Sawyer & Chandler

[2007] FamCA 50

FAMILY COURT OF AUSTRALIA

SAWYER & CHANDLER [2007] FamCA 50

FAMILY LAW - CHILDREN - With whom a child lives - Child's views - Best interests of a child

APPLICANT: MR SAWYER

RESPONDENT: MS CHANDLER

FILE NUMBER: BRF 2230 of 2005

DATE DELIVERED: 31 January 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: BELL J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers of Counsel

SOLICITOR FOR THE APPLICANT: N R Barbi, Solicitors, of New Farm

COUNSEL FOR THE RESPONDENT: Mr Moore of Counsel

SOLICITOR FOR THE RESPONDENT:

Ryan Lawyers of Gatton

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Davies of Counsel

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Forest Glen Lawyers of Withcott

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2230  of 2005

MR SAWYER

Applicant

And

MS CHANDLER

Respondent

REASONS FOR JUDGMENT

1. Mr S, hereinafter referred to as the applicant, and Ms C, hereinafter referred to as the respondent, commenced a relationship and commenced cohabitation in or about the year 1994.  From such relationship a child was born, being J, in February 1997.  The parties separated in October 2002.  Subsequent thereto, for a period the child remained with the mother - that the father spent a considerable amount of time by way of contact with the child on a fairly regular basis. 

2. He, however, commenced a relationship with a Ms G, I think in 2001, if my memory serves me correctly.  That relationship has now burgeoned into a full-time partnership and it appears at that time, I think, both parties agree, that the contact arrangements between the father and the mother tended to become much more fragile and there have been disputes between them, not only as to the length of time that the father was to have contact with the child, but where the child was to be picked up.  There are allegations, and counter allegations, as is the case in cases in this Court, of person not doing enough by the child; another person not doing enough; they have been unable to agree on the pick up points brought about on one hand by the financial instability of the mother; on the other hand as a result of the father's job. 

3. The mother remained at an area, I think it was B, until she unilaterally decided to move to L.  She has given evidence that, in fact, the reason for this was that she could find accommodation more readily available to her in L, and I think, it was closer to her brother, F.  She moved there and this caused the Court to be enlivened - the Federal Magistrates Court to be enlivened, and Baumann FM, in or about the end of July 2005 ordered that for a period, until the matter came back before the Court that J was to live with the father, and did so until August when an order was made putting the child back in the possession of the mother. 

4. The Federal Magistrates Court had, of course, been enlivened prior to this on 23 January where an order was made by FM Baumann again, that the child live with the mother - or resides as it was in those days - with the mother and the father have contact each alternate weekend and each alternate Monday night and for half the school holidays.

5. It is alleged by the father that he has made reasonable requests to the mother to enable him to be able to pick up the child at various areas more convenient to him, which have been refused and comparatively recently that the mother has, as a result of her getting part time work, which she works between 8 to 38 hours per week that the pick up time for the child has moved until Saturday morning.

6. The matter was the child was ordered to be represented by, at that time, a child's representative who is now, of course, known as the independent children's lawyer, and various reports have been made.  May I indicate that this matter was set down for three days and I compliment the parties and their respective legal advisors that the matter was finished within a day and a half. 

7. They, quite properly, decided not to call physically, Ms T, who is the family reporter, nor a Ms D who was with the Department of Child Safety, if that is the name that it is still using - they do tend to change it quite frequently. 

8. I have to look upon the protagonists in this case, that is the father and his present partner, Ms G.  The father came across, and I think Ms T agrees with me on this, as a person with - lacking, perhaps, in warmth.  He is a person, according to Ms T, who - in her opinion, and I think I support her in this - is possibly lacking in affection.  It may be that he is a person who does not have an affectionate bone in his body or he may affeered to show what he may consider to be some weakness in being affectionate to various people.  He is stiff, he is a bit stiff.  He gave the impression of being quite concerned and nervous in this Court. 

9. Ms G is a different kettle of fish.  She is a person who was - I do not know if she still is - a registered nurse.  She has been a foster carer, for at least 15 years, not only in Queensland, but I think in New South Wales.  She fostered some 150 children during that time. 

10. At this stage she is fostering with the assistance of the applicant father, four children, and has done so since 2003.  Regrettably, the children are all suffering ADD, and it appears that the youngest now has been diagnosed, and quite properly this was objected to by Dr Sayers, of counsel, for the applicant, with Aspergers Syndrome, notwithstanding the fact that the statement came from one his client's witnesses.  But as he quite properly pointed out, there is no medical indication that the child is suffering from Aspergers.  Notwithstanding the fact that it was accepted that the children were suffering ADD. 

11. That, in itself is, in my 30 years experience on this Bench, is indicated to me that the children would not be easy to handle, although as I understand that they tend to be somewhat controlled as and by way of medication.  They are exceptionally difficult.  They are in receipt of something in excess, I think, of $1600 per fortnight and Ms GS, as she is now known, has, in fact, set out in her affidavit the way in which those moneys are expended, and it appears that they are on a negative balance albeit minimally.

12. Ms T, as I have said, has prepared three reports:  they are one filed on 18 August 2005; one of 1 February 2006; one on 31 July 2006.  Might I incorporate, in these my Reasons for Judgment her setting out of the history of this matter which appears at her report in paragraphs 6 to 15 inclusive of that report.  In that report she investigates in a proper manner, in my opinion, the attitude of the parties to the care of the child, J; J's attitude towards both parties and her attitude towards the children, the foster children of Ms GS. 

13. It appears at that time there were difficulties on the part of J relating to these children whom, according to her, did tend to spit at her and generally treat her in a manner which was not proper in all the circumstances.  At that stage Ms T was of the opinion that the child should remain with the mother and notwithstanding concerns she had.  Another report, the one I referred to, filed 1 February 2006, the interviews took place at the end of January - the interview took place on 5 January 2006.  The interview was with the father and Ms GS, J, and she observed the child with the foster children, being A, 9; E, 8; H, 6; and M, 3 - M is the allegedly Aspergers child Syndrome.  And she observed the father and Ms GS with the child.

14. The mother was not interviewed at that time. I do not have full evidence to why not, but it was a time when the father, I think, was spending the Christmas holidays with the child, the child was spending Christmas holidays with him, and as a result of that the mother was not interviewed.  However, she was, in the report, which was filed on 31 July 2006.  I say in passing of Ms T's report, filed 1 February 2006, indicates a shift in her view and the shift is that the child should go to live with the father and, generally, it appears to me that one of the reasons for this is that the child was exhibiting a great deal of distress and confusion, that the child had developed good bonds with the father and with the foster children - see paragraph 48.  She had a strong attachment with her father, which was different to the first report. 

15. And she was of the view - see paragraph 49 - that were the child to reside with the father she would benefit socially, psychologically, educationally, and physically.  She recognises that should the child be moved she would be likely to experience some distress in the transition.

16. The next report, as I have said, that was filed in this Court on 31 July and in that report she sets out that the interviews took place on 19 July over four hours and included interviews with Mr S and Ms GS; with Ms Y, with the mother; and observations of the father and Ms GS with the child; and observations of the mother with the child.  The child had changed, not so much since February, but had changed considerably since the year before.  She was no longer a bright and bubbly child.  She was loathe to have eye contact and I incorporate in these my reasons, the findings of Ms T in relation to the child.

17. Ms T was particularly affeered that the mother was starting to show signs of enmeshment or had been showing signs of enmeshment and that there was enmeshment.  She, at paragraph 56, says as follows:

    I maintain that the mother's focus is on ensuring that she gets all her own needs regardless of how that may inconvenience other, and importantly, with little regard for the father/child relationship.  That she wants to stick to the orders as they are written and not afford flexibility when the other party expresses a need for flexibility while at the same time expecting the father to bend to her requests regardless of the inconvenience.  In my view, it is indicative to an inequitable attitude to the parenting arrangements and demonstrates herself rather than a child focus.

18. She goes on to say in paragraph 57:

    I maintain the view if the child remains residing with the mother it is likely that she will continue to present problems with facilitating time with the father as long as she resides in [L] and the current changeover arrangements are practised.  Further and importantly, I am of the view that should the child remain in the mother's full time care she will be a risk of ongoing emotional and psychological harm as a result of the apparent enmeshed and co-dependent relationship the mother has had with the child, stemming from her own personal issues including, but not exclusive to her attitude towards the father in this issue.

19. What is the mother's attitude towards the father?  Her evidence was given, I considered in a somewhat dismissive and almost aggressive way.  She could see nothing to approve of in the father's conduct. She considered that he abusive of her on frequent occasions when asked what form this abuse took.  She was unable to remember it.  She said that at all times the father was abusive on the telephone.  I do not accept that. 

20. She indicates that she allowed the child, when the child was 4 or 5 years of age, to dominate her to such an extent that when the child was to be baptised the child, at that stage, indicated she did not wish - this is her statement - that she did not wish the father be present at the baptism.  It appears that the father has some antagonism towards the Catholic church or Catholic religion, but the child was the one who dominated the mother to such an extent that the father was not invited to the baptism.  This could have caused considerable angst. 

21. I note that Ms T does refer to this briefly, I think, in her first report when setting out the history of what took place between the parties.  Not only did she do that, but in May 2005, I think I am right, Dr Sayers - - -

    RECORDED  :   NOT TRANSCRIBED

22. - - - the confirmation - the confirmation and first communion took place, once again, according to the mother it was the child who dictated to the mother whether or no the father was to be present at such an occasion, which I am fully aware, in the Catholic church is of some importance to not only the church but, in particular, for a child who is coming to god.  I, myself am staggered that the mother saw fit to be, in effect, dominated by the child.  Obviously, the reason why she was dominated, in my opinion, is this is exactly what she wanted to happen and she took the easy way out. 

23. Another matter:  she was, once again, perhaps, encouraged - could I use a less inflammatory word as possible - by the daughter to pick which school she was going to go to after the moved to L at the end of 2005/early 2006; and the child picked S school, I think it was, a Catholic school in the L area.  I am not for one moment criticising S school or any other school that is in the area, but to me it seems surprising that the child was the one who chose what school she was going to go to without informing the father of the schools or the desire of the child to go to this. 

24. Another matter which concerns me is for a period in - as I have already touched upon - of Baumann FM's order of end of June 2005, the mother wrote a letter.  This letter is annexure 14 to the affidavit of the father.  This letter was intercepted by the father and the child never received it.  I am staggered that the mother, after having read it again - after having put to her that that was the letter that she wrote and readily accepting it, that should would say if she had the opportunity, she would write it again.  That letter, to an 8 year old - 8 or just - 8 year old child - in my opinion, would put enormous pressure upon this child.  Further evidence of the mother's enmeshment with the child.  Enormous pressure.  It was not written in a manner which was encouraging of the child in any way to develop a relationship between herself and her father.

25. It was a letter written by a mother who, obviously, was distressed but was so distressed that her own feelings overcame those of her responsibility and duties insofar as a mother is concerned.  I do not believe that it was essential that I go any further but to indicate that on the evidence before me I am more than satisfied of Ms T's concern in relation to the mother's enmeshment with the child are true, and this concerns me. 

26. I now must turn to the law, which has been changed since 1 July 2006, and I refer, in particular, those matters such as has been set out in the - is it reported yet, Dr Sayers - I do not think it is - - -

    RECORDED  :   NOT TRANSCRIBED

27. It was originally known as G but now known as Goode, Family Court file 1346 and it was delivered in Adelaide on 15 December 2006.  The Full Court, which consisted of Bryant CJ, Finn, Boland JJ, Judges of Appeal, in a lengthy judgment set out their views in relation to many matters which are set out in the Headnote, particularly, so far as the presumption of equal shared parental responsibility, which I have to consider, it being a presumption which has been put upon us by our political masters.

28. Overall, if I may say this, Goode, in relation to the presumption, indicates that should the Court be of the opinion that it is not in the best interests of the child then such presumption is discharged.  I am more than satisfied in a case such as this that a presumption of equal shared parental responsibility would not be in the interests of the child for many reasons, but I emphasise too the distance between the parties; the fact that the parties are unable to agree on even comparatively minor matters; and the unfortunate psychological dependency which the mother has upon the child.  And, consequently, I feel as though it is now at large for me to consider what is in the best interests of the child.

29. I, of course, have the primary matters to consider which are set out in section - which section is it, Dr Sayers - - -

    RECORDED  :   NOT TRANSCRIBED

30. - - - in section 60CC(2) which is that the benefit of the child:

    That the primary consideration exists of the benefit of the child of having a meaningful relationship with both of the parents and the need to protect the child from physical or psychological harm, from being subjected to or over exposed to abuse, neglect, or family violence. 

31. Now, to me it is, as I have always said, even more the political masters became, perhaps, obviously aware of it, that parents do not have rights as far as I am concerned, they have duties, and the duties have been spelled out in the various amendments to the Act over a period of some 30 years, I understand, 27 major amendments to the Act.  My maths may be out, they have always been suspect - but I am of the opinion that those matters - and I am directed to consider those as a primary consideration. 

32. What evidence do we have here that there would be - what evidence do we have here of the benefit of a meaningful relationship with both the child's parents?  It is quite clear on the evidence of Ms T, that she is somewhat affeered, and I think I have already referred to the paragraph in her third report - she is affeered that, in fact, the relationship between the father and the child will deteriorate if the mother's attitudes, to which I have referred, generally, and not in particular, will continue to carry on.  It is quite clear that the child is showing some evidence of emotional distress as a result of the pressures that have been brought to bear upon her by the mother.

33. I do not, of course, for one moment suggest that the father is a lily white and on the side of the angel.  I am sure that to a much lesser extent he, in fact, he either overtly or covertly - more probably, covertly - does bring some pressure to bear upon the child.  This child is only 9 - 10 next month - next week.  I think it is absolutely appalling that this child has amount of pressure put upon her to such an extent that she considers that she is the one who has to look after her mother, and I refer in particular to the episodes, the evidence of the episodes of the Christmas 2006 holidays where the child became somewhat disturbed as to what her mother was doing without her, and it was necessary for the father and Ms GS to take steps to ensure the child contacted the mother by way of telephone and she ascertained that the mother was all right and her conduct settled down.

34. The matter that I am concerned about is the psychological harm which, if we read section 66(2)(b) does not seem - it seems to be only psychological harm because of abuse, neglect, or family violence.  I do not think that is quite right.  I have to consider whether, in fact, this child is going to be subjected to psychological harm.  Ms T is of the opinion that she is already, and so am I.  She is tending to show her schoolwork is going off, it is not as good as what it was.  Her health does not appear to be as good as it ought to be.  Her teeth are a problem, and there is some suggestion that she is unhealthily fat and finds difficulty in keeping up with the kiddies in the acreage property in which the father and his present partner reside.  Equally, of course, the mother has a similar in which the child can play and enjoin her pets.

35. The subsequent matters thereto, are those set out in section 60CC(3) and they are particularly referred to at page 5 of my printout of Goode v Goode and set out under the heading Additional Considerations.  I am of the belief, after having Goode, not absolutely thoroughly but generally, I do not believe that it is absolutely essential for the Court to set out each and every one of the further additional considerations seriatim.  It is for me to decide upon those which concern me which have assisted me in coming to what will be an unfortunate decision for the mother. 

36. Insofar as the views expressed by the child, as was pointed out in the initial decision, initial report, she was of the view that she wanted to stay with her mother.  Subsequently, that has - she has resiled from that and at this stage does not make any clear indication as to with whom she would prefer to live. 

1. The nature of the relationship of the child - I have touched upon that.  The question of enmeshment:  it is quite clear from the evidence of Ms T that the child's relationship with the mother and, perhaps, to a lesser extent, Ms GS, has improved - if I said mother, I meant father - has improved.  Also the relationship she has with the foster children, which initially was not good. 

2. I am more than satisfied that the mother has not exhibited a willingness and an ability to facilitate and encourage a close and continuing relationship between the child and the other parent.  I am not going to enter into any in depth dissection of the evidence of the mother other than to say everything the child says seems to be accepted, so long as it is against the father, and there is nothing that the mother can say which would advance, in my opinion, the welfare of the child and encourage the child to have a good relationship with the father. 

3. I indicate, as an example, that she is of the view that Ms GS is cruel or is nasty towards, not only the foster children, but also to her daughter.  She indicates that on one occasion she rang J and there was some screaming in the background and when asked, J said, "Oh, that's just [Ms GS] putting of the kids to bed," or words to that affect.  She was disturbed - the mother was disturbed by the screaming.  I think I put to her was she aware of what ADD children are like, and I do not know if she answered the question.  In my years of experience ADD children who tend to have hissy fits and tantrums at the drop of a hat and one of the methods or their attempting to offset either their parents, foster parents, or whoever their carers may be is by screaming.  I do not consider that as sufficient evidence to indicate that the child is being badly treated by the stepmother nor by the father. 

4. I have touched upon the capacity that the children's parents to provide for the needs of the child, including emotional and intellectual needs.  If, in fact, I need to go into that in any further depth, the mother, as far as I am concerned, is not assisting intellectual needs at all.  The child has slipped back, according to the evidence before me, and is not doing terribly well.  I am not saying she is doing very badly, but she is not doing well.  I do not believe that the mother's general attitude towards the father and the child would advance the child's emotional needs whatsoever.

5. There are other matters and that additional considerations that I could touch upon, but I am more than satisfied that the material before me is such that the child's welfare will only be advanced by their being in the possession of the father and I will be ordering in accordance with that, and I order - Mr Davies, do you have any objection to the order put forward by the father?

   RECORDED  :   NOT TRANSCRIBED

6. I order in accordance with the proposals of the father.  I further order that the child, I understand, is in the child's waiting room at this stage.  Have my decision explained to her by the independent children's lawyer. 

7. There is one further point:  I think this is regrettable that there is no sufficient evidence about it, that is that it would be advisable at there be a period - a lay off period during which time the mother does not have contact with the child to enable the child to settle down and not have the pressure put upon her by the conduct of the mother.  As I said, this was regrettable, it was not put to Ms T at all, and it would have been of some assistance for me to have some evidence to be able to decide whether it is in the best interests of the child.

8. There is some evidence, that is the evidence which the father gave as to the child's conduct during the Christmas period where the child was absent from her mother and she fretted and carried on.  I think that it is going to be a very difficult time for the child.  It is going to be a very difficult time for the mother.  It is going to be a very difficult time for the father, and for Ms GS.  I am particularly interested, as I have said, in the welfare of the child.

9. I think that at this stage there should be a period of one month where there be no physical living with or spending time with the mother, that is one month from this Friday, but the mother will be entitled to ring the child twice per week between the hours and 7 and 7.30 on a Tuesday and Thursday.  Is that inconvenient, Dr Sayer?

   RECORDED  :   NOT TRANSCRIBED

10. And that at the end of that four week period the spending time with provisions as set out in the husband's proposal - the father's proposal will come into force then. 

    RECORDED  :   NOT TRANSCRIBED

11. The order will be 2.4.1 is deleted, and 2.5.2 will become 2.4.1.  Do you understand that? 

    RECORDED  :   NOT TRANSCRIBED

12. We will make it until 12 noon on the birthday.  So that is 3 pm Saturday until 12 noon Sunday. 

    RECORDED  :   NOT TRANSCRIBED

13. The father have the long term responsibility - thank you. 

    RECORDED  :   NOT TRANSCRIBED

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell J

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SAWYER & CHANDLER