R & R: Children's Wishes
[2000] FamCA 43
•4 February 2000
[2000] FamCA 43
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
Appeal No. EA 53 of 1999
File No. SY 6087 of 1996
R and R: Children's Wishes
EDITED REASONS FOR JUDGMENT OF THE FULL COURT
BEFORE: Nicholson CJ, Finn and Guest JJ
HEARD: 21 September 1999
JUDGMENT: 4 February 2000
APPEARANCES:
Mr Knox of Counsel instructed by Broun Abrahams, Solicitors, DX 11551 Sydney Downtown, appeared for the Appellant Husband.
Mr Todd of Counsel instructed by B Hayward & Co., Solicitors, DX 11346 Hurstville, appeared for the Respondent Wife.
NAME OF APPEAL: R and R: Children's Wishes
APPEAL NO. EA 53 of 1999 from SY 6087 OF 1999
DATE OF HEARING: 21 September 1999
DATE OF JUDGMENT: 4 February 2000
CORAM: Nicholson CJ, Finn and Guest JJ
CATCHWORDS: CHILDREN - Residence - Best Interests of the Child - wishes of the Child - Orders made by trial Judge not in keeping with wishes of the child - Whether wishes treated correctly - Harrison and Woollard (1995) 18 Fam LR 788, (H v W (1995) FLC 92-598) considered.
PRACTICE AND PROCEDURE - Family Reports - Desirability of counsellor asking child how he or she would feel if the Court does not give effect to wishes where the child feels comfortable to express wishes - Applicability to Child Representatives.
This was an appeal by the father of two children in respect of certain parenting and property settlement orders made by Moore J on 7 June 1999.
The children of the marriage are two boys who were aged 12½ and 10 at the time of trial. Both parties sought residence orders in their favour. Her Honour made a residence order in favour of the wife for both boys and ordered that she have responsibility for their day to day care, welfare and development. Further orders were made for contact between the children and the husband.
Her Honour also made orders for a property settlement that involved the sale of the former matrimonial home and the distribution of net assets amounting to $321,619. Moore J found that the parties had contributed equally to the property but that there should be an adjustment of 25% pursuant to s75(2) of the Family Law Act 1975. Counsel for the husband conceded that if the residence orders remained undisturbed on appeal, it would be very difficult for him to argue that there was any error on the part of her Honour in respect of the property orders.
The parties were married for approximately ten years before they separated in October 1994 at which time the husband left the matrimonial home. Since that time, the children lived in the family home with the wife. The husband’s occupation meant that he spent considerable periods of time in other parts of Australia and overseas, mainly in Asia. The wife and the children usually joined him for all or part of these postings during the marriage.
For the two years following separation it appeared that there were sensible and flexible arrangements between the parties as to contact. These arrangements included frequent and almost daily visits to the home, camping holidays and a visit to Japan (when the wife accompanied the children). Her Honour found that the wife facilitated these arrangements.
The husband went to live in Bangkok for 2 ½ years for work reasons. This greatly distressed the children. Contact was maintained by telephone and by means of holiday visits by them to be with the husband, together with visits by him to Sydney when he moved into the former matrimonial home with the wife’s acquiescence for the period of the visits. Following the visits to the husband overseas, it was his evidence that the children showed considerable distress upon departure. The wife did not dispute this evidence and her Honour appeared to have accepted that this was the case.
A Family Report was before the trial Judge, the substance of which was accepted by her Honour. The Counsellor indicated that both boys wished to live with their father but also raised concerns about the husband’s interactions with the children and his commitment to facilitating contact between the children and their mother in the future. Moore J also expressed concern about “the husband’s open disregard for the wife’s viewpoint, his apparent lack of respect for legitimate opposition she has expressed to unilateral decisions he has taken, and his apparent difficulty in acknowledging the validity of her role in the children’s lives.”
In reaching her decision, her Honour balanced the wishes of the children against factors favouring the children remaining in the mother’s care and had regard to “the husband’s limited insight into the effect of his conduct on the children’s future balanced development”. While accepting the children’s wishes were a weighty consideration, she viewed them in light of the children having missed their father while he was overseas, his now greater availability to them, and the Counsellor’s view that frequent and regular contact can meet the children’s desire to spend more time with him.
The only issue pursued at the hearing of the appeal concerned her Honour’s treatment of the children’s wishes. Two principal arguments were advanced:
That children's wishes are important and should not be departed from where they are soundly based and have been expressed without influence from either parent and are expressed against a background of particular facts and circumstances.
That her Honour had made a mistake of fact in that the expressed wishes of the children were not that they should spend more time with their father but that they should live with him.
Held: per curiam, appeal dismissed, parties at liberty to make submissions as to costs.
The trial Judge had treated the children’s wishes in accordance with the law.
a) The Full Court in Harrison and Woollard (1995) 18 Fam LR 788, (cited by her Honour as H v W (1995) FLC 92-598) stressed the importance of trial judges giving proper weight to children's wishes but did not say that they should not be departed from. Appropriate and careful consideration must be given to children’s wishes. They should not be simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so. Her Honour had given effect to these requirements.
b)Her Honour was not required to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others in order to make orders contrary to their wishes. While those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. 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. 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 any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
c)Baker J’s reference to the "validity" of the child's wishes in Harrison and Woollard should not be understood as confining such a consideration to factors such as whether the wishes of the child were unsound, founded on improper considerations or influenced by others. His Honour was there referring to the overall validity of such wishes against the particular factual background found by the trial Judge in the case in question.
Her Honour had neither misunderstood nor made a mistake of fact in respect of the children’s wishes. The findings she made were open to her.
a)In addition to considering the Family Report, her Honour had specifically asked the Counsellor during the hearing about the impact on the boys and their likely response if effect was not given to their expressed wish to live with their father. The oral evidence of the Counsellor was that she felt that their reasons for wanting to reside with their father stemmed from the lack of time they have had with him over the last few years and that their wish to spend more time with him could be met by more extensive contact arrangements than had been the case in the past.
b)Her Honour was not obliged to take the matter further. It was open to the husband’s counsel to seek leave to ask supplementary questions had he wished to do so but he made no such application.
The Full Court observed that the Counsellor's report made it clear that in asking each boy whether he had a preference as to where he would like to live, she informed him that he did not have to answer the question if he found it uncomfortable to do so. It did not appear, however, that a question in similar terms was asked along the lines of how each boy would feel if the Court did not come to the same conclusion.
a)It would seem generally desirable that authors of family reports ask such a supplementary question where children do feel comfortable to express a preference on a matter before the Court. The inclusion of such information as well as the Counsellor's assessment of it in family reports is an aid to better understanding the wishes of children and the process of giving weight to them.
b)The role of a child representative requires them to "inform the Court by proper means of the children's wishes in relation to any matter in the proceedings" - see P and P (1995) FLC 92-615; A v J (1995) FLC 92-619. It would also be desirable for child representatives to arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes, provided of course that the child is comfortable to express a view.
REPORTABLE
INTRODUCTION
This is an appeal by the father of two children against Orders 1, 2, 3, 4, and 5 made by Moore J on 7 June 1999. The children of the marriage are [a boy we shall call Mel] aged 12½ at the time of trial … and [a boy we shall call Alan] aged 10 at the time of trial … .
The amended applications of both parties sought orders in respect of both settlement of property and the children. The competing applications at trial were the wife’s initiating application as amended and filed on 1 December 1998 and the husband’s amended response filed on 14 January 1999. By his response, the husband additionally sought residence orders in his favour.
Her Honour heard the matter on 4 and 5 May 1999 and reserved judgment until 7 June 1999. On that day, her Honour made a residence order in favour of the wife for both boys and ordered that she have responsibility for their day to day care, welfare and development. Further orders were made for contact between the children and the husband in the following terms:
(a)each alternate weekend from 6pm Friday to 6pm Sunday;
(b)for half of each school holiday period;
(c)each Wednesday from 6pm to before school Thursday morning;
(d)at other times as agreed in writing between the parties.
Order 4 further provided:
“That the husband be restrained from entering or otherwise remaining in the immediate vicinity of the wife’s residence, save and except for the implementation of the orders for contact with the children, in which event such attendance at the wife’s residence not exceed 5 minutes for the purpose of collecting or returning the children at the commencement or conclusion of contact as the case may be.”
Her Honour also made orders for a property settlement that involved the sale of the former matrimonial home and the distribution of net assets in the proportions of 75% in favour of the wife and 25% in favour of the husband. The net assets were found to amount to $321,619 and which figure was not the subject of challenge before us.
Her Honour found that the parties had contributed equally to the property but that there should be an adjustment of 25% in respect of those matters pursuant to s75(2) of the Family Law Act 1975 ("the Act"). Both of these findings are the subject of complaint in the Notice of Appeal set out below.
As was pointed out during the course of argument, the orders as to property were very much dependent upon the orders made by her Honour as to residence. Counsel for the husband conceded that if the residence orders remained undisturbed by this Court, it would be very difficult for him to argue that there was any error on the part of her Honour in respect of the property orders.
This was a sensible concession as apart from contribution, the argument before her Honour was that Counsel for the wife was seeking a 30% adjustment for the s75(2) factors as against 20% on the part of the husband. It would therefore be extremely difficult to argue that an allowance of 25% by her Honour was outside the range of her discretion.
Similarly, whilst Mr Knox of Counsel, who appeared on behalf of the husband, did not concede that her Honour’s apportionment of contribution was correct, he agreed that if there was any adjustment to be made as a result of the arguments advanced on his client’s behalf, then having regard to the relatively modest amount involved, any adjustment that might be made in relation to contribution would very likely be cancelled out by a further adjustment to the s75(2) factors.
In our view her Honour’s apportionment of contribution was in any event unassailable having regard to the length of the marriage and the enhanced homemaker and parent contribution by the wife arising from the husband’s absences, and in particular to the lengthy period after separation when the wife had almost the sole responsibility for the care of the children while the husband was in Bangkok.
We turn therefore to the issue of residence and commence with setting out the background details so far as they are relevant.
RESIDENCE
The husband is aged 41 .. and has at all material times been employed by [an airline] as an engineer. The wife is aged 40 … . She worked as a secretary in the past but has not been in the paid workforce since October 1986 and currently derives income from government social security benefits.
The parties were married [in] October 1984 and separated [in] October 1994 when the husband left the matrimonial home … and moved into rented accommodation in the near vicinity. Since that time the children have lived in the family home with the wife. The marriage was dissolved by Decree Nisi [in] August 1996 which became absolute [in] September 1996.
Neither party has remarried but the husband did live in a de facto relationship with another woman for about two years while he was living in Bangkok. That relationship ended in late 1998 when he returned to Australia.
The facts in relation to the history of the marriage are fully set out in her Honour’s reasons for judgment and there is nothing to be gained by their repetition here. It is clear that the nature of the husband’s occupation has meant that he has spent considerable periods of time in other parts of Australia and overseas, mainly in Asia. The wife and the children usually joined him for all or part of these postings during the marriage.
For the two years following separation it appears that there were sensible and flexible arrangements between the parties as to contact. These arrangements included frequent and almost daily visits to the home, camping holidays and a visit to Japan (when the wife accompanied the children). Her Honour found that the wife facilitated these arrangements.
Following the move by the husband to Bangkok, which greatly distressed the children, contact was maintained by telephone and by means of holiday visits by them to be with the husband, together with visits by him to Sydney when he moved into the former matrimonial home with the wife’s acquiescence for the period of the visits. Following the visits to the husband overseas, it was his evidence that the children showed considerable distress upon departure. The wife did not dispute this evidence and her Honour appears to have accepted that this was the case.
It should be mentioned that the husband’s move to Bangkok for 2 ½ years was required for his advancement at work and it does not appear to have been a matter of dispute by the wife that this was so. It nevertheless left her with nearly all of the responsibility for the children’s upbringing during that period.
It was the events that followed the husband’s return from Bangkok that appear to have led to the present difficulties. These events are detailed in her Honour's judgment and do not need to be repeated here.
THE COUNSELLING REPORT
The parties and the children were interviewed by a Court Counsellor who delivered a report, the substance of which was accepted by her Honour. In dealing with the children’s wishes, the Counsellor said:
“I asked [Mel] did he have any preference about where he would like to live and I also told him that he did not have to answer this question if he found it uncomfortable to do so. He stated that he would choose to live with his father because “I haven’t had him with me for a long time”. He went on to say that he would like to see his mother on the weekend and also during the week. He said that he would like to see her after school and that if he lived with his father he wanted to spend as much time with his mother as he could.”
Her Honour commented:
"I accept this as being an accurate account of this discussion with [Mel] as to his preference about his future living arrangements.
As for the interview with [Alan], the counsellor described him as being aged 10 and coming into the room ‘with a very happy cheeky smile, sitting comfortably in the chair and had no difficulty talking and did not appear to be anxious.’ After relating their discussion about other matters, the counsellor came to the report about his views with this passage at p15:
“I questioned [Alan] on whether he had any preference about whom he would like to live with during the week. I also told him that he did not have to answer this question if it was too difficult for him. He said that he would like to live with his dad because “I haven’t seen much of him”. He went on to say however that he wanted to see his mother “as much as I like”. When questioned further on this he said that he would go to his mum’s house “whenever I want to”.”(AB 29)
These accounts were accepted by her Honour as accurate. Her Honour noted that the Counsellor considered that both boys presented as happy and well adjusted and that they had a reasonable relationship, were quite supportive of each other and interacted very well during the interview. As for their preferences about future living arrangements, the Counsellor said:
“Both boys expressed a preference for residing with their father although they both talked about seeing their mother as often as they could. [Mel], because of his age, was more capable, I believe, of understanding the significance that residence with his father would make it less possible to see his mother as often. [Alan], on the other hand, is not mature enough to fully understand that residence with his father would not allow him to see his mother as much as he would want to. Both boys indicated that their reasons for wanting to reside with their father stemmed from the lack of time they have had with him over the last few years.”(AB 30)
In this regard, her Honour commented:
"I think in the first sentence the counsellor has rolled together the separate responses of the boys and it does not accurately reflect what was said by them. Nonetheless, I do not think that undermines the validity of her assessment of their maturity or her summary of the reasons advanced by them for wanting to live with their father. Certainly in her oral evidence the counsellor accepted that both children were expressing a clear wish to live with their father.
As to the impact on them if their wishes were not given effect, the counsellor said there is no doubt that the children want to spend more time with their father. She saw this as stemming from being deprived of his company in recent years. He is now available to them since his return to Australia. She was of the view that it will satisfy them to be spending more time with him and doing the sort of things they enjoy with him such as camping. She considered that this could be achieved by spending additional time with him apart from alternate weekends and half of school holidays. For this, she suggested the boys being with him one night per week and an arrangement whereby he could take them to their sporting activities even on weekends when they are with their mother.
This is an issue that looms rather large in this case and it will be necessary to return to it after canvassing some of the other assessments to be made under the various factors the law requires be taken into account. Their wishes will then have to be weighed against other matters impacting on the children’s best interests." (AB 30-31).
Her Honour also relied upon what she described as the independent evidence of the Counsellor of the boys’ interaction with their parents, the Counsellor's observations being as follows:
“The boys had been taken to Centrepoint Tower by Mrs [R]’s father while I had been interviewing Mrs. [R]. On their return they came into the office and started talking to their mother about their outing. They laughed and joked with her and talked about having seen a … jet from the Centrepoint Tower and having bought some Lifesavers. Mrs [R] asked whether they had saved her a Lifesaver and [Mel] jokingly said “put you hand out Mum” and handed her a piece of Lifesaver paper. Both the children and Mrs [R] laughed at this. Throughout the time in the office which was approximately 15 minutes the children appeared relaxed and happy with their mother. Mrs [R] asked them a couple of questions and they spoke to her in a comfortable relaxed way. [Alan] spent a big part of the time twirling around on my office chair which we all agreed made us feel sick and Mrs [R] asked him to stop doing this in a gentle but firm voice and he complied.”
Her Honour continued:
“As for the children’s interaction with their father, the counsellor recorded this at p.12:
“Mr [R] and the two boys came into the office and sat in the various seats. At first there was an uncomfortable silence as no-one appeared to know what to do. I pointed out to them that they could talk about anything they liked and I would be sitting there but would not be part of the interaction. Mr [R] commenced talking about plans for the weekend and also about the football match on the Friday night. He also talked about plans to go to the Show and when [Alan] asked when they were going he said “I’ve got to talk to your mother about that”. At one point [Alan] got up from his chair and sat on his father’s lap, obviously needing to be closer to his father. The boys and the father were laughing and joking, Mr [R] was listening and interacting well with the boys. On a couple of occasions his tone of voice appeared a little irritated but generally it was a positive interaction. However on one occasion Mr [R] made a comment to me that [Alan] was reading the cover of one of the books on my bookshelf which was titled “Good Loving: Great Sex”. [Alan] on hearing this turned his head away appearing to be embarrassed. Just as I told Mr [R] and the boys that it was time to leave the office, [Mel] stood up and Mr [R] made what I consider an inappropriate comment to him which appeared to embarrass [Mel] as it was said in front of me. He said to [Mel] “I think you have a problem [Mel]” and [Mel] said “Why Dad” and he said “Your fly is open”. [Mel] looked at me, appeared uncomfortable, and did up his fly.”(AB 33)
Her Honour relied upon this evidence to reject allegations by the husband that the wife was not involved with the children, did not involve them in activities which they enjoyed, and spoke to them in a harsh and aggressive manner which produced a similar response from the children towards her. Her Honour also expressed concern about the husband’s responses as reported by the Counsellor who considered that he appeared to embarrass both boys in a manner she considered inappropriate. Her Honour commented:
“Yet I accept the counsellor’s account of these events as likely to be the more reliable and I accept also her assessment of the children’s responses. Both comments had the potential to embarrass – and probably did – and it is rather striking that the husband was unable to see that.” (AB 38)
A further matter emerging from the Counsellor’s report and which her Honour regarded as significant, was her account of a discussion concerning the husband’s plans about where he would be living if the Court decided that the boys remain living with their mother. This passage was as follows:
“Mr [R] stated that he planned to live in the matrimonial home. He said no matter which way the judgment went “I want the house”. He went on to state that he never intended to move out of the house and in 1994 when he first moved he always intended to return. When I questioned him further about the implications for the boys Mr [R] said “what the children have told me, they don’t want to live anywhere but in the house”. I questioned Mr [R] about what would happen if the Court decided to give residence to Mrs [R]. Did this mean that he would expect the boys to move from their home? Mr [R] replied that with this Court decision Mrs [R] would have to “move out of the house with the children”. Not only did Mr [R] not appear to be able to envisage himself not retaining the house but he also appeared unperturbed that it might disadvantage the children.
The idea of shared residency was proposed to Mr [R]. He seemed uncertain about how this would operate. When it was explained to him that the boys could possibly live with him one week and their mother the next Mr [R] replied that he thought it was achievable. However, he added that he envisaged that the boys would eventually “end up staying with me longer and longer and slowly stay with me all the time.” (AB 38-39)
Then, her Honour said:
"To my mind, this last mentioned statement does not bode well for his commitment to facilitating contact between the children and their mother in the future. It tends to paint the picture of someone who is contemplating not adhering to future contact arrangements, packaged as the children’s wishes, with no indication that there would be any resistance to those developments from him. The counsellor was also of the opinion that this casts some doubt on his statement that he will facilitate contact between the boys and their mother and I agree with that assessment.
When these matters are considered along with what I believe to be the husband’s open disregard for the wife’s viewpoint, his apparent lack of respect for legitimate opposition she has expressed to unilateral decisions he has taken, and his apparent difficulty in acknowledging the validity of her role in the children’s lives, it becomes a not insignificant concern when contemplating the children’s future well-being were they to be placed in his primary care." (AB 39)
HER HONOUR’S CONCLUSIONS
At AB 41-42, her Honour said:
"Ultimately, the decision that has to be made from this background and these assessments must be that which is in the best interests of the children.
These are two boys, now aged 12 and 10 years, who have been in the primary care of their mother since their birth. She has borne a large part of the responsibility for their upbringing, including during times when the husband was absent by reason of his work commitments during the marriage. She continued in that role after their separation, including during his prolonged absences for nearly 2 ½ years while he lived in Bangkok. It reflects not insignificantly on her care that they have good relationships with all significant adults in their life and with each other and are apparently happy and well-adjusted. In all of the time since separation she has actively facilitated the children’s contact with their father. She has done this by allowing him to stay in the home on his return visits to Australia at his choosing and she has allowed the children to visit him while living overseas and to take holidays with him to other places. There is every reason for confidence therefore that she will continue to facilitate the children’s relationship with their father in the future through adhering to contact arrangements. In my opinion, she has a proper understanding of the importance of their father to the children. There is also every reason for confidence that she will continue to foster in the children a proper relationship between them and their father. As for the husband’s criticisms related to her standard of housekeeping, I do not regard this as having any real substance. What can be observed about the meaningfulness of that complaint, if there is any validity to it, is that the children remaining in her care was a matter of either agreement or acquiescence on his part for many years and it can hardly be seen as being of any solid importance now. Nor do I think there is any real substance in his complaint that she has left him out over the past 12 months by not informing him of matters related to the children’s welfare, such as matters of education, for the reasons already discussed.
For his part, the husband has always maintained an active involvement in the children’s lives consistent with his work commitments which have caused him to be absent for periods from time to time. During his prolonged absences from Australia over the last 2 ½ years, though his contact with them has necessarily been irregular, he has attempted to see them as much as possible and there can be no doubt of his commitment to them. This is also evidenced by the fact that he has recently re-arranged his work schedule to cater for their needs should they be living with him. Yet there are significant concerns, expressed above, about his perception of the role of the children's mother in their lives and the extent to which he is capable of properly encouraging a positive outlook in the children about their relationship with her. Moreover, his attitude in some of his dealings with the children’s mother do not provide a desirable role model for them and it would be most regrettable if they were to learn that it is acceptable to seek to achieve their own ends by following his lead of having no regard for the views and feelings of others."
As to the children’s wishes, her Honour referred to the husband’s view that these were at the heart of the case and his Counsel’s submission that those wishes were strong, that they have increased in strength over time, and that the children were longing to be with their father as they grew up. In considering the law in respect of children’s wishes, her Honour said:
“In determining residence issues, the wishes of a child are important and a factor for consideration along with other matters set out earlier. Yet the weight to be given to those wishes in any given case, of course, depends upon the particular circumstances presented. As was said by the Full Court in H v W (1995) 92-598 at 81,947:
“…whilst the wishes of children are important and should be given real and not token weight the court is still required to determine the matter in the child’s best interests and that may in some circumstances involve the rejection of the wishes of that child. The law to be applied in Australia is as stated by Hannon J in Doyle’s case, supra, and by Butler-Sloss LJ in Re P, supra, and in accordance with the statute.
Hannon J in Doyle and Doyle (1992) 92-286 at 79,128 said:
“If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper consideration as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.”
In Re P (Minor) (1992) 1 FLR 316 at 321, Butler-Sloss LJ said:
“We are dealing with the welfare of a 14 year old boy. The courts, over the last yew years, have become increasingly aware of the importance of listening to the views of older children and taking into account what children say, not necessarily agreeing with what they want nor, indeed, doing what they want, but paying proper respect to older children who are of an age and the maturity to make their minds up as to what they think is best for them, bearing in mind that older children very often have an appreciation of their own situation which is worthy of consideration by, and the statutory duty of a court, under the Children Act 1989, to pay close attention in ascertaining the wishes and the views of children of an age and maturity which may give valuable help to the Courts.” (AB 43)
Her Honour finally concluded as follows:
"The expressed wishes of the children is accepted and it is acknowledged that this is coming from boys who are aged 12 and 10 years, though [Alan] may not have the maturity at this stage to appreciate the full implications. Nonetheless, their preferences are of considerable weight in this case. Even so, that has to be placed in the overall context of this family. They have had irregular contact with their father for 2 ½ years until his return to Australia relatively recently and it is entirely understandable that they should be wishing to spend more time with him. No doubt they felt a loss of his company and missed the sort of relationship which he offered them when he was around. As I see it, the strength of the children’s expressed preferences has to be tempered by these considerations. It also has to be tempered by the fact that he is now more available to them than he was before and by the counsellor’s view, implicitly expressed, that the children’s desire to spend more time with him can be met by frequent and regular contact arrangements. Moreover, while the issue is a weighty consideration, it is tempered also by the children’s mother having given them good quality care to this point and by the added factor, discussed in detail above, of the husband’s limited insight into the effect of his conduct on the children’s future balanced development.
In the end result, I am of the view that the balance of the children’s best interests favours their remaining in their mother’s primary care, but having regular and frequent contact with their father. The orders will therefore provide for contact not only on alternate weekends and half of school holidays but also for the children to spend one evening each week with their father. I think also that the circumstances here warrant maintaining the limit of contact between the parties at changeover times by providing for only a brief attendance for those purposes along the same vein as the interim orders." (AB43-44)
THE GROUNDS OF APPEAL
The grounds in respect of orders concerning the children as set out in the Notice of Appeal are as follows:
“(1)Having found that the Court Counsellor accepted that both children were expressing a clear wish to live with their father (p. 18) (sic) . Her Honour gave insufficient weight to those wishes (see in particular p. 32). In the alternative, the learned trial judge misinterpreted those wishes such that there was a misapplication of the relevant principles.
(2)Her Honour should have found that the opinions and observations of the Counsellor with regard to the relationship of each party with the children were of little value having regard to the very limited observations undertaken by the Counsellor.
(3)Her Honour should have found that the children have a closer relationship with their father than with their mother.
(4)Her Honour erred in rejecting the clear evidence of the wife’s detached and uninvolved relationship with the children.
(5)Her Honour failed to analyse the wife’s contribution to and responsibility for the conflict between the parties during the period the parties resided under the one roof in late 1998 and early 1999.
(6)Her Honour’s conclusion that the husband lacked commitment to facilitating contact between the children and their mother was against the weight of the evidence.
(7)Her Honour erred in finding that there are significant concerns about the husband’s capacity to provide for the children’s needs to the extent that their mother is able (p. 23).
(8)Her Honour erred in disregarding the fact that the wife had not kept the husband informed about matters affecting the children (p. 28).
(9)Her Honour’s findings that there were significant concerns about the extent to which the husband is capable of properly encouraging a positive relationship with their mother was inconsistent with the oral evidence of the Counsellor as to that relationship (p. 30).”
The portion of Ground 1 that is underlined was an amendment to the ground made by leave at the commencement of argument before us.
Mr Knox provided the Court with additional submissions filed on 20 September 1999. Although he did not formally abandon other arguments, the only issue that he addressed during the hearing of the appeal concerned the treatment of the wishes of the children by her Honour and he effectively conceded that it was otherwise open to arrive at the other conclusions that she reached.
We agree with this concession and consider that her Honour's findings that are the subject of the other grounds of appeal were open to her.
It is convenient to reproduce the summary contained in paragraphs 1,2 and 3 of the additional submissions relied upon by Mr Knox:
“Summary
1. The substantial point in this appeal relates to the way the trial judge dealt with the evidence pertaining to the wishes of the children. Both children expressed the desire to remain with their father, the appellant husband. That evidence was not contradicted. The trial judge did not act on those wishes.
2. The appellant submits that the evidence as to the wishes was either misunderstood or misapplied by the trial judge. The consequence of that approach meant that there was a mistake of fact and a consequential misapplication of the correct legal principles. This mistake means that the exercise of the judge’s discretion in evaluating the section 68F factors miscarried.
3. Further, it would be impossible for the Full Court to determine how the discretion should have been exercised. Accordingly, the Court can and should set aside the decision and remit the matter for a re-trial.”
HER HONOUR'S TREATMENT OF THE CHILDREN'S WISHES
In developing his argument Mr Knox submitted that the importance of the wishes of children and the weight to be given to them has been settled since the decision of the Full Court in Harrison and Woollard (1995) 18 Fam LR 788, (cited by her Honour as H v W (1995) FLC 92-598).
He said that the case made it clear that children's wishes are important and should not be departed from where they are soundly based and have been expressed without influence from either parent and are expressed against a background of particular facts and circumstances.
In our view, this statement is too wide and does not represent the effect of the decision in Harrison and Woollard. The Full Court in that case stressed the importance of trial judges giving proper weight to children's wishes but it did not say that they should not be departed from.
In that case Fogarty and Kay JJ said:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally." (FLC at 81,944; FamLR at 797)
Their Honours expressed approval of the statement by Hannon J in Doyle and Doyle (1992) FLC 92-286 at 79,128 where his Honour said;
“If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.”
Their Honours continued at FLC 81,947; FamLR 800:
“As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.”
In the same case, Baker J made an extensive examination of the literature relating to the evaluation of children’s wishes. His Honour said at FLC 81,967-8; Fam LR 825:
“In my opinion, a child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Further more, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the Court should give effect to such wishes.
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.
I am not advocating that a trial Judge should automatically act upon the wishes of children, since the Court’s duty is to act in the best interests of the child. Rather, the goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of children in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s64(1)(b) of the Act [now s68F(2)(a) since the commencement of the Family Law Reform Act 1995].”
It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so
Mr Knox further submitted that her Honour had misunderstood what the children were saying when she commented, after considering the submissions of Counsel for the husband as to the wishes of the boys that those wishes were not to live with their father, that it was "entirely understandable that they should be wishing to spend more time with him". (emphasis added) He said that this indicated that her Honour had made a mistake of fact in that the expressed wishes of the children were not that they should spend more time with their father but that they should live with him.
We are satisfied that her Honour did not misunderstand the boys' expressed wishes nor make any mistake of fact in relation to them. Indeed the evidence of the Counsellor was that both boys indicated to her that their reasons for wanting to reside with their father stemmed from the lack of time they have had with him over the last few years (AB 421).
As we understand it, there was evidence (AB 353) which her Honour accepted that their expressed wishes were to live with the husband. However she took the view that those wishes should be tempered by what her Honour considered to be the entirely understandable reason that they wanted to spend more time with him, given the circumstances of their past separation from him. We think that this emerges clearly from the passage from her Honour's judgment containing the above quoted statement that appears earlier in these reasons and that it was perfectly open for her Honour to take this view on the evidence before her as hereafter appears.
Her Honour also considered that their expressed wishes should be tempered by the fact that the husband was now more readily available to them in Australia and that their wish to spend more time with him could be met by more extensive contact arrangements than had been the case in the past. Again, this is a finding that was perfectly open to her Honour.
Although these findings were criticised by Mr Knox they were fully supported by the evidence of the counsellor, Ms [G] who was asked by her Honour about the impact on the boys and their likely response if effect was not given to their expressed wish to live with their father. Ms [G] replied:
"Yes. My feeling is, your Honour, that if - the boys want to spend more time with their father there is no doubt about that and my feeling is that that stems from the fact that they haven't had a lot of time with him. The fact that he is now going to be available to them much more regularly because he'll be in the country and he'll be working from 9 to 5, will satisfy the boys to knowing that they'll be able to spend more time camping and do those things with their father. I believe that their need to spend more time and go camping with their father stems from the deprivation of the time they've had with their father over the years and I think that they will respond quite well to this." (AB 359)
Ms [G] went on to say that she felt that the boys would cope with a decision to remain living with their mother provided that there was sufficient opportunity to spend time with their father. She outlined the need for flexibility and suggested a contact regime of the type in fact ordered by her Honour.
Mr Knox was critical of her Honour for not taking this matter further with the witness. We are unable to accept that proposition. The evidence was given at the end of the husband's Counsel's cross-examination of Ms [G] and it would have been open to him to seek leave to ask supplementary questions had he wished to do so. He made no such application. Her Honour obviously regarded the issue as important, but in our view she was not under any obligation to pursue the matter further than she in fact did. She explored the issue and the counsellor expressed an unequivocal view concerning it, which her Honour eventually accepted, as she was entitled to do.
Her Honour indicated that in considering their wishes, she also took into account the good quality of care provided by the mother and the husband's limited insight into the effect of his conduct on the children's future balanced development. In taking these matters into consideration, her Honour was doing precisely what the law required her to do. In determining the weight to be given to children's expressed wishes it must be borne in mind, as her Honour did, that while they are an important factor, they are not the only factor to be considered in determining their best interests.
Mr Knox was critical of the fact that her Honour did not attempt to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others and cited the reasons for judgment of Baker J in Harrison and Woollard at FamLR 825 (FLC 81,967-8) in support of this proposition.
However, while those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. 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 any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
When Baker J referred to the "validity" of the child's wishes in Harrison and Woollard we do not understand him to have confined such a consideration to factors such as whether the wishes of the child were unsound, founded on improper considerations or influenced by others. In our view, his Honour was there referring to the overall validity of such wishes against the particular factual background found by the trial Judge in the case in question. If his Honour meant anything different then we are unable to agree with him. However, when the relevant passage is read in context, we do not think that his Honour intended to confine the inquiry in the manner suggested by Mr Knox.
Mr Knox went on to submit that because of what he said was a mistake of fact on the part of the trial Judge in considering the children's wishes, she then misapplied the principles laid down by the Full Court in Harrison and Woollard. However, he conceded in argument if there was no mistake of fact by her Honour, and we have already found that there was no such mistake, then it could not be said that she had made a mistake of law.
We are in any event satisfied that her Honour did not misapply the law. She gave specific consideration to the principles laid down by the Full Court in that case and in cases such as Re P (a minor) (Education) [1992] 1 FLR at 321 per Butler-Sloss LJ (as she then was). The trial Judge was obviously conscious of factors such as the age and degree of maturity of the children and she gave very real and appropriate consideration to their wishes. However it is not the law that those wishes are determinative of the outcome which may be overridden by other factors relevant to the determination of the child's best interests.
We agree with the submission of Mr Knox that in determining cases such as this, what is important is the quality of the respective parenting capacities of the parties, the parties' respective proposals for the children and the need for stability in the lives of the children. In our view, this is precisely what her Honour considered in arriving at her decision.
Before leaving this matter we would make an observation about the Counsellor's evidence in response to her Honour's question about the impact on the boys and their likely response if effect was not given to their expressed wish to live with their father. It would appear that the Counsellor's response was an opinion formed on the basis of her professional expertise rather than specific statements made by [Mel] and [Alan] during her interview with them.
Most properly, the Counsellor's report makes it clear that in asking each boy whether he had a preference as to where he would like to live, she informed him that he did not have to answer the question if he found it uncomfortable to do so (AB 418-419). It does not appear, however, that a question in similar terms was asked along the lines of how each boy would feel if the Court did not come to the same conclusion.
In our view, it would seem generally desirable that authors of family reports ask such a supplementary question where children do feel comfortable to express a preference on a matter before the Court. The inclusion of such information as well as the Counsellor's assessment of it in family reports is an aid to better understanding the wishes of children and the process of giving weight to them.
Our remarks are also applicable to child representatives. Their role requires them to "inform the Court by proper means of the children's wishes in relation to any matter in the proceedings" - see P and P (1995) FLC 92-615; A v J (1995) FLC 92-619. We consider that it would also be desirable for the child representative to arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes, provided of course that the child is comfortable to express a view.
FORM OF HER HONOUR'S ORDER
Mr Knox was also critical of her Honour for not considering the making of a "residence-residence" order or an order for shared parenting. The short answer to this contention is that there was no ground of appeal directed to these issues, nor did any party seek orders of either type.
The Counsellor, Ms [G] did raise a shared parenting order as an option (see AB 415), albeit without great enthusiasm. Her Honour raised the issue during Counsels' submissions, but no one pursued it.
Given the concession made by Mr Knox in relation to the other grounds of appeal we do not propose to deal with them in any detail.
It follows therefore that the appeal should be dismissed.
COSTS OF THE APPEAL
In relation to the costs of the appeal, we propose that either party should be at liberty to make an application in relation to such costs within 21 days. We will make the necessary directions.
ORDERS
1. That the appeal be dismissed.
2.(a) That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal within 21 days of the date hereof.
(b)That the other party have a further 14 days in which to make written submissions in answer thereto.
(c)That the first mentioned party have a further seven (7) days in which to make any written submissions in reply thereto.
(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
I certify that the previous 67 numbered paragraphs are a true copy of
the edited reasons for judgment delivered by this Honourable Full Court.
Danny Sandor
Senior Legal Associate to the Chief Justice
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