Sayers & Sayers
[2008] FMCAfam 869
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAYERS & SAYERS | [2008] FMCAfam 869 |
| FAMILY LAW – Parenting – live with – child 14 years of age – capacity of parents to protect the child from parental dispute. |
| Family Law Act1975 (Cth), ss.60CC(2), (3) & (4) |
| Applicant: | MR SAYERS |
| Respondent: | MS SAYERS |
| File number: | PAC 3521 of 2007 |
| Judgment of: | Henderson FM |
| Hearing dates: | 26 & 27 June 2008 |
| Date of last submission: | 27 June 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Harris |
| Solicitors for the Applicant: | Coleman & Greig |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | John Spence & Associates |
ORDERS
All previous parenting orders in relation to the child, [X] (“the child”) born in 1994 be discharged.
The parties have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with the mother as follows:
(a)Each alternate weekend from the conclusion of school on Friday until the commencement of school Monday morning. Such time to commence on 25 July 2008.
(b)From the conclusion of school each alternate Wednesday to the commencement of school on Thursday. Such time to commence on 2 July 2008 and re-commence on 30 July 2008 following the school holidays.
(c)For half of all school holidays as agreed between the parties and failing agreement for the second half of school holidays in 2008 and each even numbered year thereafter, and for the first half of school holidays in 2009 and each odd numbered year thereafter.
(d)In the event the Mother’s Day weekend falls on a weekend that the mother is not otherwise spending time with the child, the child is to spend time with the mother from 9am to 6pm on Mother’s Day.
(e)For a period of time on the child’s birthday as agreed between the parties.
(f)As otherwise agreed between the parties.
(g)The mother’s time with the child is suspended on Father’s Day.
Any arrangements made in relation for the child pursuant to Order 4(f) hereof is expressly made in consultation with the child.
Both parties are injuncted and restrained from discussing the proceedings with the child, or in her presence or hearing and are to use their best endeavours to ensure that no other person discusses the proceedings with her or in her presence or hearing.
Both parties are injuncted and restrained from denigrating the other in the presence of or hearing of the child and are to use their best endeavours to ensure that no other person denigrates either parent in the presence of or hearing of the child.
Both parties are injuncted and restrained from showing copies of any documents in any family law proceedings to any person other than their respective partners, their legal representatives, and pursuant to Order 9 below.
The parties are permitted to serve a copy of these orders on the school the child attends and any treating medical practitioner or specialist.
Within 24 hours each of the parties are to provide to the other all necessary authorities in writing to the child’s school to ensure each party receives information as to the child’s progress and notification of all school events or activities.
The parties agree to obtain an Australian Passport for the child with the father to retain the passport upon issue.
Both parties are permitted to take the child overseas for a holiday upon providing 21 days written notice of:
(a)the destination;
(b)itinerary;
(c)copy of return air tickets; and
(d)a contact telephone number on which the child may be reached.
The father is to forward to the mother the child’s passport upon the mother’s request and her compliance with the conditions in Order 12.
The Court requests that a Family Consultant explain these orders to the child.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sayers & Sayers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3521 of 2007
| MR SAYERS |
Applicant
And
| MS SAYERS |
Respondent
REASONS FOR JUDGMENT
The matter of Sayers is a parenting application heard before me on
26 and 27 June.
The father's application seeks orders that his daughter, [X] born in 1994, who is 14 years of age, primarily live with him and spend substantial and significant time with her mother and additional time by agreement between the parties at the request of the child.
The mother seeks the current orders made in 2001, amended in 2004, remain and that the child primarily live with her and spend significant and substantial time with the father and additional time with the father as agreed between the father and the child and with the mother's knowledge.
Ms Harris of Counsel represented the father and Ms Snelling of Counsel represented the mother.
The father's evidence was contained in the affidavit of himself and his wife, Ms N, both filed 25 June 2008.
The mother’s evidence was an affidavit of herself and her fiancé both filed 26 June 2008.
All parties were cross-examined and examined.
There was a family report prepared marked Court Exhibit 1 and the court reporter was examined on the telephone.
The father tendered two exhibits:
a)Exhibit1 being documents from Child Support showing a credit of Child Support of about $6000 as at 24 January 2008.
b)Exhibit 2 being a Child Support Account Statement showing that there is still $4000 credit as at May 2008.
Thus the mother is receiving no ongoing payment from the father as he has no liability to pay.
The short history of the matter is that orders were made by consent on 3 May 2004 providing that the children [Y] and [X] were to live with their mother and spend time with their father. There was an order that both parents were prohibited from discussing the proceedings with the children or showing the children any documents in the proceedings.
On 29 June 2007 I made undefended orders that [X] was to live with her father while her mother was away for six weeks in Europe. I made further orders on 19 October 2007 that [Y] live with his father which he had been doing since 24 November 2004.
The father was born in 1960 and the mother in 1964. They were married in London in 1990.
[Y] was born in 1991 and [X] was born in 1994.
The mother has an older boy, [Z], who is 23 years of age. He lived with the parties as their child and was regarded by the father as his son. [Z] continues to live with his mother and is looking for separate accommodation.
The parties separated on 31 May 2001 after a period of seven years together. Unfortunately there has been ongoing conflict for seven years.
[Y] went to live with his father on 24 November 2004 and for eleven months did not spend any time with his mother. The father did not notify Child Support of this arrangement until three months after [Y] moved to live with him.
The father married his wife Ms N on 23 May 2005.
On 17 October 2005 the father was seriously injured in a life threatening burns accident caused by boiling water out of a shower. The accident was so serious he nearly lost his life on two occasions.
He suffered third degree burns on forty-nine per cent of his body.
He spent a total of 68 days in hospital, 22 days in intensive care.
This must have been a most dreadful time for everyone, the children, his wife Ms N and the mother.
The father says, and it is agreed, that [Y] and [X] lived with their mother during his hospitalisation. The mother was having trouble with [Y] and when the father was discharged from hospital on
24 December 2005[Y] returned to his care.
The father became concerned about [Y]’s relationship with his mother and organised counselling for [Y] and the mother. The mother went twice. I will refer to the mother’s attitude to counselling further. However, [Y] and his mother now seem to have a reasonable relationship.
The father had skin grafts throughout 2006. Given the severity of the burns he sustained he has made a remarkable recovery. He is working and is well
In about June 2006 [X] began to contact her father complaining about things happening to her at her mother’s home. She told her father she wanted to live with him, that her mother had kicked her out of the home and so on
The mother travelled to Latvia in July 2006. [X] stayed with her father.
[Y] stayed with his mum on her return to Australia in September 2006 while his dad went to a conference in Munich. The father arranged further counselling for [Y].
[X] spent about 33 days with the father in the 2006/2007 Christmas school holidays. [X] complains about her mother’s behaviour at home. [X] says she is drinking to excess, not treating her well, blaming her when things do not go well and is preventing her from ringing her father.
[X] stayed with her father while the mother went to New Zealand for a two-week holiday with some friends in early 2007.
The father and Ms N attend Hong Kong in May 2007 and [Y] stayed with his grandfather.
[X] commenced a part-time job delivering brochures in June 2007.
The mother tells the father in early June that she is going to be overseas for about eight weeks from 3 July and that [X] will be cared for by her niece, [X]'s cousin.
The father is not happy about this arrangement and he corresponds with the mother in a letter dated 14 June 2007 saying: "I'll care for our daughter while you're away and I want a response and if you don't respond, I'll bring the matter to court."
The mother does not respond to the letter.
The mother gave evidence is that she thinks she rang the father or maybe SMS'd him or maybe sent a message concerning the care of [X]. There is no letter produced. I do not accept the mother's evidence. She chose to ignore the father’s letter to her.
[X] and the mother had a significant public argument on 16 June 2007 with [X]’s cousin and her father on the very issue of where [X] would stay whilst the mother went overseas.
I accept that [X] told her mother that she wanted to stay with her dad during her trip overseas and not her cousin. The mother was displeased and angry words were exchanged. [X]’s cousin and her father entered the affray and I accept that the cousin’s father called [X] a little bitch. I accept that both her cousin and father said she should not be rude to her mother and do what she said.
The father had no option but to bring Court proceedings having regard to [X]’s strong wishes and the mother’s silence. The documents were finally served on the mother on about 27 June 2007 after various unsuccessful attempts had been made to serve her.
The father came to Court. The mother did not attend and I made orders on an undefended basis that [X] live with her father whilst the mother was overseas from 29 June 2007.
The mother asserts she told the father he could have the child before she was served with the court papers. I do not accept that evidence. There is no independent confirmation of the mother’s story. I formed the view after hearing the mother give evidence that unless the father had brought an application to the court the child would have stayed with her cousin.
On the mother’s return from overseas [X] returned to her mother and she and her mother have another fight. The mother and father have a meeting about their daughter.
[X] stops her delivery job.
The mother goes to Latvia for four to five weeks in February 2008. [X] stays with her dad and upon her mother’s return to Australia returns to live with her mum.
Both the father’s wife and the mother’s fiancé were examined and cross-examined. I found both witnesses to be caring, honest people who gave their evidence clearly. There had been some concern in relation to the mother’s fiancé because the mother gave the court and Ms Harris almost no information about him in cross examination or in her affidavit. Her view was her relationship wither fiancé had nothing to do with the issue of where [X] should live and was not relevant.
After hearing him give evidence I have no concerns regarding the mother’s fiancé and can understand why [X] told the family report writer she had a good relationship with him.
It is clear that [X] has a very good relationship with Ms N her father’s wife and after hearing her give evidence I can understand why that is so.
The father's case is this: He says his daughter wants to live with him on a primary basis. The father is very concerned that his daughter is unable to express her real feelings when she is with her mother and feels the need to keep the peace and in some way make her mother feel better. That comes out in paragraph 19 of the family report:
Mr Sayers highlighted his concerns for [X]’s wellbeing and the way she's being treated in the mother's home. Mr Sayers further stated that [X]'s complaints about her home in relation to fighting with her mother were escalating prior to his application, and she used to talk to him about everything. Mr Sayers stated that [X] has since stopped talking to him about these concerns, and believes it is a result of Ms Sayers’ influence. Mr Sayers is further concerned that [X] will not disclose her true views about the situation and believes that she will agree to anything to achieve ‘harmony’.
She has stopped talking to him about those things since that June 2007 when I made the undefended orders. He believes his daughter no longer confides in him because of her mother’ attitude and reactions. He is concerned she will not disclose her true views about any situation and will agree to anything to keep harmony and her mother’s happiness.
The father also showed quite significant insight in paragraph 20 of the report when he said that the ongoing conflict between him and his former wife, as well as the limited communication patterns they have, has made life very difficult for his daughter and has contributed to her feelings. He says this lack of communication has impacted upon the parents being able to cooperatively co-parent the children.
That this is so is highlighted from the example given of the time the father sought counselling for [Y] due to his concerns regarding his poor relationship with his mother and the mother said she did not wish to participate.
It seems the father has shown some real insight into the family dynamics and that he and the mother both bear a responsibility for their young daughter feeling she has to be the peacemaker between her parents and that the impact of the parental conflict is not a good thing for her development.
The father agreed that the child spends extra time with him, but does not spend extra overnight time with him because the mother will not allow it. It is clear the mother permits the child to spend more time with her father than the orders provide however this does not extend to overnight time.
It is clear that the payment of child support has been a big issue between the parents particularly from the mother’s point of view. Although the parents have been separated for seven years, rather than their communication and respect for each other as competent, caring parents growing, it has diminished. Their relationship is worsening over time. The conflict between them is high and their children know about it.
The father asks that his daughter spend Christmas Eve with he his wife and her brother each alternate year. It clear that since separation the child has never spent Christmas Eve with her father or her brother from the time he came to live with his father.
The mother says because she is of European background Christmas Eve rather than Christmas day is the most important time and she should continue to have every Christmas Eve with the child. What this attitude fails to take into account is that the father has the same or similar European background where Christmas Eve looms large and the children have the same European background. The mother is unconcerned that it is the children’s right to share in significant days with each parent not just one parent.
It is clear that the father put considerable effort and energy into repairing the relationship with the mother and [Y]. [Y] did not see his mum for eleven months after he came to live with the father. The father organised counselling and wanted the mother to attend. The mother attended on two occasions after which she refused to continue.
These events are set out in the father's affidavit at paragraph 22 and the mother's affidavit at paragraph 8.
The father says at paragraph 22:
Subsequent to this message a meeting was arranged between [Ms Sayers] and the Counsellor and scheduled for Thursday, 23 November 2006. On Sunday 19 November 2006 I received three text messages from [Ms Sayers].
8.32pm "Please call [omitted], we are not going Thursday and please ask her not to call me because I'm not interested share my privacy.”
8.53pm “I can't look after [Y] in the future when you are going to Melb. Pl organise where he can stay. He is not normal son. I don't want to deal with him at all. Sorry”
9.07pm “I don't need to sort out anything you take care about him. It's all over."
The mother’s version at paragraph 8 is:
In 2006, I am aware that a psychologist visited [Y] at school. [Y] subsequently had a conversation with me. He said:
"Why did someone come to discuss my life with me at school?"
I said:
"I don't know. I was not aware of it."
[Y] said:
"Well, I don't like talking to people about my private life."
I said:
"Okay, your father may have organised it. I will speak to him."
The mother’s affidavit continued:
After this [Y] and I attended three sessions of counselling with the Applicant. [Y] did not want to take any further part in these sessions as the Applicant kept turning the sessions into discussions about himself and my previous marriage. I ceased attending the sessions.
I accept this is what the mother believes, that [Y]’s counselling was all about her. This is the theme and flavour of the mother's evidence. Anything the father does and all that happens is really about her and not about the children. I accept his is what the mother may believe but it is not the reality of the matter.
From the evidence the counselling organised by the father was squarely focussed on repairing the non existent relationship between the mother and her son which may have required some exploration of the breakdown of the parents’ relationship. The mother demonstrated no capacity to understand that her behaviour and the adult relationships she has are intertwined with her relationship with the children.
The mother, through her Counsel, Ms Snelling, re-enforced her position that she will not participate in any counselling or any parenting after separation course. The mother said that discussing her private life was not something she believed was appropriate and she could not see the benefit of counselling. That is the mother's view and she is entitled to take that stance. The consequences that flow from such a stance are another matter.
The father suffered a truly horrific near-death incident when he suffered third degree burns to 49% of his body, on 17 October 2005. He said this was as a result of the faulty installation of a new gas hot water system in his home. The plumber did not place the flu correctly and the outlet valve was unable to release pressure and water heated to over 79 degrees poured over him whilst under the shower. I accept this evidence.
The mother told the children their father was drunk at the time he was burnt. The mother admitted as such to the family consultant and in her affidavit. Either she told the children their father was burnt because he was drunk or was drunk at the time he was burnt. The mother's conduct is callous and cruel. That the mother would say such things to her children at a time when their father was lying in a hospital bed near death and they were much traumatised is cruel in the extreme.
Even if the mother thought this to be true to put a further unnecessary emotional burden on her children at this distressing time is inexplicable if, as a parent, you are putting the children’s needs before your own.
It is explicable if you have little concept of the children’s needs and see all matters in a self centred way.
The mother could give me no explanation to enable me to understand her behaviour at this time. The mother maligned the father to the children and this can only have hurt her children.
The Family Report writer agreed this was improper conduct and behaviour by the mother and that what she should have done was support her children in the face of their father’s grievous injuries. Fortunately, he survived and is functioning as well as he ever did.
The mother showed documents to and has had discussions with [Z] concerning the proceedings which took place in June 2007. The father in these proceedings is the only father that [Z] has ever known. He has been the most significant male in his life. After reading the material and/or listening to his mother, [Z] no longer has a relationship with the father. There was no forensic reason for the mother to involve [Z] in this dispute. It has nothing to do with him.
I cannot understand the mother’s actions which have poisoned the prior good relationship between [Z] and Mr Sayers. Mr Sayers has only ever been a kind, loving and supportive father to [Z] and that relationship has now been destroyed by the mother.
The mother’s explanation for her conduct was that she was upset, was not feeling well, was stressed at work and could not control her emotions. That may be the case, but it does not justify nor excuse her unnecessary involvement of [Z] in the dispute which has resulted in him no longer having a relationship with a man he had regarded as his father.
This is a further demonstration of the mother’s inability to protect her children from exposure to the consequences of her needs being fulfilled and her inability to understand the negative impact of her behaviour upon her children. All the mother has done is to burden [Z] with her feelings. It is very immature conduct on behalf of the mother and not child-focused.
I accept the mother and [X] had a public verbal altercation at a restaurant on 16 June 2007 concerning her living arrangement whilst her mother was overseas.
I find that the cousin [name omitted]’s father, who has nothing to do with this child, called [X] a little bitch and that [X] was understandably upset by this rude remark. [X] may well have been being rude to her mother however this does not justify such interference. The mother would not concede any fault for this scene. I find to the contrary.
The mother was not listening to her child. The child wanted to stay with the father. There is no reason she should not have been allowed to stay with her dad. She had stayed with her dad in February 2007 and the year before when he mother travelled overseas. There was no difference on this occasion but the mother’s whim.
The mother’s explanation to the Court was this:
a)
Initially the father said he could not care for the child in February 2007 when asked. Even though he changed his mind within
24 hours and did care for the child the mother said this initial reluctance on his part was part of the reason why she did not want the child to stay with him on this occasion.
b)The child needed discipline and a firmer hand, which her cousin and her father could give.
c)Thirdly, she thought as she was to be away for such a long time the father would not be able to cope caring for his daughter.
It was put to the mother that the real reason she would not let the child stay with her father was because such an arrangement would affect her child support. Her child support would not be affected if the child stayed with her cousin.
The mother denied this to be true however the fact of the child staying with her father did reduce her child support payments. I do not accept the mother’s explanation for her poor decision to oppose [X] staying with her father whilst she was overseas. She did not make a decision that was in her daughter’s best interest. She was making a decision in her own best interests.
[X] has suffered emotionally from standing up to her mum on that occasion and at other times. June 2007 was likely the first time she has been so forceful against her mother’s wishes. The mother has been most hurtful to [X] since that time as the following evidence reveals.
In the mother’s own affidavit at paragraph 50 concerning this very incident:
In June 2007 the day after I received the current Court papers, I had a conversation with [X] to the following effect.
I said:
"[X], have a look at what your father is doing. If I don't have you, then I may as well go and live in Europe and work in Europe."
[X] said:
"Why?"
I said:
"Because if I don't have you here, you are my youngest child in the family and my only daughter."
Paragraph 51 continued:
At about this time [X] read the papers that I had been served, and we both became upset. After this, [X] went on the internet. I recall making a comment that I regret about being in Europe and never seeing [X] again. I regret this comment, and I said it because I was extremely distressed. I never said that everything was [X]'s fault.
I do not accept that the mother has never said it is all [X]’s fault. This is precisely what the mother has said, that these proceedings are her fault. Has the mother ever apologised to her daughter for her hurtful and unfair comments? No. Has the mother ever sat down and explained that she did the wrong thing when she put the blame on her child? No.
The mother sat in the witness box and tried to justify her behaviour at this time by blaming the father when the reality of the situation is the only reason the mother was served with these papers in June 2007 was because she would not agree to the father’s proper and reasonable request on 14 June 2007 that he care for his daughter whist the mother travelled overseas and consistent with the child’s own wishes. This situation arose because of the mother’s attitude and conduct and no-one else’s. To lay blame at the child’s feet is appalling behaviour for someone who puts themselves forward as a child’s primary carer.
[X] has said she has apologised to her mother as reported in the family report and at paragraph 52 of the mother's affidavit:
After a time she would apologise and say, "Sorry, I didn't mean that. I was just angry with you."
What has [X] to apologise to her mother for? Nothing. If [X] wants to spend time with and live with her father she should be able to say as much to her mother and her mother should discuss these issues with her, not cause the child to feel guilty and apologise. This failure by the mother to properly address the issues from [X]’s point of view is the very reason the matter is in court.
In the family report at paragraph 15 the mother talks about the incident on 16 June at the restaurant and says:
[X] called him [her father] and asked to be picked up disclosing she was being ‘abused’ by her mother, this was defined as emotional and verbal abuse. In regards to this allegation, Ms Sayers stated that this incident was the result of an argument between [X] and herself. The argument arose due to Ms Sayers wanting [X] to stay with her niece while she'd be away.
Ms Sayers stated [X] did not want to and started ‘making trouble’. Ms Sayers stated to the reporter that she showed the affidavit to [X] and told her that her father will ‘make big problems with Child Support’ and that ‘you know you can't say things to dad because they come out the wrong way’. According to the mother, [X] was shocked upon reading the affidavit and was very sorry afterwards.
This demonstrates that the mother has laid a guilt trip on the child. There is no reason for her to have shown [X] any Court papers and there is an order prohibiting the mother form doing this very thing. The incident and its consequences came about because of the mother's conduct.
The father said he believes [X] can tell him her true feelings because she does not need to humour him as she does her mother. I have formed exactly the same view on the evidence. This child spends extra time with her father, but has paid a significantly high emotional price for the spending of that extra time. The family report writer refers to a child feeling responsible for the conflict between her parents and one who finds it difficult being in the middle.
The mother agreed that [Y] had said to her, "I'm sick of being in the middle of your shit." That is a fair description of what has happened to these children.
[X] stopped her job because she believed handing out the pamphlets was going to affect her mother’s child support. Why would [X] think this? [X] would think this because that is what her mother told her. Whether this belief is correct or not is not the issue. I accept it is what [X] believed.
When the mother was questioned on this said she showed the child the family report because the mother did not want to be blamed for [X] stopping her job. This demonstrates how egocentric and non child focussed the mother is. This was wrong of the mother. The issue here is not about the mother being blamed it was how the child came to think this way in the first place. The mother has no insight into this child’s needs, which are different from hers, or what this child is taking on board from her mother’s conduct, words and behaviour.
[Y] said in the family report at paragraph 30 that things should stay as they are because it will “keep the peace”. These same views have been attributed to [X] at paragraph 41. The court reporter says:
[X]'s genuine views are difficult to ascertain given the level of internal conflict she presents with after being exposed to and enmeshed in parental conflict for a number of years. The statements for a desire for current arrangements to remain in place must be considered with caution. It does appear that [X]'s motivation in her stated views are to meet the needs of her parents and avoid conflict rather than a true reflection of her views, needs and wants.
Both parents have a responsibility for the conflict. This is not just at the mother’s feet. But there is not one shred, not one jot, not one scintilla of evidence to say that the father has ever blamed the child or ever caused the child distress or harm as consequences of her telling him her true feelings. It is to the contrary for the mother.
I am most concerned at the mother’s lack of insight into the effect of her behaviour, her words, and her conduct upon her child.
Blaming the child for court proceedings, saying "You can't tell your father anything because he gets it wrong and it comes back," telling the child the father was drunk when he was burnt, letting the child and the court believe that the father was derelict in his obligation to pay child support when it is clear he has overpaid the mother, and involving [Z] in this dispute so that he loses the relationship with the only male figure he has ever known. The mother acted in this manner to satisfy her emotional needs, justify her behaviour, and make her feel better. The mother showed no concern or understanding of the impact that such behaviour has had on all the children.
When the mother was pressed upon why she has shown this child the family report and the affidavit material this is what she said:
Yes, I'm happy to show these to her. She needs to know what is going on.
No, she does not. She needs to be protected from what is going on not to think she is to blame for the poor parental relationship.
The mother said [X] needs to know that when she threatens to run away and go live with her father these things that will happen.
No, she does not. [X] needs her mum to sit down and find out what is going on. However the mother counter-threats the child and says” I will go and live in Latvia because why else would I stay in Australia.” It is clearly very difficult for this child to discuss matters with her mother when she knows her mother strongly disagrees.
[X] pays a high price for ever putting forward her wishes when she knows they are inconsistent with her mother’s point of view. Her mother has rejected her in the past and has laid guilt upon the child.
The 2004 orders specifically prohibit the parents from discussing these proceedings or showing the children Court material. The father has adhered to the orders the mother has not. The mother has taken no notice of the injunction. The mother has gone ahead and shown all the children whatever she thought they needed to see.
When asked why she showed the children the affidavits and family report and the like, the mother said, "I should not have shown her these things". I was hoping we would see some insight and regret from the mother for having involved her child. This was not to be. The mother went on to say "But I am the biological mother and I am looking after her."
The mother would not concede the father also looks after [X]. The mother said "No, it's only me. [Mr Sayers] gets additional time not because [X] wants it but because the father wants it."
The mother said the father says horrible things to her and so she has to counter with horrible things back to him. She provided not one piece of evidence to support her bald statement. I do not accept the father says horrible things about the mother to the children.
The mother says the relationship with her son [Y] was normal in 2006. I do not accept that evidence. It was anything but normal. Counselling was organised by the father and the mother failed to cooperate with counselling for reasons that I do not understand.
The mother agreed she had asked [X] to request her father withdraw the proceedings. If that is not placing pressure on a child and making a child feel guilty for what adults are doing, I do not know what is.
The mother then said, "If I lose custody, what do I do in Australia? See her every second weekend? It's not enough. I am the biological mother."
The mother was resistant to any questioning concerning her new partner’s family, his country of origin, his relationship with his child etc. She said on many occasions to Ms Harris "What is the relevance of this? I'm here about my daughter." The mother simply would not or could not see that how she leads her life, the people she brings into her home, the things she says or her conduct has a significant effect upon her daughter.
Both parents share some responsibility for [X]’s present feelings of responsibility for her parents’ poor behaviour and these Court proceedings.
By the decision I make I will endeavour to relieve the child of some of that burden.
The Law
Neither party contends there should be a rebuttal of the presumption of equal shared parental responsibility and I will so order.
Neither parent contends that there should be equal time. [X] herself said in the family report that is not something she wants and neither parent says that is a good idea. I will not make such an order.
Both parents say that the child should primarily live with one of them, and spend significant and substantial time with the other parent and other time as agreed. This is [X]’s wish also.
Thus the issue is with which parent [X] should primarily live.
Whatever order I make today [X] will maintain the benefit of a meaningful relationship with each parent.
There are no violence issues.
The salient matters for me are:
a)[X]’s stated wishes and the weight I place on those wishes;
b)The need to protect [X] from emotional and psychological harm having regard to the poor communication between her parents and the high conflict in their relationship; and
c)The parents’ capacity to support and promote their child’s educational, emotional and physiological development.
I find [X]’s stated wishes for things to remain as they are and for there be no change to her living arrangements cannot be accepted at face value. The reasons I say this is this are:
a)[X] sees herself as a peacemaker. She will subordinate her needs to her mother’s needs;
b)[X] has experienced threatening and harmful conduct at the hands of her mother whenever she has expressed a wish to stay with her father even if her mother was overseas. She has felt the need to apologise to her mother for no reason I can discern other than accepting guilt for her mother’s poor behaviour.
c)[X] pays a high emotional price for spending additional time with her dad other than that which the orders provide. She has been paying this price for some.
In the light of these findings I cannot rely on this child’s expressed wishes as I do not accept she has been able to express her real wishes having regard to the mother’s conduct. This should be worrisome for the parents. It has troubled the father for some time. The mother has not been aware of her daughter’s desire to be a peacemaker as she is so caught up her own needs.
At the age of 14 it is most unusual for a court to make orders about the living arrangements for a child. A child of this age is often beginning to lead a more independent life from their parents and orders have little relevance to their changing needs.
On the evidence in this matter I find it is essential and proper I make orders in an endeavour to relieve some of the pressure on this child. This means I must give greater time with the parent I assess can best promote the child’s best interest and independent development. I want this child to stop feeling she must be a peace maker. The family report writer said such a burden can lead to depression and feelings of lack of self-worth in the future.
Although I accept the mother loves [X] dearly I find she is unable to protect the child from her own hurts, disappointments and resulting needs when they are inconsistent with [X]’s needs. The mother has no insight into her daughter’s needs or any ability to see matters from [X]’s perspective and then to subjugate her needs in the best interests of her child. It is [X] who subjugates her needs to appease her mother’s needs.
The mother has made her child feel guilty for wanting to spend more time with her dad and for wanting to live with her dad when her mum is overseas.
The mother has behaved the same way towards [Z] by poisoning the prior good relationship he had with the father because she the mother was angry and upset. This was a most destructive act on her part.
The mother could not concede any fault on her part on any occasion for how her daughter feels, for the family dispute before me and her previous poor relationship with [Y]. On not one concession was the mother at fault on her evidence.
The mother says she does not need counselling and will not attend counselling. She does not want interference from strangers and no doubt she feels the same way about the Court. Thus she will never be able to obtain insight into how she could ameliorate her behaviour for the benefit of her children.
This child cannot express her true feelings with the mother. If she is unable to do this then she will never get a sense of her own self-worth, be able to stand up for herself with her peers and row against the tide.
The only chance for this child to develop her own sense of worth and become an independent emotionally robust young woman is if she lives with her father primarily. If she remains in her mother’s full-time care I see the road for this child as quite dim and she will continue to pay a significantly high emotional price for trying to be her own person, which she is entitled to be.
If these parents could cease their conflict it would no doubt help their daughter. It would help their sons, including [Z]. But whether that can happen I do not know. I find the mother’s implacable attitude in not being willing or open to attend counselling causes me real concern as to whether the father can make this work on his own. The court counsellor reiterated the parents needed to cease the conflict. The father is willing and able to do so, the mother is not and does not see her actions are in any way wrong.
The father’s concerns in relation to the child’s inability to be herself and feel free in discussing matters whilst living with her mother are completely justified. The father was compelled to bring this application to protect the best interests of his daughter.
On the weight of the evidence I will make the orders contended for by the father.
The father was able to repair [Y]’s relationship with the mother single handed. With that capacity I am satisfied that he will be able to maintain [X]’s flexible relationship with her mother. [X] will pay no emotional price whatsoever with her father’s affections if she asks to spend additional time with her mum. It will not even be an issue. It will be granted freely. But she will continue to pay a very high price if she lives with her mother, asks for that favour and it is granted.
One stark example of the mother’s implacable attitude is her view that the child should always spend Christmas Eve with her. It is a completely self-centred approach. [X] has a right to spend time with her mother and her father on all significant occasions such as Christmas, birthday, and the like, and not just with one parent.
Therefore, I make orders in accordance with those as set out at the commencement of this judgment.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Henderson FM
Deputy Associate: A. Morris
Date: 15 August 2008
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