S and D - [2003] FMCAfam 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & D

[2003] FMCAfam 572

FAMILY LAW – Contested residence – wishes of children – relationship of parents – capacity of parents – proper needs – mother disregarded previous orders – charge over property.

Family Law Act 1975, ss.60B, 65E, 68F

Applicant:

P S S

Respondent:

A M D

File No:

MLM 5142 of 2001

Delivered on:

22 December 2003
(Reasons Published 23 December 2003)

Delivered at:

Melbourne

Hearing dates:

16, 17, 18 & 19 December 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Ambrose

Solicitors for the Applicant:

Shane Balkin & Associates

The Respondent appearing in person

Counsel for the Child Representative:

Mr O’Connell

Solicitors for the Child Representative:

Roger O’Halloran & Co

ORDERS

That the mother and father be jointly responsible for the long-term care, welfare and development of the children of the relationship, D S S born 25 January 1994 and D R S S born 13 May 1996.
That each of the mother and father is solely responsible for the short-term care, welfare and development of the children during the time that the children reside with each of them.
That the children reside with the father as follows:
(a)from the date of this order until the day prior to the father returning to work after his current leave;
(b)during the Easter T school holidays;
(c)during the T school term holidays;
(d)commencing with the 2004/2005 school summer holidays, for a period equal to half the T school summer holidays commencing on 26 December in each year;
(e)for the mid-term weekend in each of terms two and three of the T school year.
That the children reside with the mother at all other times.
That while the children are residing with the mother the father have contact with them by telephone each Saturday between 6 pm and
6.30 pm T time.
That while the children are residing with the father the mother have contact with them by telephone each Saturday between 6 pm and 6.30 pm T time.
That the father is to purchase the airline tickets for the purpose of the children residing with him pursuant to paragraphs 3 (a), (b), (d), and (e) and for the purpose of the children travelling from L to M to reside with him to paragraph 3 (c).
That the mother is to purchase the airline tickets for the purpose of the children travelling from M to L for the purpose of returning to her after residence with the father pursuant to paragraph 3(c).
That each party is to advise the other of the purchase of airline tickets and details of flight times not later than 14 days prior to the date of travel.
That in the event that the mother on any occasion does not purchase airline tickets for travel from M to L as required by paragraph 8 of this order, paragraph 4 of this order is suspended and the children are to reside with the father until the mother does purchase airline tickets and notify the father.
That the children are to continue to attend the W L primary school
That the children are to attend as soon as practicable upon an educational and child psychologist approved by the Principle of L Primary School and the father and the Child Representative are to be advised of such attendance and the Child Representative shall have authority to contact the said psychologist.
That within 14 days of it being submitted to her the mother sign and return to the solicitors for the father, an equitable charge prepared by the solicitors for the father and in a form approved by the Registrar of the Court, over the property owned by her at 3 E Place R T as security for the costs of the father and the Legal Aid Commission of Victoria or Tasmania in funding a child representative incurred in pursuing contravention and recovery proceedings in the event that the mother does not comply with any of the provisions of this order.
That if the mother fails to comply with paragraph 13 of this order, pursuant to s.106A of the Family Law Act 1975 the Registrar of the court is appointed to execute the charge in the name of the mother and do all acts and things necessary to give validity of operation to the charge. An affidavit by the solicitor for the father that the mother has failed to comply with paragraph 13 of this order shall be sufficient evidence for the purpose of the Registrar exercising the power given by this paragraph.
That in the event that the mother purchases prepaid airline tickets for the children to travel from M to L before Christmas Day 2003 and to return from L to M not later than 27 December 2003, and advises the father of times and flight details, then the mother have contact with the children between the times of the flights.
That the order appointing the Child Representative be discharged as from 21 March 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 5142 of 2001

PS S

Applicant

And

A M D

Respondent

And

CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

This application concerns residence arrangements for the children of the relationship of the parties, D S S born 25 January 1994 and D R S S born 13 May 1996.
The father was born on 3 February 1962 in M. He is a Punjabi Sikh. The mother was born on 6 June 1964. She has a child A aged 19 by another relationship. She is a Christian and attends the V church in L, which appears to be a Pentecostal church. The father is aged 41, the mother 39. They met in N Z in 1989. Both moved to A in 1992 where they cohabited, first in M and then in G. Cohabitation ceased before the birth of the elder child, although the relationship continued resulting in the birth of the younger child. The circumstances of the relationship are the subject matter of some dispute. The father purchased land at O G and built a house on it. He says he did so, so that there would be somewhere for the mother and children to live. For a time the mother resided there as a tenant paying rent. The children resided with her.
What is significant in this case is the history of court proceedings and of contact. In May 1999 an order was made in the Magistrates Court of Victoria at G for supervised contact each Sunday between the hours of 2 p.m. and 5 p.m. at the mother's home. The order provided for the contact to be in the absence of the mother, but she remained in the home. In June 1999 further orders were made for two (2) hours contact a week supervised by a third-party. The father paid a supervisor and there were several occasions of contact.
The matter was transferred to the Family Court of Australia at M and on 6 August 1999 a hearing was held before Registrar Raby. An order was made for un-supervised alternate weekend contact. No contact took place in accordance with that order. A pre-hearing conference was held on 28 October 1999. Interim contact orders were made by consent providing for contact each week for four (4) hours on one weekend and seven (7) hours on the next. That contact did not proceed. The application came before the court on 29 November 1999 listed as an interim hearing. The father withdrew his application. His reason was that he was frustrated by the mother's attitude. He had incurred a significant legal debt and he could not afford to pay to institute contravention proceedings.
The current proceedings were commenced in the Family Court and came before Registrar Raby on 14 March 2001. The mother did not appear but did on the adjourned date of 10 May 2001. Orders were made for supervised contact at Bethany Family Services for two (2) hours each fortnight and that the parties attend confidential counselling.
A counselling session was appointed for 21 June 2001. The father attended but the mother did not.
The proceeding was transferred to the Federal Magistrates Court and listed in the G sittings commencing 20 August 2001. At that time the mother was represented. A child representative was appointed.
Contact took place at Bethany, but not in accordance with the orders. The mother would only supply the children for one (1) hour of contact not two (2) as ordered and despite the centre recommending the extension. The mother attempted to impose conditions. Eventually she stopped taking the children to the contact centre.
The father filed a contravention application. The mother did not attend initially, but after several adjournments it came before Federal Magistrate Hartnett on 13 December 2001. The mother and father appeared in person and the child representative attended. The mother was fined $300. This occurred after Her Honour had given the mother the opportunity of entry into a bond or making an undertaking. An order was made for daytime contact on several specified dates in December 2001, January 2002 and February 2002.
The mother did not comply with this contact order. The reason she gave in evidence before me was that she had been planning to move to T for a considerable period of time. She moved in January 2002. She did not tell the court on that day nor did she tell the child representative of her change in residence as an earlier order required her to. Her explanation is that if she had the father would have stopped her going.
The father did not know of the move to T. All he knew was that the mother and children had disappeared. Application was made for a location order and eventually, in December 2002, the mother's current address was released to the father and he discovered that she had moved to T.
On 11 February 2003 Federal Magistrate Connolly made an order that the mother deliver the children to the court on 31 March 2003. The mother did not comply and on 31 March 2003 His Honour made a recovery order.
The recovery order was executed on 8 April 2003 in L, T and the children were placed in the father's care. He brought the children to V where they remained with him until 28 April 2003.
After the execution of the recovery order the application came before the court on 14 April 2003. An order was made for the parties and children to attend Colleen Crutchfield, psychologist, for the purpose of the preparation of a family report. The application was adjourned to

28 April 2003.
On 28 April 2003 the mother and father and the child representative were represented. Consent orders were made that until further order the children were to reside with the mother and there be contact with the father during school holidays and several intervening weekends and telephone contact each Saturday from 6:30 p.m. to 7:30 p.m. For the purpose of contact the mother was to purchase the airline tickets for the children to travel from L to M and the father for the return journey.
The children returned to L with the mother. The first contact period was from 30 May 2003 to 15 June 2003 and took place. The subsequent ones did not. The mother's explanation is that she could not afford the airfares. The telephone contact did not take place. The mother says the father did not ring. The father said he did but the phone was always engaged.
The father filed a further contravention application and applied for residence. Both applications came before the court on 16 September 2003. The mother did not attend. Federal Magistrate Hartnett had the mother contacted by telephone and conducted a hearing. Her Honour made orders for the father to purchase prepaid return air tickets between L and M and for the mother to place the children on the aeroplane for the purpose of contact for a period of 14 continuous days. The mother complied with that order and the father had contact for 14 days from 18 September 2003.
The final hearing of the various applications came before me on

16 December 2003. In a report in April, Ms Crutchfield had recommended reassessment in some three (3) or four (4) months’ time. The child representative made application to me on 9 December 2003 for an order that the children be brought to M and for the children and the parties to attend upon Ms Crutchfield the purpose of an updated report. The child representative’s application was served upon the mother. She did not appear. The father did. The child representative informed me that he had been in contact with the mother and it was not clear to him whether she would appear at the final hearing.
I made orders for the father to purchase tickets for travel from L to M, for the mother to be advised, that the mother place the children on the aeroplane and that the children have contact with their father from 15 December 2003 to 19 December 2003 or further order. I ordered that the parties and the children attend upon Ms Crutchfield for the purpose of preparation of an updated family report to be given orally if the preparation of a written report was not possible. I ordered that the father bring the children to the child minding centre of the court on the hearing date, 16 December 2003.
Ms Crutchfield saw the children and the father on 15 December 2003. The mother came to court on 16 December 2003. The case could not proceed immediately because of a part heard case, but that case was interrupted to enable Ms Crutchfield to give her oral report. Arrangements were made for Ms Crutchfield to see the children with the mother. Later in the day she gave a further oral report.
The father's initial application had been for contact. He now seeks residence. He is employed in rotating shifts as a process worker. The normal day shift is 7 a.m. to 3 p.m. He has arranged with his employer to work a shortened day shift from 9 a.m. to 3 p.m. which will enable him to care for the children. He had been married in N Z. He admitted that that was a marriage of convenience to enable him to obtain N Z citizenship.
Last year he travelled to I where he married a 20-year-old Punjabi Sikh. The marriage was arranged by his and his wife's parents. He met his wife a short time before the wedding and has spent only a few weeks with her after the wedding. An application for a visa to enable her to come to A has been applied for. The husband expects her to arrive in February or March 2004. Once she arrives he will be able to return to full-time day shift. His wife will care for the children at breakfast time and before school and he will then be available to collect them after school. His wife does not speak English.
He now would prefer a residence order because of difficulties he has with arranging his holidays. He has four (4) weeks leave. He has worked for his employer for nine (9) years. He will be eligible for long service leave after ten (10) years and he has spoken to his employer to see if arrangements can be made to bring some of the long service leave forward. However, he will have difficulty in always arranging leave if the children are residing with the mother in L and he has contact during school holidays. Hence, even if sufficient safeguards could be put in place to ensure that the mother complies with contact orders, he would prefer that the children reside with him and spent holidays with their mother.
The mother proposes that the children reside with her and spend T school holidays with their father and half summer holidays.
The mother alleged that during their relationship the father had been violent, drank to excess, used and dealt in marijuana, including selling it to her son by another relationship, A. She said that when the boys were younger he had touched them inappropriately. The father denied the violence except for one occasion. He said that he drank but not to excess. He acknowledged he had used marijuana but not habitually and he had not been a dealer. He denied any inappropriate touching of the children.
A gave evidence. There had been difficulties in his relationship with his mother as he grew up. Now very supportive of his mother, A, in earlier years, had left home on occasions, sometimes of his own volition and sometimes he had been put out by his mother. He lived with the father during one of the periods when he had been put out by his mother. He alleged that the father was purchasing marijuana by the ounce, packaging it out into one (1) gram lots and selling it, including selling of credit to him. He said he had been with him when he did the purchasing. He gave evidence of violence by the father to the mother and in particular described two incidents in some detail.
The mother's evidence cannot be relied upon. She lacks credibility. Two instances are sufficient to demonstrate this. The first is that already described when she did not tell the court or the child representative that she was moving to T. The second occurred during her evidence. She said that she had not agreed to the orders made on 20 April 2003. She said that the solicitor had gone into court and she had not. She said that the solicitor had agreed to the orders, she had not and she was annoyed with the solicitor. She was shown the handwritten minutes of order and acknowledged that she had signed them. She then said that she had signed them because she wanted to get the children back, but she did not agree with the orders.
A was definite in his evidence. However, he admitted that he had been a heavy user of marijuana. Obviously he wanted to support his mother. He gave his evidence in chief with the assistance of notes which almost certainly had been prepared to some extent in conjunction with his mother. No objection was taken to him giving his evidence in this way.
Given the conclusion I have reached about how residence should be divided it is not necessary to make a finding about these allegations. Given the seriousness of the allegations and the difficulties with the evidence I do not propose attempting to do so.
While a mother's formal position is that the father should have contact, her attitude in the past shows that she would prefer that he did not. The only way contact was achieved was by way of a recovery order. The mother, as expected, found this a very upsetting experience. It is only the fear that she might lose the children that has made her comply with orders at all since then.
Ms Crutchfield saw both parents and the children in April 2003. She spoke by telephone with the principal of the children's school and with A.
The mother told Ms Crutchfield that she was happy for the father to have weekend access to his children providing there were safeguards in place such as drug testing and prohibition against him removing the children from the country. Ms Crutchfield noted that the mother did not appear to acknowledge the past history in which previous arrangements and court orders had been largely ignored by her. She did not appear to appreciate that the recovery order had been brought about by her own failure to abide by court orders. She believed that she did the right thing, that the children's well-being was always uppermost in her mind and that moving to T was the best thing for the children. She did not to appear to appreciate that the father had rights in relation to the children.
The mother does not portray the children's contact with the father as a positive experience. Contrary to that, Ms Crutchfield observed that the father interacted with the children in an appropriate and caring manner. They enjoyed their time with him.
In her oral report after seeing the children on the 15 December she said the children said they liked visiting their father for school holidays. They would like to see more of him and were quite happy with arrangements as they were. The eldest child felt he could live with either mum or dad as long as he had frequent visitations with the other party. Both children were very firm that neither parent should live near each other.
As well as her reports Ms Crutchfield gave oral evidence and was cross-examined by counsel for the mother, counsel for the child representative and by the mother. Ms Crutchfield was quite clear in her evidence that the children needed to see their father. The T school year has three terms. She said that more frequent contact than the school holidays was needed and she recommended that Easter and intermediate weekends as well. She said that if the children resided with the father they would need very frequent contact with the mother. Her recommendation was that the children should reside with the mother, there be frequent, at least weekly telephone contact and regular visits by the children to the father. She recommended that the mother accept professional counselling and therapy for herself and the children. The children should preferably see an educational or child psychologist.

The application must be decided in accordance with the relevant provisions of the Family Law Act 1975. Section 60B sets out the objects of Part VII of the Act. Section 65E provides that in making parenting orders the paramount consideration is the best interests of the children. Section 68F sets out matters which the court must consider in determining the best interests of the children.
The relevant s.68F matters are as follows.

The wishes of the children

The children have expressed a wish to see both parents frequently.

The relationship with the parents.

The mother is the primary carer of the children and has been for all their lives. The father has now cared for the children for two reasonably extensive periods, in April after the recovery order and for a fourteen (14) day period following the order made on 16 September. They have been in his care since arriving in M on 15 December. Ms Crutchfield's evidence shows that the children have a good relationship with their father, enjoy seeing him and that it will be to their benefit to develop the relationship.

The likely effect of any change in the children's circumstances.

Ms Crutchfield spoke with the principal of the school attended by the children. The school is aware of some difficulties in the children's circumstances and has recommended counselling. The children are settled at the school and have support from the school. In addition, the pastor of the church attended by the mother with the children provides the mother with support. If the children were to reside with the father, they would be away from their primary carer and would need to re-establish themselves in a new school and in new surroundings. Both school and Ms Crutchfield have recommended counselling for the children arising out of the circumstances they are in at the moment. The change of residence would be another unsettling factor.

Difficulty and expense of contact

Wherever the children are residing they will have to travel between L and M for contact with the other parent. The difficulty and expense will be the same, except that the father has a higher income. This is a neutral factor in determining the residence issue.

The capacity of each parent to provide for needs

The mother has been providing satisfactorily for the children's needs, except for contact with their father. The father has shown that he is capable of looking after the children. When he brought them to M in April he arranged for them to be enrolled in school. He cared for them satisfactorily. The children have enjoyed their time with him.
The father proposes caring for the children by reducing his working hours. Once his wife arrives she will assist. That means that a part of the day-to-day care of the children will be undertaken by a 20-year-old who will be adjusting to a new country and who does not speak the same language as the children. Otherwise nothing is known about her. The father has spent only a few weeks with her and could say no more than that he got on well with her and they agreed to marry.

The need to protect the children from harm

The mother alleges inappropriate behaviour by the father in the past and violence towards her sometimes in the presence of the children. As I said, I do not make any findings about these matters. The father has cared satisfactorily for the children. There is nothing to suggest that the children now would be exposed to harm with either.

The attitude to the children and parenthood

The mother's attitude to the father having contact with the children is of concern. She has not complied with contact orders in the past. She did not comply even after a recovery order had been made. She now proposes that there be contact but I consider that is mainly because she realises that if she opposes there being any contact an order will be made that the children reside with the father. A residence order can only be made in her favour if sufficient safeguards are in place to make it likely that the mother will comply with contact orders.

Family violence including orders

The mother had obtained family violence intervention orders in the past. It seems that the father was unaware of some of them. There are no current orders. If anything happened it is now some years in the past. I have made no finding concerning violence, and I consider that even if something did happen is now not relevant.

Likelihood of further proceedings

If a residence order was made in favour of the father there would be less likelihood of contravention proceedings being taken in the future. The father is likely to comply with orders. The mother has shown that she will not unless she thinks she is at risk of losing the children. There is much more likelihood of further contravention proceedings if the children are residing with the mother and the father is relying on the mother to comply with contact orders so that he may see the children.

Conclusion

The mother is the primary carer. The father can provide adequate care but there is the uncertainty about the care arrangements and how they will work when his wife arrives in A. The children already have had an unsettled year. They would be disrupted further if they moved to live with their father in G. Overall, as long as sufficient safeguards can be put in place to ensure that the mother complies with contact orders the children's best interests will be served if they remain residing with the mother and spent substantial periods with their father.
The father's position can be strengthened by making residence/ residence orders. The mother gave as her reason for not sending the children on contact as required by the order of 28 April 2003, except for the initial period, that she did not have the money to pay the airfares. Those orders required her to pay the fare from L to M. Protection against that happening again can be made by providing for the father to pay the airfare from L to M and the mother from M to L and providing that the father's period of residence will be extended if the mother does not book and pay for the airline tickets to return the children.
Christmas is important to the mother. It is not to the father. Contact will therefore be for all of the T term holidays, after the Christmas holidays commencing on Boxing Day, Easter and the weekend midway through each of the second and third terms. The father's financial position is stronger than the mother's is. A reasonable sharing of the cost is for the father to pay for Christmas, Easter and mid-term contact and fares from Lto M for term holiday contact. The mother is to pay the return airfares for term holidays.
The children are currently in M with the father as his annual holidays have commenced. The children will therefore reside with the father until the end his annual holidays. If the mother wishes the children to return to her for Christmas Day she will need to arrange for and pay airfares.
The father has paid substantial legal expenses. In the circumstances of this case it is reasonable to require the mother to give the father security for any costs of pursuing contravention and recovery proceedings if the mother again breaches these orders. The mother owns a property in L, there will be an order that she provide a charge over the property in the amount of $10,000 as security for the costs of the father and/or the Legal Aid Commission of Victoria in funding the child representative. I will make provision for the Registrar of the court to sign a charge if the mother does not do so.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: