R and M
[2001] FMCAfam 228
•9 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & M | [2001] FMCA fam 228 |
| FAMILY LAW – CHILDREN – Child's wishes – Separation of siblings – Long standing status quo – change in residence ordered – Importance of finality to the parenting issue – s68F(2)(a) Family Law Act 1975. |
| Applicant: | E J R |
| Respondent: | C M |
| File No: | ZP 242 of 2000 |
| Delivered on: | 9 November 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 23 & 24 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Shaw |
| Solicitors for the Applicant: | Margiotta Solicitors DX 8909 Cabramatta |
| Solicitor Advocate for the Respondent: | Ms Lansley Lansley Lawyers, DX 4963 Bowral |
| Solicitor Advocate Child Representative: | Mr Dunkley McPhee Kelshaw Solicitors |
ORDERS
That Orders 2 – 7 (inclusive) made on 11 October 2000 be discharged.
That the child J D R born 28 July 1990 live with E J R (“the father”).
That orders 1 and 2 become operative from the first Friday after the finish of the current school term. The father is to collect the child at noon on the following day pursuant to order 2 of these orders.
That C M (“the mother”) have contact with the child as follows:
(a)From 5.00pm Friday to 5.00pm Sunday each alternate weekend.
(b)On J’s birthday:
(i)For two hours if the birthday falls on a school day provided she is returned to the father at his home no later than 8.00pm;
(ii)From 3.30pm until 8.00pm if the birthday falls on the weekend or public holiday which is not otherwise a contact weekend.
That the contact provided for an Order 4 hereof shall be suspended for each school holiday period and for the weekend that includes Father’s Day.
That the mother shall have contact with the child for half of each school holiday period, commencing on the day after the last school day, and concluding at 7.00 pm on the mid-point day in years ending in an even number or zero, and from 9.30 am on the mid-point day of each school holiday period until 7.00 pm on the last school holiday day in years ending in an odd number.
That the mother shall have contact with the child from 6.00 pm on the Saturday before Mother’s Day to 7.00 pm Mother’s Day.
That the mother shall have telephone contact with the child not less than one day per week and failing agreement as to the day and time, then at 7.00 pm on each Wednesday.
That for the purpose of contact, the father shall deliver the child to the mother’s residence at Moss Vale and collect the child from the mother’s residence at the conclusion of contact, or such other residence as the mother shall occupy, provided the mother’s residence is no further from the father’s residence than Moss Vale in distance.
That the child shall spend the weekend of Father’s Day with the father provided that if Father’s day falls on a scheduled contact weekend, then J shall spend the following weekend with the mother in substitution.
If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
That when delivering the child for contact, the father shall not enter the grounds of the mother’s property and shall indicate his arrival by either arranging for another person to take the child in or by tooting the car horn.
THAT pursuant to Section 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.
The party who caused any subpoena to issue shall return the subpoenaed documents within 7 days.
All exhibits to be collected at the expiration of 28 days.
All outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 242 of 2000
| E J R |
Applicant
And
| C M |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings comprise an application for residence and contact orders concerning the parties’ daughter J D R born 28 July 1990.
The applications
E J R (“the father”) commenced an application for parenting orders on 29 January 2001. He sought the following orders:
(1)That the orders made by the court in relation to the child J D R born 28 July 1990 (“the child”) be vacated and that there be substituted for those orders, orders in or to the following effect:
i)That the child live with the father E J R;
ii)That the father be responsible for the day-to-day care, welfare and development of the child when the child is in the father’s care;
iii)That the father be solely responsible for the long-term care, welfare and development of the child;
iv)That the respondent mother have contact with the child as agreed between the parties, but failing agreement at such times and places as may be determined by the court;
v)That in addition to any contact otherwise agreed upon between the parties or determined by the court, the mother have reasonable telephone contact with the child and in this regard the father do all things to facilitate regular telephone communication between the child, her mother and her brothers if they are residing with the mother on those particular occasions;
vi)That each of the parties be entitled to obtain directly from any school attended by any of the children of the relationship or from any health or welfare professional, or other professional attended by any of the said children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed;
vii)That each party advises the other no later than 28 days of any plans to remove the children from the State of New South Wales.
C M (“the mother”) filed her response on 7 March 2001. She sought orders that the father’s application be dismissed and that he pay her costs of the proceedings. At the conclusion of the proceedings the mother’s advocate indicated that in the event the father obtained a residence order, the mother sought contact orders that replicated those made on 11 October 2000 in his favour.
The child’s representative tendered a Minute of Order at the conclusion of the proceedings that he asked the court make. The orders proposed by him are:
(1)That Orders 2 – 7 (inclusive) made on 11 October 2000 be discharged;
(2)That the child J D R born 28 July 1990 live with E J R (“the father”);
(3)That C M (“the mother”) have contact with the child as agreed in consultation with the father, and failing agreement, then:
(a)For the first three weekends of each calendar month during that period October to March (inclusive), in each year, from 6.00 pm Saturday to 7.00 pm Sunday;
(b)For the second and fourth weekend of each calendar month during the period April to September (inclusive) in each year, from the conclusion of her brother’s soccer matches on Saturday to 7.00 pm Sunday and if there is no soccer match on a Saturday, then contact shall commence on that day at 9.30 am.
(4)That the contact provided for an Order 3 hereof shall be suspended for each school holiday period and for the weekend that includes Father’s Day.
(5)That the mother shall have contact with the child for half of each school holiday period, commencing on the day after the last school day, and concluding at 7.00 pm on the mid-point day in years ending in an even number or zero, and from 9.30 am on the mid-point day of each school holiday period until 7.00 pm on the last school holiday day in years ending in an odd number.
(6)That the mother shall have contact with the child from 6.00 pm on the Saturday before Mother’s Day to 7.00 pm Mother’s Day.
(7)That the mother shall have telephone contact with the child not less than one day per week and failing agreement as to the day and time, then at 7.00 pm on each Wednesday.
(8)That for the purpose of contact, the father shall deliver the child to the mother’s residence at Moss Vale and collect the child from the mother’s residence at the conclusion of contact, or such other residence as the mother shall occupy, provided the mother’s residence is no further from the father’s residence than Moss Vale in distance.
Background facts
The applicant father was born on 23 August 1958. He is 43 years old. The respondent mother was born on 4 May 1959 and is 42 years old. Both parties were born in Argentina.
The parties commenced cohabitation on 9 March 1984. They have never married.
There are three children of their relationship. M G R born 31 March 1986; M D R born 4 June 1987; and J D R born 28 July 1990. Both elder children were born in Argentina. J was born in Australia.
In March 1990, the father left Argentina and migrated to Australia. Two months later, the mother and their two sons joined him in Australia. J was born approximately two months after the mother migrated to Australia. The family has lived in Australia continuously since that time.
The parties separated for the first time in about April 1992. They reconciled a short time later.
The parties separated again in April or May 1992 at which time the mother was allocated permanent accommodation by the Department of Housing at Moss Vale. The mother and children moved into Moss Vale in October 1992.
In April 1997 the mother and children moved into the father’s home at Liverpool. All the children were enrolled at All Saints Primary School, a nearby Catholic school. M started at the adjacent Patrician Brothers Catholic College the following year.
At the end of the 1999/2000 Christmas school holidays, the mother left the father’s home at Liverpool and with J returned to her home at Moss Vale. The two boys remained living with their father.
On 11 February 2000, the father commenced proceedings at the Local Court at Liverpool seeking residence of the child. Ultimately, the proceedings were transferred to the Federal Magistrates Court and judgment was delivered after a defended hearing. The orders made on 11 October 2000 were as follows:
1.That each party be responsible for the day to day care, welfare and development of J D R born 28 July 1990 (“the child”) when the child is in that party’s care.
2.That the child live with the “Mother”, C M.
3.That the “Father”, E J R, have contact with the child as follows:
(a)During the Wingecarribee Shire Swimming Club season (from 14 October to 25 March in each year) upon condition that the child is registered and swimming competitively, for the first three weekends of each calendar month commencing at 9.00 am Saturday and concluding at 6.00 pm on Sunday.
(b)From the conclusion of the Wingecarribee Shire Swimming Club season and until it resumes, each alternate weekend from 5.00 pm, Friday to 5.00 pm, Sunday.
(c)On J’s birthday:
(i)For two hours if the birthday falls on a school day provided she is returned to the Mother at her home no later than 8.00 pm;
(ii)From 3.30 pm until 8.00 pm if the birthday falls on a weekend or public holiday which is not otherwise a contact weekend.
(d)On the weekend of Father’s Day, provided that if Father’s Day does not fall within a scheduled contact weekend, then J shall spend the following weekend with the Mother in substitution.
(e)That J shall spend the weekend of Mother’s Day with the Mother provided that if Mother’s Day falls within a scheduled contact weekend, then J shall spend the following weekend with the Father in substitution.
(f)For one half of all public school holiday periods, being the first half in 2001 and the second half in 2002, alternating in that pattern thereafter subject to Order 3(g) below.
(g)In the 2000/1 and 2001/2Christmas holidays:
(i)From 9.00 am on the first day of the holidays until 9.00 am on 31 December 2000; and
(ii)From 9.00 am on 18 January 2001 until 9.00 am on 27 January 2001;
(iii)From 9.00 am on 31 December 2001 until 9.00 am on 27 January 2002.
4.Unless otherwise provided in these Orders, that for the purpose of contact, the Father shall collect J from the Mother’s residence at the commencement of the contact period and the Mother shall collect J from the Father at the conclusion of contact at Campbelltown Railway station.
5.In the event that contact occurs on a weekend adjacent to a public holiday, the commencement or return time for contact shall be extended to include the public holiday.
6.That when collecting the child for contact, the Father shall not enter the grounds of the Mother’s property and shall indicate his arrival by either arranging for another person to collect the child or by tooting the car horn.
7.That the Father have reasonable telephone contact with the child and in this regard that the Mother do all things to facilitate regular telephone communication between the child, her father and brothers.
8.That each of the parties be entitled to obtain directly from any school attended by any of the children of the relationship or from any health or welfare professional or other professional attended by any of the said children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
9.That each party advises the other no later than twenty-eight (28) days of any plans to remove the children from the State of New South Wales.
10.That Orders made on 25 November 1993 be discharged.
11.The party who caused any subpoena to issue shall return the subpoenaed documents within 7 days.
12.All exhibits to be collected at the expiration of 28 days.
13.All outstanding applications are otherwise dismissed.
Both parties complied with the orders for contact.
During the 2000/2001 Christmas school holidays J and her brothers stayed with the mother from between 31 December 2000 to 17 or 18 January 2001. They then went to the father for the latter part of the school holidays. On 26 January 2001, J told her mother during a telephone call that she wanted to stay with her brothers. The mother then spoke to M who said to her, “She is not going back Mum. She wants to stay with us.” The mother tried to ring the child again but was unable to make contact. The next day she went to Campbelltown railway station waiting for the child to be returned to her. She waited in vain. Immediately the mother attended Campbelltown Police Station, reporting that her daughter had not been returned from contact. That evening, the mother again spoke to the child, during which conversation J declined to tell her where she was. On Monday 29 January 2001, the mother gave her solicitor instructions to seek her daughter’s return. The father’s solicitor advised that the father was making an application for interim residence and that he would not return the child pending the hearing of the application.
On 30 January 2001 the Local Court at Camden issued a recovery order on the mother’s application. That same day the mother and her solicitor accompanied officers from Liverpool Police Station to the father's residence at Liverpool for the purpose of giving effect to the recovery order. None of the children were at the father’s flat. Police interviewed the father and searched his unit.
On 31 January 2001, the mother reported the child as a missing child with Bowral Police. J was due to resume school on 30 January 2001 at Moss Vale Primary School. She did not start school. The boys were due to resume school on 1 February 2001. Neither boy returned to school.
The father’s interim residence application came before this court on
5 February 2001. That day, the child and her brothers attended the father’s counsel chambers and then came to court. Although he was in daily communication by telephone with the children, the father claims that he did not know where the children were between 30 January 2001 and 5 February 2001. He claims that he still does not know where the children were and that he had no role in their disappearance.
The father’s application for interim residence of the child was unsuccessful. The relevant orders made on 5 February 2001 were as follows:
1.That the Father’s application for interim residence of J D R born 28 July 1990 is dismissed.
2.That pursuant to Section 68L of the Act that the child J D R be separately represented and I request that the Legal Aid Commission provide that representation.
3.That both parties forward to the child’s representative within 48 hours copies of all documents filed by them in these proceedings.
4.That the Father deliver the child to the Director of Court Counselling immediately
5.That the Father then departs the court precinct.
6.That the Director of Court Counselling release the child forthwith to the Mother.
The matter again came before the court on 2 March 2001. That day, the child was represented pursuant to s 68L of the Family Law Act. On 2 March 2001, orders were made by consent that provided for the reintroduction of contact between the child and her father, for the preparation of a Family Report and otherwise directions made as to the conduct of the final hearing.
The evidence
The applicant father relied upon the following evidence:
·His affidavit sworn and filed 29 January 2001, together with his oral testimony;
·His affidavit sworn 5 July 2001 and filed 6 July 2001;
The respondent mother relied on the following evidence:
·Her affidavit sworn 1 February 2001 and filed 3 February 2001, together with her oral testimony;
·Her affidavit sworn 17 October 2001 and filed 23 October 2001.
During the first day of the hearing the mother's solicitor issued a subpoena to attend and give evidence upon M T. So that Mr T could be cross-examined by the mother's advocate, the child's representative called him as a witness in the child's case. His evidence was taken viva voce by telephone. He was cross-examined.
A Family Report was prepared by a court counsellor Gail Passier, which report is dated 22 October 2001. The report became an exhibit[1] in the proceedings. The court counsellor recommended that the child lives with the father and that the court makes no orders for contact. Rather, the counsellor recommended that the arrangements for contact be flexible and reflect the parties’ improved capacity to cooperate with each other as well as the child’s growing need for personal independence. I accept the evidence given by the counsellor as to the child's wishes and analysis of the parents capacity to meet her needs. I weigh differently, however, the need to give immediate effect to the residence order that will be made in the husbands favour.
[1] Exhibit C
At the commencement of the hearing, the court directed that the evidence be limited to matters that have arisen subsequent to publication of its Reasons on 11 October 2000. The findings of fact contained in that judgment became the starting point for these proceedings. This ruling was made pursuant to section 135[2] of the Commonwealth Evidence Act. Neither the affidavit material relied upon by the parties, nor the Family Report adduced any evidence that challenged the earlier findings of fact. Thus revisiting any of the matters that predated the 11 October 2000 decision could only have protracted the proceedings to no forensic benefit. See alsoMelbourne Ports Authority v Anshun.[3]
[2] s135(b) and (c)
[3] (1981) 147 CLR 589
It is agreed that there has been a significant change in circumstances since the orders were made on 11 October 2000. That change in circumstances is that the child has, since January 2001, expressed a consistent wish to live with the father. Because of her age and apparent maturity, quite properly, no issue was taken as to the threshold issue. See King and Finnernan. [4]
[4] (2001) FLC 93-079
The issues
The issues that arose during the proceedings were the following:
·What weight should be given to the child's wish to live with her father and brothers.
·The extent to which the child's wishes have been formulated responding to pressure from the father and her brothers.
·The effect on the child's relationship with the mother in ordering in accordance with her wishes.
·The effect on the child's relationship with the mother in dismissing the father's application for residence.
·The effect on the child of changing a life long arrangement in which she has lived with the mother.
·The weight that should be given to orders that will promote finality.
Relevant law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act [5]
A substantial issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. Recently the Full Court of the Family Court considered this issue in R and R: Children's wishes [6]. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W [7]. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children's best wishes." R and R: Childrens wishes[8].
[5] (1997) FLC 92-755.
[6] (2000) FLC 93-3000
[7] (1995) FLC 92-598
[8] supra
Section 68F – Determining the best interests of the child
The child’s wishes
Since January 2001 J has consistently asserted her desire to live with her brothers and father. With a strong sense of deja vu she told her mother at the end of the 2001 school holidays, as she had at the end of the 2000 Christmas school holidays, that she wanted to remain in her father’s care. Unlike last year, this year J acted on her desire. Aided and abetted by her brothers she ran away and hid for days, returning via her father’s legal representative to court on the day the father’s application that he be granted her interim residence was heard. The timing of her return is too remarkable for it to be a coincidence.
Running away as she did, was a petulant and immature display by the child. It is inconsistent with both parties evidence that she is an appropriately mature child. Fortunately, after the father’s application for interim residence failed, J has cooperated with her mother, attending and returning from contact without further incident. When asked by her mother with whom she wishes to live J has told her mother consistently during 2001 that she wants to live with the father. The mother accepts that J genuinely wants to live with her father and brothers. This accords with the counsellor’s opinion.
During the proceedings concluded in October 2000, J participated in the preparation of a family report by court counsellor Passier. Thus, when she attended the same court counsellor for the purpose of a further family report ordered for these proceedings, J was familiar with the process and comfortable with the court counsellor. Immediately upon her arrival J announced to the counsellor that she wanted to live with her brothers and father. J reflected on her prior interviews and said, “I really did want to live with him (her father), but I really didn’t want to say anything”.[9] Twelve months on J explained that she had become more self confident and hence is able to say what she wants. Ostensibly, J’s preference for living with her father is based upon her belief that her father is a better listener and is more even tempered than the mother. I am satisfied that J’s mother has criticised the father as J explained to the counsellor. J sees her mother as “really serious” and reported that sometimes her mother became really angry.
[9] Page 4 Family Report
More relevantly, however, J has a close and loving relationship with her brothers. During informal observation in the reception area, court counsellor Passier observed J and M “chatting excitably and M had his arm around J”[10]. After he kissed his mother M kissed J. The counsellor reports, “J appeared very pleased to see her brother”[11]. These three children have a strong attachment. J’s wishes to live with her father, I am satisfied, are strengthened, if not driven, by her desire to live with her brothers. During each contact visit the father discusses J’s wishes with her and he and her brothers have created a family belief that it is only a matter of time before J lives with them. Consciously the father has created an environment that synchronised with J’s wish to live with him. His environment has strengthened her wish, it has not created it.
[10] Page 6 Family Report
[11] Page 6 Family Report
Court counsellor Passier tested J’s resolve and explored with the child the veracity of her deliberations. She understood the changes in her daily life that a change in residence would necessitate. She had considered the nature and extent of contact that she wished to have with her mother. She planned regular alternate weekend contact, plans she would implement even if there were no orders in place. J told the court counsellor that if her father were unsuccessful in his quest for residence, that she would continue to pursue the issue with the mother. Anticipating that her mother would resist her persistence, J made it absolutely clear to the court counsellor that she was firm in her resolve.
J loves both of her parents and is dearly loved by them. She is acutely aware that both want her to live with them. Knowing, as she does, that by asserting her desire to live with her father, she will hurt her mother, she has decided that it is time that her wishes were known and listened to. She is a mature eleven year old whose wishes must be given material weight. They are soundly based and reasoned.
The nature of the child’s relationships
For the entirety of her life, the child has lived with the mother. The mother is her prime care giver and they are deeply attached to each other. There is a strong relationship that has provided a secure basis for the child’s development. In her mother’s care, the child has developed her strong relationship with her father, which relationship has survived living separately from him for most of her life.
By comparison, the father has never had the exclusive care of the child. During periods of cohabitation, his care complimented the primary role taken by the mother. During the first separation and since their final separation, his relationship has been maintained during contact periods. Presently, the child is happier in her father’s company than in her mother’s care and she feels a strong pull to be with him. Theirs is a loving relationship that is also solidly based.
J and her two brothers strongly wish to live together. They are comparatively close in age and share interests in common, such as soccer. Increasingly, this child perceives it is intolerable for her to be separated from her brothers.
The likely effect of any changes in the child’s circumstances
The mother’s proposal does not involve any change in the child’s current circumstances. She would continue to attend Moss Vale Primary School, continue her peer and sporting relationships and have regular contact to her father and brothers. Recently, the mother obtained employment in a local supermarket. Her hours of work vary. She hopes and expects that she will be able to work a regular week, about five hours a day. When working an early shift, she leaves J’s uniform out and is satisfied J is mature enough to get her own breakfast and catch the bus to school. Some afternoons J may need to be at home alone, for no more than one hour. The mother believes that she and her daughter enjoy their life together. They are settled in their local community. J has friends at school and in her neighbourhood. The arrangements established by the mother for J’s care are completely appropriate.
The weekend prior to the hearing the husband moved into a new home at Mount Pritchard. The home comprises a three bedroom dwelling that has a backyard. It is less than ten minutes by car to All Saints School. The school bus takes 10-15 minutes and it is possible, if necessary, to walk from home to All Saints School. The father continues to be unemployed and the source of funds used to purchase the house is not in evidence. He still has not completed his workers compensation litigation.
If successful, the father will return J to All Saints Primary School where she attended during 1997 and 1998. Whilst changing schools will be disruptive of her education, the effects of change are ameliorated by the fact that she would be returning to the school she has previously attended. By far the more significant change is that she would leave her mother’s care and no longer enjoy one on one attention from her. With her brothers she must share her father’s time. Her friendships will be disrupted and in the long term probably lost. However she will be able to make new friends. At her age friendships are fluid and their loss has less significance than it does for older children. Because a change in her residence accords with her wishes, she will have a positive frame of mind with which she adjusts to these changes. Holding her back, is potentially more damaging than giving effect to the change she seeks.
The practical difficult and expense associated with contact
The findings made on 11 October 2000 are apposite. Mount Pritchard is adjacent to Liverpool and the distances between the parties’ homes are approximately 140 kilometres. The wife still is without a car. She is working while the father is not. He has a motor vehicle and the available time within which to carry out the transport for contact purposes.
Since Mother’s Day 2001, the father has undertaken all of the travel associated with contact. He has driven the sons to their mothers for alternate weekend and school holiday contact, as well as collecting and returning J when she exercises contact to him. I accept the child’s representative submission that requiring the father to continue to do the transporting for contact sends a strong message to all the children that the father values their relationship with the mother. This is a particularly important message for J to receive if her wishes are given effect to.
Capacity of the parents to meet the child’s needs
Court counsellor Passier concludes “that both parents could provide adequate care for J”[12]. This is so. Both are intelligent and articulate people. They are ambitious for their children’s success and each is capable of providing the framework for it. The mother criticised the father’s parenting capacity on a number of fronts. She is unhappy that M has decided to leave school and take up an apprenticeship. Her plan had been that M would complete year 12 and study at university. M wants to be a builder. This does not reflect adversely on the father’s parenting capacity. He agrees with his eldest son, that provided the child has an apprenticeship available and is accepted into TAFE college, he can complete his schooling at year 10. Otherwise, he must complete year 12. Although the mother is disappointed, M’s plans are worthy and if implemented he will be able to enjoy his future career.
[12] Page 6 Family Report
More significantly, the mother is deeply concerned about the father’s attitude to J’s relationship with her. He has minimised, she believes, the disruptive effect on the child involved in changing the place of residence. She believes he has relentlessly pressured J to live with him. I am satisfied that the father has placed pressure on J and has allowed her brothers to similarly do so. There is no evidence that indicates he made any reasonable attempt to help his children adjust to the orders made on 11 October 2000 which ordered that J continues to live with the mother. It was his obligation to do so.
During the proceedings the father criticised the child’s achievements academically in her mother’s care. Relentlessly, in the face of evidence to the contrary, he maintained that the child was failing to achieve to the level her ability indicated she ought. This was based on some conversations he had had with the child and apparent deficiencies in her current knowledge. He alleged that when she attended All Saints school she had a greater mastery of reading and superior general knowledge. There was no evidence that independently corroborated his assertion. By contrast, the child’s basic skills test 2001[13] report for parents showed that in six of the seven areas examined, J was in the second highest band of achievement. In measurement she was in the middle band. I am satisfied that J is performing well at school in both literary and numeracy and that the father’s criticisms are contrary to the evidence.
[13] Exhibit A
I am satisfied that both parents are able to care for the child’s needs competently.
The child’s maturity, sex and background and other characteristics
I have already made findings as to J’s maturity and will not repeat them.
J enjoys a rich cultural life, sharing in her family’s Argentinian heritage and has adapted, with her family, to life in Australia. Both parents, I am satisfied, are able to continue to promote J’s enjoyment of the two cultures. The father has the capacity, as indeed does the mother, to manage the child through puberty. There are no other factors that arise.
The need to protect the child from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
There has been no violence or other inappropriate behaviour since the last hearing. The parties relationship has improved and they have, in spite of this continuing litigation, managed to find a level at which they can communicate concerning their children. The mother still prefers that the father not come into her home, which preference he has respected. There is nothing revealed in the court counsellor’s investigations that suggests this child is at any risk from her father or mother of the type identified in the subsection. I am satisfied that the issue does not arise in these proceedings.
The attitude to the child and the responsibilities of parenting
This is an important area of distinction between the parties. Subsequent to 11 October 2000 the mother complied with the orders for contact made in the father’s favour. During the last year the mother has readily accommodated the father’s requests to alter the times he would have J. Not only did this flexibility extend to weekends, but also to school holidays. During the last school holidays she agreed that the father could take the children to Queensland during a period that would otherwise have been time the children spent with her. In her mother’s care, the mother describes a close and harmonious relationship. The mother has encouraged J’s sporting achievements and she takes keyboard classes. The mother is very clear about her responsibility to guide her daughter’s development.
She was dismayed by J’s disappearance in January/February 2001. Upon J’s return to her, the mother and a friend questioned the child about her disappearance. The mother describes being worried sick during the ten days when her daughter was missing. She wanted to be certain, before the child returned to her father for future contact that she knew where the child had been and what the risks were the child was exposed to as a consequence. J found the mother’s questioning gruelling and ultimately refused to tell her the truth. She allowed the mother to deduce she had been in the care of M T, a friend of the fathers. I accept Mr T’s evidence that J was not in his care. Great criticism was levelled at the mother alleging an insensitive interrogation of the child. This criticism is without foundation. In circumstances where the father has made little or no attempt to understand where his children disappeared to, it was manifestly necessary that the mother attempt to establish what had occurred. Not only J, but all of the children may have been in a situation of significant risk.
The father’s response to this same incident highlights the distinction between the parties in the manner in which the parties exercise parental responsibility. His response to the children’s disappearance was to express disappointment to his sons for their behaviour. The boys were deprived of access to their computer for one week and were grounded for four weeks. He decided that when they refused to tell him where they had been, that they could do no more as there was no benefit in punishing the children. His response was manifestly inadequate to the gravity of the situation. He spoke to the children daily and I do not accept his evidence that he did not know where the children were. This is fundamentally inconsistent with his apparent lack of concern during the periods they were ostensibly missing and lack of action upon the children’s return. It is too coincidental to be credible that the children arrived at the father’s barrister’s chambers at the same time the father was there and then came with the father to court. The evidence suspiciously suggests that not only was the father aware of the children’s location during the ostensible disappearance, but that he knew from the outset what was happening. The father’s close friend, M T gave evidence. At no time during the period the children were ostensibly missing did the father discuss with his friend that his children were missing. At no time since then has the father discussed with Mr T the children’s disappearance. Had the children truly run away the father’s reaction, as was the mothers, would have been fear for their welfare and grave anxiety. The manner in which the father exercised his parental responsibility throughout and subsequent to this incident was incompetent and manifestly reprehensible.
By contrast to the mother’s pro-active approach to her responsibilities as a parent, the father’s is relaxed and to a considerable degree he is relating to the children as one of them. When J is in his home he described her, “when J is there she is the boss”. Speaking of her relationship with her brothers he said, “She makes them behave”. He believes very strongly that the children should be able to have their wishes respected and implemented. Their wishes are to be treated as a given and are not subjected by him to the critical analysis a child is entitled to receive from a parent. This simplistic approach extends to matters critical to the children’s welfare. For example his approach to J attending her brother’s soccer games, that is she should attend soccer and later on see her mother on contact. That the attendance at soccer would seriously erode the time J could spend with her mother did not apparently concern him. There was no adequate reason advanced by him why J’s interests required her to attend soccer every weekend, rather than alternate weekends when she was with him.
The father has seriously failed in his financial responsibilities to J. He has never paid child support. He has left it to the mother to struggle financially to support their daughter. Inexplicably, he has been simultaneously able to acquire two pieces of real estate: his unit at Liverpool and now his home at Mount Pritchard.
In material respects, the father’s exercise of his parental responsibility is immature when compared with the mothers. Were it not for the fact that this child so strongly wishes to live with him and her brothers the child’s best interests would be served by continuing to live in her mother’s care.
Any family violence involving the child or members of the child’s family
I have already made findings concerning the history of family violence and do not repeat them. I am satisfied that there is no continuing risk of family violence.
Any family violence order
There are no current violence orders.
Whether it would be preferable to make the order that would be least likely to be institution of further proceedings in relation to the child
This is a critical issue for this family. Twice in twelve months this family has participated in defended parenting proceedings relating to J’s residence. The toll that this has taken on all members of the family is manifest. The mother describes the toll taken on J as undermining her motivation. She says and I am satisfied that it is so, that J is dislocated and no longer makes plans because she (“the child”) does not know where she will be. In a triumph of hope over experience, she opines that with time the child might learn to value her mother and the life her mother offers her.
With quiet resignation she conceded that if J continued to hold her current views about where she should live, then at the end of primary school, “I would have to let her go, don’t you think”. In contrast to evidence given in the prior proceedings, although she recognises that she would have to give effect to the child’s wishes, she said that the father would have to bring another application for residence. The mother believes that the father’s determination that the child live with him will not change. That accords with my assessment of him.
Similarly, I am satisfied that the child has strongly held wishes to live with her father and brothers which wishes will endure and strengthen with time. J believes that she must live with her father and brothers and she is relentlessly determined to do so. Similarly, her brothers are determined that the siblings will live together.
The counsellor explored with the child the prospect of continuing to live with the father and further court proceedings. J said, “I don’t want to have to come back”[14] and, “I just couldn’t take it. But I would tell her I want to live with my dad”[15] .
[14] Page 3, Family Report
[15] Page 3, Family Report
There is a very high probability that unless a residence order is made in the father’s favour, there will be further proceedings between the parties concerning the child. There is a commensurate risk that the child will be increasingly destabilised and her motivation suffer. In the context of this family the issue is important, and hence must be a matter that is given significant weight.
Conclusion
J is an 11 year old girl who throughout 2001 has expressed a strong wish to live with her father and brothers. Whilst the evidence discloses pressure and manipulation of the child by the father and brothers, the child’s wishes reflect a strong yearning to live in the same home as her brothers. She has reached a time in her life where she wants to live with her siblings and is determined to do so. This sibling bond is particularly strong.
The likely consequences of an order contrary to the child’s wishes include developing resentment by the child towards the mother. Even though theirs is a strong relationship and they are deeply attached to each other, there is a risk that their relationship would be slowly and relentlessly undermined. M’s youthful analysis of the harm that would be done to J’s relationship with the mother, as described to the court counsellor, is apposite. This year, J was sufficiently motivated to enforce her desire to live with the father that she ran away rather than return to the mother. This was a petulant and immature display by the child. Nonetheless, it underscores the strength of her need to change residence.
Counter balanced against giving effect to the child’s wishes is the effect on changing a life long status quo whereby she has lived with her mother. This is a very weighty consideration. In her mother’s care this child has developed and maintained her relationship with her father and her brothers. She has achieved well academically and is socially adept. She has been competently and lovingly nurtured. The mother’s advocate pressed the court to emphasise the status quo in its deliberations and balance the child’s wishes such that the status quo prevailed. It was submitted that in the father’s care there was a significant risk that J would not have contact to the mother. This was based on the lack of contact in particular that the boys exercised to their mother prior to mid 2000. There is a risk that contact would falter if not terminate. The risk is minimal. This is because J herself is clear that she insists on having contact with the mother. Her desire to live with her father is not based on rejection of her mother, rather a positive pull to the brothers and father. The father has attended to all of the effort associated with contact. He will be ordered to continue to do so. I am satisfied that the combined effect of the orders that will be made as well as the child’s insistence of her relationship with her mother continuing will mean that it is highly probable that contact between the child and the mother will continue.
This family needs finality surrounding the issue of J’s residence. In one sense parenting orders are never final. However, for this family the reality is that unless J’s wishes are given effect to there it is almost certaint further litigation concerning this issue lies ahead. That is not in the child’s best interests. An order that the child live with the father significantly reduces the risk of future litigation. This is a weighty factor indeed.
The court counsellor pressed that the order for residence be given effect to immediately. I am not satisfied it is in the child’s best interests to do so. These proceedings have taken place during the latter part of the final term of the school year. This is an exciting time for children as they wind up a years education and achievements. It is a social time when friendships are relished and plans for the year ahead made. The child’s representative submitted that giving effect to the residence order immediately as compared to waiting for the completion of the school year is a finally balanced decision. This is so. Although J could immediately start school at All Saints Primary School, where she previously attended, there is a greater degree of dislocation for her starting school at the end of the academic year rather than with the intake of new students at the start of a new year.
The child is fearful that her mother will nag her and try to talk her out of her decision to live with the father. There is a risk that this may happen, however I assess it to be a small risk. Rather, the mother has demonstrated a caring child focussed approach as a parent. I am satisfied that she will, to the best of her ability, mask her grief and manage the weeks that lie ahead prior to the residence order being given effect to, without overburdening the child with her disappointment.
Finally, there is the structure of orders for contact. There is a need for orders for contact to be made in the mother’s favour. The mother and child will benefit from a structure that the father must adhere to. It is an inadequate response to prior history that the boys have attended contact without order. It was only with the intervention of court counsellor Passier that their contact resumed. Once the shadow of litigation has passed the father’s resolve may falter. Thus it is necessary for orders to be made to reinforce the contact.
J will establish her own social life in her father’s care. She will need the opportunity to enjoy this and the court must balance the child’s developing independence with the need to nurture the child’s relationship with her parents. Even though she wishes it, there is no need for this child to attend soccer every weekend with her brothers. Contact that extends for one night in a weekend has a lesser quality about it than a full weekend. This is because too much time is taken up with travel and the contact has a more transitory structure. Two nights gives the child a greater opportunity to immerse herself in her mother’s environment.
For these reasons I am satisfied the orders identified at the commencement of this judgment are in the child’s best interests.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 9 November 2001
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