Smith & Smith

[2008] FamCA 528

FAMILY COURT OF AUSTRALIA

SMITH & SMITH [2008] FamCA 528

FAMILY LAW – CHILDREN – with whom a child should live – previous orders for the children to live with the father and spend time with the mother made in 2002 – mother has not had relationship with children for some 5 years – mother seeking children relocate from Darwin to Sydney and live with her - emotional impact on children of disturbing their current lifestyle would be severe and highly damaging – nothing in the mother’s proposal which is of benefit to the children – father to have sole parental responsibility for the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC,

APPLICANT: Ms Smith

RESPONDENT: Mr Smith

FILE NUMBER: SYF 4048 of 2006

DATE DELIVERED: 22 April 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Burr J

HEARING DATE: 11 March 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: David Story

SOLICITOR FOR THE RESPONDENT: Story & Associates

Orders

1. That the mother’s Form 1 Application filed herein on 12 October 2006, be and the same is hereby dismissed.

2. That the father have sole parental responsibility for the children S born … February 1994 and C born … September 1996.

3. That the children live with the father.

4. That the children not spend any time with nor have any communication with the mother.

5. That the mother keep the Court informed at all times of her current and any changed address and contact details.

6. That the father inform the children of the mother’s contact details in the event that the children request same.

7. That Mr R forthwith inform the children in person of the Orders made by this Court and of their entitlement to secure their mother’s contact details from this Court’s files should they ever wish to do so.

8. That the children be at liberty to secure the mother’s contact details from this Court.

9. That the father be restrained and an injunction is hereby granted restraining the father from moving the children’s place of residence from the Commonwealth of Australia.

10. That all matters be removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Smith & Smith is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYF4048 / 2006

MS SMITH

Applicant

And

MR SMITH

Respondent

REASONS FOR JUDGMENT

The applications

1. There are two children of the parties to these proceedings namely S born in February 1994 and C born in September 1996.  Thus they are 14 and 11 years of age respectively.

2. There are competing applications between the parties for my determination as to with whom the children should live and the nature and extent of any time that the children should spend with the other parent.  The mother also seeks an Order from me restraining the father from removing the children from the Commonwealth of Australia. Final Orders on children’s issues had been previously made by Federal Magistrate Scarlett in the Federal Magistrates Court at Parramatta on 20 December 2002.  The principal effect of the Orders was that the children were to live with the father and the mother was to spend alternate weekends with the children and a proportion of each school holiday period.

Background

1. The father was born some 53 years ago and the mother in Fiji in October 1971, making her 36 years of age.  The parties met in Fiji and married there in February 1993 before taking up residence overseas.  After S and C were born respectively in 1994 and 1996, the family then came to Australia to reside on 7 January 2000.  After some 9 years of marriage the parties separated in March 2002.  In 2003, after final Orders had been made in the Federal Magistrates Court, the husband moved with the children from the south-western suburbs of Sydney to Northern New South Wales.  The father alleges that the mother saw the children on only two occasions between the Orders of 20 December 2002 and the date that he moved.  In her Affidavit filed in these proceedings on 12 October 2006, the mother states that she saw the children regularly until April 2003 when the father effectively unilaterally terminated her contact with the children and moved away, thereby preventing her from seeing the children again.

2. The mother alleges that a number of factors conspired against her and prevented her from bringing any proceedings in this Court prior to her Application filed on 12 October 2006.  She stated that she was unaware of her rights and when she did secure some advice she was unable to afford to pursue the options open to her.

3. In 2004 C made allegations that she had been sexually abused by a friend of the mother.  I assumed the allegation to have been made against a Mr H now of Queensland.  I agreed to receive into evidence an Affidavit sworn by Mr H on 28 February 2008 and faxed to the Court that day.  In it he denies the allegations of abuse.  The father has not pursued those allegations within the context of these proceedings.

4. In February 2004 the father and the children moved to northern Queensland.  In June 2006 they relocated to Darwin and have resided there since.

5. Prior to the proceedings in the Federal Magistrates Court concluded by Order on 20 December 2002, the father had met and was in a relationship with Ms Z.  They married in 2005.

The evidence

1. Each of the parties gave evidence in support of their applications before the Court and relied upon Affidavits filed by them.  The mother gave her evidence by way of video link from the Parramatta Registry of the Court. 

2. I also accepted into evidence the Affidavits, both filed by the mother, of Mr H and her step-father.

3. The Court called evidence from experienced Family Consultant Mr R, who had prepared a Family Report dated 11 January 2008.

Relevant Law

1. Significant amendments were made to the Family Law Act with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006. I set out and deal with the relevant provisions below:

   Section 60B

2. The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. One matter of critical importance was not altered by the amending legislation. Section 60CA still requires the Court to “regard the best interests of the child as the paramount consideration” in deciding what, if any, parenting order to make. In making that determination as to what would represent the best interests of the child, the Court is guided by the provisions of Section 60CC which is divided into primary and additional considerations. I will deal with those matters now.

   Section 60CC

2. Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. Mr R was of the firm view, both in his Family Report and in his oral evidence before the Court that there would be no benefit to the children in having a relationship with the mother.  They had not seen her and in fact had had effectively nothing to do with her for some 5 years.  These children are part of a comfortable family unit which does not include the mother.

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

1. Allegations were made by both parties as to violent and erratic behaviour on the part of the other.  However all of those matters are particularly historical and of no relevance to me in determining the issues before me.  I am satisfied though that the children are secure and safe in their present family environment in Darwin.

   Additional considerations

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. Both children were interviewed by Mr R on 4 January 2008.  They engaged readily in the interview process and expressed their views to Mr R in a forthright, articulate and mature fashion.  It was his view that I could have significant regard to their views given their level of maturity and understanding of the issues before the Court.

2. At paragraphs 12 and 13 of Mr R’s report, C is reported as having a very firm view about any future role that her mother might play in her life in that Mr R records the following:-

   “12.    In discussing the possibility of communicating with her mother [C] was very clear and firm in stating that she did not wish to have any contact with her.  She emphasised that she has ‘a new Mum and a nice family’ and that she did not want this situation to change.  She stated that if she received a letter from her mother she would ‘probably read it and then throw it in the bin’.  She reported that if she were required to have telephone contact with her mother she would ‘probably not have much to say’.  The prospect of receiving letters or phone calls from her mother was clearly something that [C] did not want to occur.  She was even more opposed to the possibility of spending time with her mother and referred to ‘being concerned’ for the safety of herself and [S] if this were to occur. In discussing this she once again referred to her experience of sexual abuse whilst in the care of the mother.

   13.      When queried about what she would like to tell the Judge, [C] stated, ‘I don’t want any contact at all (with her) … no pictures, letters …. I have a nice family now and I don’t want that to change.”

3. S was just as emphatic and Mr R records this at paragraph 20:-

   “[S] reported that he did not want to see his mother or have any contact with her beyond a brief yearly telephone call (with conditions) if he was required by the Court to communicate with her.  He reported that he has no positive memories of his mother but retains unsettling and painful memories of abuse and neglect in relation to his mother.  He reported that his life was good at the present time and he generally viewed his mother’s efforts to restore some sort of relationship as unsettling and unwarranted intrusion.  He was particularly concerned about the likelihood of renewed conflict involving his mother, father and step-mother and sought to counter all measures by which the mother might become aware of their address or contact details.”

4. Of particular significance too is Mr R’s firm view that the views expressed by the children are their views and have not been subjected to influence by the father.  He records this at paragraph 21:-

   “Both [children] believed that if they did wish to have contact with their mother then this would not be opposed by their father.  They both acknowledged that their father would be concerned if this were to occur due to potential safety issues and the likelihood of such contact as being unsettling for them.  However, both children appeared confident that the decision to communicate with their mother, or to spend time with her in the future, was their decision to make.  I did not gain the impression that the children had been pressured to adopt a particular view in relation to this issue.  They were confident and spontaneous in expressing their views and were able to provide plausible (though untested) reasons for the views they expressed.  Generally, I accepted their views as genuinely their own based on their likely experience of their mother’s parenting and the conflict that has existed between the parents since separation.”

(b)the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

1. Effectively the children have no relationship now with their mother.  It is the mother’s allegation that this is entirely the fault of the father.  She alleges that he “kidnapped” her children in early 2003.  However, if that is true, she did nothing to redress the situation until October 2006.  Her Affidavit provides some explanation as to why she did not do so, but suffice is to say that she could have done in 2003, what she did in late 2006.

2. The children’s relationships with their father and his new wife, are strong indeed.  They clearly consider themselves to be part of a very happy tightly knit family unit.  At paragraphs 22 and 23, Mr R says:-

   “22.The children were observed interacting with the father and [his new wife].  They appeared comfortable and relaxed in their relationship with [the stepmother].  They responded well to her and at all times appeared respectful and responsive in their dealings with her.

   23.Both children expressed positive sentiments in relation to [the stepmother] whom they both readily identify as ‘Mum’.  The children acknowledged having some initial difficulty in adapting to [the stepmother’s] involvement with their father but both now describe their relationship in close and positive terms.  This was also acknowledged in interview with [the stepmother] who stated that the children had an intense and sometimes violent reaction to her when she first came to know them.  [The stepmother] reported that their relationship is much improved and that they get on very well now.”

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. This issue looms large in the mother’s case.  I have concerns, which I am not able to elevate to a finding, that the father has not done all that he could in order to facilitate, encourage and maintain a relationship between the children and their mother.  The mother though has played a significant part in that loss of her relationship with the children in that she effectively took no action for almost 4 years in seeking to restore that relationship through the institution of Court proceedings.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. This factor is one of the most significant of all of those that need to be considered by me.  What the mother is asking me to do is to uproot the children from a familiar and settled routine within their current tight knit family circle, a routine which has existed now for some 5 years.

2. They are well settled in Darwin, at their schools and within their family.

3. In relation to C, Mr R reports:-

   “7.[C] is 11 years of age and will be attending Year 6 this year.  She reported that she enjoys school and that she generally does well at school.  She enjoys spending time with friends and family and is involved in Girl Guides.

   8.[C] presented as a bright, engaging, confident young girl.  According to school reports provided by the father she is performing well at school and is popular with teachers and peers.”

4. As to S, Mr R records at paragraphs 14 and 15:-

   “14.[S] is 13 years of age and is enrolled in Year 8 this year.  He also reported that he enjoys school stating that he has lots of friends and referring to his current school as having good teachers and a friendly and caring atmosphere.

   15.[S] presented as a mature, confident young boy who is doing very well at the present time.  He is actively involved in air cadets and views himself as following a path to recruitment in the defence forces in years to come.  He was animated and spontaneous and displayed good social skills when interviewed.”

5. What the mother is asking is that the two children be uprooted from the comfortable and secure existence they have established over the last five years, leave their current family circle, move from Darwin to a Sydney suburb in New South Wales and take up residence with a mother whom they have not seen for five years in a two bedroom apartment.

6. I am satisfied that the emotional impact upon the children would be severe and highly damaging.  There is nothing about the mother’s proposal which is of benefit to the children.

7. During both days of the consensual Division 12A proceedings before me, being 4 December 2007 and 11 March 2008, it was patently obvious that the mother was focussed on her own needs to be reunited with her children and to have them live with her.  She was either completely unwilling or unable to recognise the emotional impact upon the children of her proposals.  It is a factor particularly remarked upon too by Mr R in his report.  At paragraph 26, Mr R states:-

   “[The mother] appeared to find it very difficult to focus on the children’s needs or to consider the likely issues that confront them at the present time.  She displayed a tendency to focus on what she described as her entitlement as a mother to have the children with her.  This was a theme that dominated her account of the situation repeatedly stating that she was ‘the real mother’ and ‘that children should be with the mother’.  She did not foresee any difficulty for the children in returning to live with her in Sydney.”

8. Further, at paragraph 30, Mr R records:-

   “In interview with the mother she gave the impression of being overwhelmed by her own feelings of hurt and anger to the point that her capacity to focus upon the needs of the children and to maintain an awareness of the sensitivities inherent in this situation seemed to be rather limited.  In effect she displayed little insight into the children’s current situation and appeared to be focussed on apportioning blame and criticising the father and step-mother.  Her presentation, views and attitudes did not suggest that an attempt to reinstate a regime of contact with the children was likely to be a viable option in the near future.”

9. It was the mother’s evidence that she worked 7 days per week on a shift work basis at two separate nursing homes.  From Monday to Thursday of each week those shifts did not conclude until 9.00 pm and on one of her weekend shifts, she did not finish work until 10.30 pm.  She indicated that if the children came to live with her she would spend some time for most of each weekend with them until they were adjusted and then would be in a position to spend each Saturday with them.  For the times that she was not able to personally supervise the children, which on her shifts were quite extended periods of time, she said that she would organise babysitters being people who are clearly strangers to the children.

1. On the evidence, it is impossible to find that the mother has the children’s best interests at heart.  Clearly and understandably, she is distressed by the loss of her relationship with her children but her proposals would satisfy only her own needs.  They could never satisfy the children’s needs.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This too is a significant factor.  Darwin and Sydney in New South Wales are a considerable distance apart.  If the children were to spend time other than with the parent with whom they live it would effectively involve a day of travel each way.  The cost too would be considerable.

(f)the capacity of:

(i)     either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

1. I am satisfied on all of the evidence available to the Court that the father is well able to satisfy all of the children’s needs in concert with his present wife.  The children are secure emotionally and are doing well at school.

2. I am equally satisfied that the mother does not have the capacity to meet those needs.  It could well be that she would be able to satisfy their practical and financial needs but her inability to recognize the impact upon the children of a complete dislocation from their present lifestyle and a relocation to Sydney, is demonstrative of her inability to meet their emotional needs.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. The mother described herself as Fijian and is keen to ensure that the children understand and retain the benefits of her culture and traditions.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. No matters of relevance emerge for my consideration pursuant to this sub-section.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. No additional matters emerge for my consideration pursuant to this sub-section.  They have been dealt with by me above when dealing with other similar relevant sub-sections.

(j)any family violence involving the child or a member of the child's family;

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)               the order is a final order; or

(ii)             the making of the order was contested by a person;

1. Each of the parties made allegations of violence and intimidation one against the other.  However they are particularly historical and are of no relevance in the determination of the issues before me.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. Orders that the children reside with the mother in the suburbs of Sydney in New South Wales or even that they spend time with her or communicate with her, will almost certainly lead to further litigation between the parties.  It is not something the children want.  They made that patently clear to Mr R.  Mr R was confident of their ability to make the mature and considered decisions they have not to spend any time with their mother or communicate with her.

(m)any other fact or circumstance that the court thinks is relevant.

1. No additional matters of relevance emerge for my consideration.

2. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)    has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

(b)has facilitated, or failed to facilitate, the other parent:

(i)    participating in making decisions about major long-term issues in relation to the child; and

(ii)   spending time with the child; and

(iii)  communicating with the child;

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. As I stated earlier, it is the mother’s contention that the father has deliberately and systematically denied her a role in the children’s lives.  Conversely, the mother took no action for almost four years in seeking to secure her relationship with her children through proceedings in this Court or in the Federal Magistrates Court.  In my view, each is at fault in failing to maintain a meaningful relationship between the children and their mother and to facilitate communication between the children and their mother.

2. I am satisfied that the point is now well past when it would be in the children’s present best interests to re-establish that relationship. 

3. The children are entitled, as they grow older, to make their own determination in that regard.  At paragraph 20 of Mr R’s report (quoted above at paragraph 17) S appeared to entertain some remote possibility of having some contact with his mother in the future.  To be able to make their own decisions they will need to know how and where to contact their mother.  It is not in their interests for their mother to have any contact details for them.  To Mr R and to this Court she has demonstrated an inability to be child focussed in her actions.  In evidence she said that upon reading Mr R’s report that S was engaged in air cadets, she contacted the local air cadet unit and endeavoured to track him down.

4. I will order that the father provide the mother’s address to the children should they ever ask to communicate with her.  I will further give liberty to the children to secure the mother’s contact details from this Court’s file and will request that Mr R inform the children of the Orders made by me.  I believe it appropriate that they be reassured by him that their lives will not be disrupted and that they will remain where they are without communication from their mother. Equally though, I want them to hear from Mr R that they will always be able to find their mother through the Court file should they ever wish to do so.  It will therefore also be important that the mother ensure that her current contact details and any changes are advised to the Court.

Parental responsibility

1. In his Response filed 15 March 2007, the father sought sole parental responsibility for the children.  In my view that is an appropriate order to make.  The father should not be hampered in any way in his role and responsibilities towards his children.  Given my determination that the children should reside with their father and not spend any time with nor communicate with their mother, it is appropriate that the father has all relevant powers, duties and responsibilities to his children.

Conclusion

1. After the defended proceedings before him in 2002, Federal Magistrate Scarlett had this to say in his Reasons delivered on 20 December 2002:-

   “Conclusions

   59.The matters that I have referred to above point clearly to a finding that the children’s best interests lie in residing with their father as against their mother.  The mother’s erratic behaviour and improbable accusations would, to my mind, serve to unsettle the children if they were to reside with her.  There is clear evidence that the child [C] would prefer to live with her father, and that she has a strong bond with her brother, which would not indicate to me that the children should reside with different parents.

   60.The poor attendance by [S] at school in 2001, and the mother’s bizarre behaviour at the child’s school (leading to her being banned from the premises) give me little or no confidence that [S’s] educational needs would be catered for by the mother.  The mother seemed to display no insight into the detrimental effect that would be had on the child’s education if he were to continue his rate of absence from school, being kept home for such reasons as ‘constipation’.  On the other hand, I am of the view that the father has shown a concern about the children’s education and he would be minded to ensure that their education proceeded appropriately.

   61.The father has formed a relationship with [the children’s stepmother], and the children seem to have a positive relationship with her.  There were allegations of violence in the former relationship, which would have had a deleterious effect on the children’s psychological well-being.  There is no suggestion of any violence or abuse in the relationship between the father and [the stepmother].  [The stepmother] gave evidence in the proceedings, and I formed the view that she was a stable person who would be seen as a positive figure in the children’s lives.

   62.Whilst the mother was the children’s primary caregiver prior to the separation, it is well established that the Court should not hesitate to change the existing residence arrangements if they are predictably more detrimental to the children’s welfare than the proposed alternative (Raby (supra); Watts (1976 1 Fam LR 11; FLC90-046).”

2. It would seem that in a number of respects, little has changed over the past five years.  The children’s best interests are clearly served by living with their father.  The mother’s self focussed attitude and approach to these proceedings and to her children disqualifies her from taking any current role in their lives.  That is not to say that the children will not seek her out in the future and seek to re-establish a relationship with her.  However, it is clear on the evidence that I must dismiss her application and permit the children to continue living in a safe, secure and happy environment with their father.

3. In those circumstances I can see no merit in restraining the father from taking the children overseas.  However, that should be confined to holidays or visits.  Given that the children may one day seek to re-establish a relationship with their mother, it would be inappropriate that he be granted permission to relocate overseas with the children without a further and more detailed determination of that issue, by the Court.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  22 April 2008