Terry and Grant
[2011] FMCAfam 282
•15 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TERRY & GRANT | [2011] FMCAfam 282 |
| FAMILY LAW – Children aged 13 & 11 – interim hearing – final orders made in July 2008 following contested final hearing – children ordered to live with mother – younger child alleged to be unwilling to return to mother’s care following disagreement – poor parenting relationship – separation of siblings – child ordered to be returned. |
| Applicant: | MR TERRY |
| Respondent: | MS GRANT |
| File Number: | ADC 2789 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 15 February 2011 |
| Date of Last Submission: | 15 February 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 15 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Womersley |
| Solicitors for the Applicant: | Womersley & Co |
| Counsel for the Respondent: | Ms Ryder |
| Solicitors for the Respondent: | Legal Services Commission of SA |
ORDERS
The father return the child [Y] born [in] 1999 to the mother’s residence by no later than 6:00pm on 15 February 2011.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The arrangements for the care of the children [X] born [in] 1997 and [Y] born [in] 1999 made pursuant to orders on 14 July 2008 by which the children live with the mother and spend alternate weekends in the care of the father from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday) to recommence on 25 February 2011.
The respondent file and serve a Response and Affidavit in support within 21 days of today’s date
Pursuant to section 11F of the Family Law Act the parties attend a child inclusive family dispute resolution conference at the Family Court of Australia with a family consultant on 22 March 2011 at 9:30am, to discuss the care, welfare and development of the children [X] born [in] 1997 and [Y] born [in] 1999 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
Further consideration of the matter is adjourned to 1 April 2011 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Terry & Grant is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2789 of 2007
| MR TERRY |
Applicant
And
| MS GRANT |
Respondent
REASONS FOR JUDGMENT
The matter of Terry & Grant is listed before me today. The applicant is Mr Terry. The respondent is Ms Grant. The parties are the parents of two children, [X], who was born [in] 1997, and [Y], who was born [in] 1999.
This is not the first time that I have dealt with the parties. On 14 July 2008, following a three day trial in June and July 2008, I delivered judgment in respect of earlier applications in respect of arrangements for the two children.
At that time, I ordered that the children should live with their mother. I also ordered that the father should spend regular time with the children, particularly during school holidays and on school weekends.
It was a significant feature of the orders made that the mother was to have sole responsibility for making decisions regarding the education and the health of the two children concerned. I provided reasons as to why I had reached that view. Essentially, it was because the parties’ relationship with one another as parents was not a good one.
In reaching that conclusion, I was guided by the evidence of Ms C, who had been asked to write a family report to assist the Court. I was also influenced by the fact that Mr Terry had, in the past, unilaterally removed one of the children from Ms Grant.
At that stage it was Mr Terry’s position, as I recall, that he wanted the children to live in a shared care arrangement. I said this in my judgment at paragraph 142:
It was Ms C’s frank conclusion that any shared parenting arrangement for [X] and [Y] was untenable and likely to be highly detrimental to the children concerned who were already exhibiting signs of emotional stress and maladjustment as a result of an unacceptable level of parental conflict. I have no reason to disregard this conclusion which I hold myself. Ms C went as far as to say it would be disastrous for the children to be parented in a shared care arrangement.
The background to much of the case was that Mr Terry had many vehement and stringent criticisms of the mother’s parenting of the children. In effect, he categorised her as a poor and lax parent. He complained that the children were neglected, that their health was not attended to properly, that their clothes were dirty and dishevelled, and they had head lice.
Ms C, who has extensive experience, not only as a psychologist but also as a school teacher, found no evidence that the children had been neglected and, as I recall, she was concerned at those criticisms of the father which she found to be unfounded.
What struck her about the nature of the parties’ parenting relationship is that the parties had no facility to adopt a common approach in respect of the parenting of the children. Even at that early stage, Ms C was concerned at the potential for [Y] to manipulate her parents, with her father’s tacit or explicit approval. Ms C thought it highly inappropriate for children of the ages of [X] and [Y] at that stage – then they were eight and 10 – to determine what their care arrangements should be.
She was also critical of Mr Terry for suggesting that it was appropriate for there to be some sort of negotiation between [Y] and her parents in respect of issues to do with her care. Overall, Ms C was of the view that the children needed certainty and predictability in the arrangements for their care, particularly what time they should spend with their father.
Mr Terry commenced these proceedings on 1 February 2011. At his request, they were given a return date on 15 February 2011. I am told Ms Grant was served last week. At this stage, she has not had an opportunity to respond to the father’s application.
The position at present is that [Y] and [X] are separated from one another. [X] is with his mother and [Y] is with her father. It would seem to be the position that the children spent approximately equal periods of time, with one another, during the school holidays. It is the father’s position that [Y] has recently been saying that she wants to live with him.
It seems to be common ground between the parties that there was some form of dispute between [Y] and her mother. Mr Terry, who has prepared his own documents in this matter, describes it as a massive fight. He asserts it came about because [Y] wanted to live with her dad after her mother had allegedly told her that if she was not prepared to live by her (the mother’s) rules then she should go and live at her dad’s. What precisely was said is, of course, unclear to me.
The mother’s position, albeit not expressed in an affidavit form as yet, was that the argument was about what [Y], a child of around 12 years of age, was to wear to school – not an uncommon area of dispute between a parent and a child of [Y]’s age. The mother would not say it was a massive dispute.
The father, through his counsel, says that the mother has been giving mixed messages to [Y]. Children frequently rebel against their parents’ authority, teenagers more than younger children. It is part of growing up, I suspect. I think that is what the psychologists would tell me. They would also say that children do it because they know they are loved by their parents and it will not have any long-term consequences in respect of that love.
Anyway, I do not know in any detail what this argument was about, but it is noteworthy, I think, that [Y] spent a significant period of the school holidays in the care of her mother and with her older brother.
However, towards the end of January, after there was some meeting between the parties at the [omitted] Shopping Centre which led the father to be concerned, it seems, that [Y] was not being properly supervised, something has occurred again between mother and daughter and now it is the father’s position that [Y] is vehemently refusing to return to her father.
Concurrently with Mr Terry’s application, he has filed a notice of child abuse. It is a significant document. Its purpose is to alert the Court to cases where there are concerns that a child has been neglected or abused or exposed to violence.
The father alleges that the mother’s partner, known only as [Mr P], grabbed [Y] violently, throwing her to the ground. He further says that the mother’s partner, [Mr P], poked [Y] and [X] in the neck with a wooden stick. He further asserts that the mother’s partner has twisted the arm of another child, [Z], the partner’s son, in the presence of [X], causing redness to the child’s arm.
Apart from the father’s assertions of these assaults, which it would seem he has learned of through one of the children, there is no objective or independent evidence to support those assertions. Although I am concerned about them, it is not unknown, in proceedings such as these, involving highly conflicted partners, for information to be given or assume significance, which it does not warrant.
The father’s position is that he has tried to persuade [Y] to return to live with her mother, but he is at this stage just following up on what the child has said. He also asserts that the child is at some serious risk of psychological harm, and he alludes to the possibility that she may be considering self-harming.
His support for this assertion comes from a posting, which she has apparently made on Facebook, on 12 January at 4.02 pm, when she says, apparently:
“I want to die in a hole.”
What context she has made that statement in is unclear to me. I don’t know whether it is youthful hyperbole, or whether it is some form of slang or attention seeking. I just do not know.
The father says it should be taken at face value. He also alludes to his awareness that it is not beyond the bounds of possibility that [Y] is manipulating her parents. Certainly that was a concern Ms C had in the earlier proceedings.
The mother’s position, which at this stage is not formally articulated, is that the two children should be reunited in her care as the orders which I made on 14 July 2008 stipulate.
In this case, as in many cases involving children, I have to make some sort of assessment of the risk, which is contained in the prospect of [Y] returning to her mother’s care. It may be harmful to her to make her do something she does not want to do, but at the end of the day, she is a child of tender years. I am of a sufficiently conservative view, and perhaps of sufficient age, where I still think that children should do what their parents tell them to do.
I do not think there is an unacceptable risk that [Y] will come to harm if she is returned to the care of her mother, as the orders of 14 July 2008 envisage. I am not of the view that her views, as reported by
Mr Terry, are of such moment that they should automatically be given effect.
In particular, in assessing those views, I have to consider the context in which they are expressed. I also have to think about any other factors which may be influencing them, and also, and perhaps self-apparently, it may also be the position that Mr Terry is not the best mechanism for those views to be reported.
In the past, I found Ms Grant to be a capable parent. I found that it could not be said that she was not supportive of the relationship of the children with their father. It was also my finding that this was not always an easy thing to do, given the nature of the parties’ relationship with one another.
Mr Womersley points out, rightly, that [Y] has some entitlement to have her views canvassed. But I have to look at her maturity and, in the short term, I do not think it is likely to be in the best interests of either child to be separated from one another, or to be separated from the person, whom I found to be in July 2008, to be the person best placed to provide for their parenting needs, that is their mother,
Ms Grant.
For these reasons, pending any necessary further investigation of the matter, I have come to the view that the father should return [Y] to the mother’s residence no later than 6:00pm today. Thereafter the current orders, made on 14 July 2008, regulating the care and parenting of both children should resume with the father’s time with the children to recommence on Friday, 25 February 2011.
As I foreshadowed, I will make arrangements for the parties to attend a child inclusive family dispute resolution conference. That will be on 22 March of this year at 9.30 in the morning. I will also make orders for the filing of answering material by the mother.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 15 February 2011
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