to justify it on the basis that the mother had made that allegation in the Children's Court against him in the past.
Equally lacking in insight, the mother showed no appreciation as to why she might have sent A back to sort out the difficulties with her father, making it clear that he had never shown her such courtesies in the past. The “tit-for-tat” attitude of the parents is the world that poor A has inhabited for many years.
Each parent has a low opinion of the other parent, and A has felt caught in the middle, unable to say anything positive to one parent about the other. She has been aware of the court battles, and as recently as 15 February 2010, it seems that her mother spoke to her about what was said in court that day. Her mother denies it, but communication from A to her father refers to it. Only her mother or someone in her mother’s camp could have told A about the proceedings that day. Equally, A complained to Ms H that on another occasion her paternal grandmother had “confronted her” about the contents of statements in court documents, and A felt “blamed, uncomfortable and unsupported” by her father who sat by and watched.
A has obviously been used by both parents as a weapon in the war between them, and she has felt the pressures of their influence and their conflict. Amidst the disruption and chaos of her childhood, that on-going battle between her parents, their incapacity to spare her from it, there is A’s plea to have her voice heard.
I understand the father’s perspective, that her 15-year-old views cannot necessarily be determinative of the matter. I understand too that he sees things through the prism of his genuine disappointment over the current breakdown in his relationship with his daughter. However, A’s views cannot simply be dismissed as the wishes of a girl who wants to live with the less-strict of her two parents, as he would say.
Ms H, who has seen A on three occasions, described her as comfortable in a one-to-one setting and skilled at talking to professionals about her family life. She also described her as a likeable, but sad and vulnerable young girl, who fortunately has some inner strength and the capacity for reflection and insight into her current emotional needs upon which she is trying to build. That view is supported by Ms L, A’s counsellor. Ms L has met with A five times.
In May 2009 A had expressed concern about week-end time she had recently spent with her father and brother. She felt distanced from her brother, whom she felt was aligning himself with their father. She said she had remained in her room after what she described as her father “yelling” at her about why she had moved to her mother’s, and she had phoned the police who had attended and discussed the conflict with them. Things then settled between them, but there was obviously concern remaining about the events of that week-end both by A and her father.
When Ms H saw A on 9 June 2009, A’s thoughts and feelings had not altered since the May interview. She was clear that she “wanted to be heard” by her parents, and by the Court, and that she wished for an end to the on-going disputes. She complained that she was placed at the centre of the conflict and felt responsible for the adult feelings arising from the dispute.
Poignantly, when A later spoke with Ms H in February 2010, she pointed to the box-file sitting in the Family Consultant’s room and stated, “There’s my life” and then said, “I’m so sick of this. Every time I come here nothing changes, it’s always the same.”
A feels “punished” by her father for moving. Ms H reported that after A told her about her paternal grandmother confronting her in relation to court documents:
…She felt this example underscored her point that her father is trying to punish her for moving to her mother’s. [A] understood her mother’s resistance to communicating with her father as more aligned with her own feelings of being rejected and blamed as [A] understands that her father thinks her mother is unprotective and a danger to her. [A] disagrees and is enjoying the more relaxed style of parenting offered by her mother. [A] conveyed this information in an organised and thoughtful manner, often checking with the family consultant for validation of her thoughts and feelings.

A described her past six months living with her mother in generally positive terms. She said she felt more “relaxed and content” in her living arrangements. She felt very strongly opposed to spending between four and five hours’ a day travelling to K Secondary College, but said that she had been doing it to comply with court orders, so she could continue to live with her mother.
During the February 2010 interview, A said she occasionally communicated with her father on Facebook but was “shocked” to read that he had recently posted a note about her being abused by her mother. She felt “embarrassed and distressed” by that communication in what she described as “a public” domain. She described her confusion about her father wanting her to live with him, when he had come to the mother’s home during last September holidays and “dropped all my things off”.
Although A declined the Family Consultant’s offer for her to meet with and be observed with her father, Ms H said:
…This was not communicated in a strident, adolescent style, rather a simple comment that ‘it wouldn’t help yet’.
In the recent Family Report, Ms H described A (at paragraph 26) as:
… able to give many different personal examples to illustrate her views, and over influence and/or an unhealthy alignment with her mother’s views [sic] not detected. [A] presents with both vulnerabilities and strengths, has a balanced view of her parents and communicates in a way that does not apportion blame but reflects a disappointment and sadness.
A told Ms H that she was enjoying seeing her counsellor, and at the time she was referred to her she “wasn’t coping and getting angry all the time”. She told Ms H that she had “attempted to cut herself” around the time of most recently moving to her mother’s, but added that she did not have those feelings any more because she was able to talk about “stuff” with her counsellor.
In her reports and her oral evidence, Ms H emphasised that factors contributing to A’s views are her age and stage of development, and her need to explore a different living arrangement “which reflects a need to begin individuating from her family of origin.” Ms H noted it as an “important transitional development stage” for A. She also observed that gravitating toward a same-sex parent during adolescence is not uncommon, and that A’s relationship with her father and brother is unlikely to improve with on-going conflict.
Ms H undertook a helpful assessment of the risks to A in both households. I shall return to that part of her evaluation below. She concluded though that it is “important” that at this stage A’s views are generally supported by the Court. It is important for A to have a sense of some control over her future, as she is in the early stages of taking responsibility for resolving the conflict, and making decisions and choices which result in the meeting of some of her own needs.
In her oral evidence, Ms H emphasised the need to listen to A’s views. She argued cogently that A’s mental health depends on it. She is discovering that as she cannot rely on her mother and father to change things, she needs to change things herself. She was not being silly, or exclusively negative about her father, in the way that an adolescent who is strongly aligned to one parent might be. She could acknowledge positive things about him. However if she is forced to return to live with her father, A will, as she says, run away, and thus put herself in the face of further risks.
Ms L’s evidence, as A’s counsellor, supports that.
Ms L reported that A does not suffer any psychological illness. However she openly discusses her experience of a range of negative emotions indicating she is distressed by her involvement in the custody process. Ms L reported that the emotions include “feeling let down, hurt, sad, stressed, worried, and lonely.” She reported further:
Whilst she seems to fight very hard to maintain a good sense of self and self-esteem and can confidently state she is a good person, [A] admits at time she believes she is not as important as others, feeling unloved, unsupported and uncared-for.
Ms L reported that it has been concerning to learn from A that she has learnt not to speak out about how she is really feeling ,“as she believes that no-one really listens anyway so there is no point.” She reported feeling most hurt that she had not been heard. In Ms L’s professional opinion, that possibly explained A’s inability to appropriately deal with distressing emotions. A admitted using anger as a way of outwardly expressing other unrelated distressing emotions that she has been unable to express in a more effective way.
(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);
(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:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have partly covered these considerations in my analysis of the weight to be attached to A’s views.
In what was a well-balanced and helpful report, addressing the complexities and the nuances in this case, Ms H did not dismiss the potential risks to A in staying with her mother.
There is no question that the mother has had a long-standing battle with mental illness and alcohol and drug abuse. In the past, her parenting skills have been limited, and the children have been exposed to her anger. The father has been genuinely concerned for the children. It is hard for the father to fully accept that there are no longer risks to A in her mother’s care, or that any risks are now substantially lower.
Although the mother claims to be stable and well, no longer abusing alcohol or drugs, and well supported in the community, the father has heard such claims in the past, but she has relapsed. Moreover, there were the incidents in both January and May 2008, referred to above. What he is hearing from DHS and the expert Family Report is that A should live with her mother “until something happens again”.
The father points to a particularly graphic recent parenting failure on the part of the mother. A missed 55 days of school in 2009. That is very worrying indeed. However, the context is important.
First, it seems there were difficulties with A wagging school from her father’s home, even before she went to live with her mother. Secondly, in fairness to the mother, when A first came to stay, she did enrol her in a local program for children who were at risk of not attending school. That program ran for six weeks. I accept the mother’s evidence about that, although there was a reference to four weeks in one document. Six weeks accounts for 30 school days, otherwise recorded by K School as absences, leaving in reality a balance of 22 days’ unexplained absences from school.
Twenty-two days’ away from school is still too many. However, I take into account that since A went to live with her mother in September 2009, she has been required by Court order to continue attending her existing school in K, more than two hours’ travel time from her mother’s home. To add between four and five hours’ travel each day, for a child who had at times been a reluctant starter in any event, has been extraordinarily onerous for her. Ms H emphasised that it was telling that A’s school attendance has been good in the last several months, and that A said she was making the long and arduous journey in an effort to persuade the Court that she should stay with her mother. That is how strongly she feels about staying.
I do not conclude that in her mother’s household A will simply not make it to school. If she is to reside with her, the mother has already made enquiries and arrangements for her to be able to start at B Secondary School, near to her home. A is enthusiastic about that, and spoke sensibly with Ms H of her realisation that her schooling was important to her.
Otherwise, although there have been many limitations in the mother’s capacity to parent the children, A is currently craving and enjoying the exploration of the relationship with her mother. She is finding her nurturing, and enjoying the opportunity to be with her. Importantly, the experts have emphasised that A is now old enough to act protectively, by way of self-help, if any issues arise in her mother’s home.
The father has devoted many years to raising the children. He loves them and is sincere in his concerns. He is perplexed by the turn of events whereby A moved away from his care, and has refused to see him. Ms H’s observations as to his inflexibility and incapacity to understand A’s perspective is valid. He clings to the oversimplification that a small argument caused her to run away to her mother’s, and that since then her mother has manipulated her against him.
He is finding it hard to understand that A is grappling with a mixture of emotions, including her frustration with the on-going conflict between her parents, her desire to simply explore her relationship with her mother, and her need to explore how she feels and be able to express it and be heard. In this respect, she says that she has been unhappy at her father’s home for quite some time. The father says that he has not seen that. The two accounts are not necessarily inconsistent. A may well have felt that she could not express herself, or she may not have known how to change the situation until she was a little older. Ms H sees A as having taken a significant step when she left her father’s home. She must have known he would be very disappointed in her, but she pursued what was for her a pressing need.
The father does lack some insight as to how his behaviour affects A. For example, he said that he willingly allowed her to stay with her mother in the second week of the September 2009 holidays, even though she was due to return to him after the first week. At the end of the second week, he delivered most of her clothes and belongings to her mother’s home. He said it was just to ensure she “had what she needed”. I do not believe he was being forthright with himself or the Court with that description. Rather than simply ensuring she had her clothes, as he put it, he was clearly drawing a line in the sand and making a statement to A that she was no longer welcome at his home. She perceived it in that punitive way, when the majority of her possessions, including her TV, her dog, and even a cup bearing her name, were delivered by him, unsolicited, to her mother’s home. She has since found it even more bewildering and frustrating that despite that, this case has continued.
(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;
I have already dealt with this aspect. I am satisfied that neither parent has shown a willingness or ability to facilitate A’s relationship with the other parent. Although for many years while she lived with her father she did see her mother, the conflict and dislike between her parents was such that A herself perceived the extent of the conflict, and that she was caught in the middle. For the last 15 months’ that she lived with her father, A had nothing to do with her mother. Since living with her mother, she has had nothing to do with her father. Each parent blames the other. Neither is blameless.
The parents are not going to change. Given her age and stage, it is A who is going to make the decisions about her relationship with each parent. Ms H emphasised that she must be supported in that quest.
(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;
The evidence is that if A is forced to return to live with her father she will run away. Ms H believes she will do so.
If she stays with her mother, she will presently have nothing to do with her father. Ms L is prepared to involve the father in counselling with A, if and when she believes it is appropriate for A’s well-being. Ms H is of the view that the real opportunity for the relationship to be mended between father and daughter is if A has some space from her father for now.
A is currently separated from her brother T. They presently see each other at school. If she changes to B Secondary School that will no longer be possible. Ms H noted that they seemed to have had a close childhood relationship although A now talks with some negativity about T, which is not unusual between siblings of these ages. In any event, they communicate via MSN or Facebook. They are old enough to arrange to see each other.
In the mother’s household, there is 6-year-old G, A’s little half-sister. Ms H noted a good interaction between A and G.
(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 major practical difficulty in this case has been for A travelling a very long distance to school. The practical difficulty and expense of seeing whichever parent she does not live with is not an insurmountable obstacle in this case.
(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;
The father complained that a suggestion of A needing some time with her same-sex parent was “anti-discriminatory”. I do not agree. It is a reference to her psychological needs, and is only one of many considerations. It is not envisaged that a female child must always live with her mother any more than a male child must always live with his father. It is simply that I am bound to take into account A’s particular needs at this stage in her life and they include a desire to be around, and to identify with her female parent.
(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 is not relevant in this case.
(j)any family violence involving the child or a member of the child’s family;
(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;
Insofar as these considerations are relevant, they have been dealt with above.
(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;
A is pleading for an end to the litigation about her. I agree with Ms H’s concern that if she is forced to return to her father, she is unlikely to be compliant, and the prospect of more litigation is therefore more likely than if she is living with her mother.

CONCLUSION

Each party agreed to an order that the parents would share equal parental responsibility for the long-term decisions affecting A, but that wherever she lives as a result of these orders, that parent shall have the sole responsibility for her schooling.
The parents see things very much from their own perspectives. They each blame the other. They each believe that they are the one who can offer A what she needs and that they can protect and nurture her best.
I am presented with imperfect alternatives. If I determine that A should live with her mother, she will be living with a parent who has had a great many difficulties in the past, who has parented poorly at times, and has exposed A to risk in her care.
If I determine that A should live with her father, it will be contrary to her strong, consistent, and considered views, and will put her in a situation where she feels her current needs are not being met. Moreover, there is every reason to believe that she will not stay in his house, and will run away, putting herself at further risk.
I must do the best that I can do with the imperfect proposals that are offered. And the best I can do is to listen to A as she is urging, and follow the Family Report writer’s recommendation to support A in the changes she is trying to make and the steps she is trying to take to effect the control over her life that she feels she has not achieved through her parents.
I am particularly conscious of the risks and dangers for A in terms of her own mental health. In the course of the evidence I have heard references to her having a relatively recent pregnancy scare, a relatively recent Children's Court appearance, some attempts at self-harm (cutting herself), and other risk-taking behaviour. I did not hear the detail but it was evident that there had been concerns for her welfare. It is her mental health and life decisions that are on the line.
I propose following the ICL’s proposals and the recommendations of the Family Report writer to do what can now be done to support A’s advances towards better mental health, by having her live with her mother as she requests.
She can see her father at times agreed between her and him. They do communicate electronically. She has her counsellor who can assist her in any reunion with her father. A is old enough to be able to arrange that. She is also old enough to be able to withstand any concerns at her mother’s home. Fortunately, in the course of this case, the father did say his door was always open and it will be important for A to know that.
As well as being disappointed with A’s choice, the father is incensed by the likely child support demands to be made by the Child Support Agency, when he still has one child to support, and he has never received substantial child support from the mother. I explained to him that he must take up those issues with the Child Support Agency.
He is also angry with the family law system. His view is understandable when, for example, in the past he was unsuccessful in persuading this Court that the children were at risk with their mother, when only months’ later, the Children's Court ordered that the children live with him under a Supervision Order. That said, if he sees blame for the family’s difficulties as lying only with the “system”, there will be a missed opportunity for him to reflect on what more he can do to enhance his relationship with his daughter. The mother too needs to take her own responsibility to help A in her journey. Despite any personal shortcomings, both have important things to offer A and to help support her needs.

THE ORDERS

The orders that I propose are as follows:
1.That all previous parenting orders in relation to the child A born … July 1994 (“the child”) are hereby discharged.
2.That the child shall live with the wife.
3.That the husband and wife shall share equal parental responsibility for the long-term decisions affecting the child, save that the wife shall forthwith arrange for the child’s enrolment at B Secondary College and shall retain the sole responsibility for the choice of her schooling.
4.That the wife shall have sole parental responsibility for the day-to-day decisions affecting the child.
5.That the child shall spend time with and communicate with the husband at times as agreed between the husband and the child.
6.That the wife shall forthwith authorise any school attended by the child to provide the husband with copies of school reports, newsletters, school photograph order forms and all other correspondence normally provided by the school to parents.
7.That the husband shall be entitled to attend any school events for the child, to which parents are normally entitled to attend.
8.That the wife shall inform the husband of any serious illness or injury to the child within twelve hours of same.
9.That the parties shall keep each other informed of any change of address or phone number within 24 hours of such change.
10.That the appointment of the Independent Children’s Lawyer is hereby discharged, all outstanding applications are dismissed, and the case removed from the list of cases awaiting finalisation in the Court.
11.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 29 March 2010

[2010] FamCA 255

29 March 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies