Vaughan and Vaughan and Anor
[2009] FMCAfam 1271
•30 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAUGHAN & VAUGHAN & ANOR | [2009] FMCAfam 1271 |
| FAMILY LAW – Parenting orders – interim orders made whilst final hearing part heard. |
| Family Law Act 1975, Part VII |
| Goode and Goode [2006] FAMCA 1346, (2006) FLC 93-286, (2007) 36 FamLR 422 |
| Applicant: | MS VAUGHAN |
| First Respondent: | MR VAUGHAN |
| Second Respondent: | MR SCOTT |
| File Number: | TVC 48 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 26 November 2009 |
| Date of Last Submission: | 26 November 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 30 November 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Wallace |
| Solicitors for the Applicant: | Ross Lawyers |
| Solicitor for the First Respondent: | Mr P Smith |
| Solicitors for the First Respondent: | Curtis Gant Lawyers |
| Second Respondent: | In Person |
| Independent Children’s Lawyer | Ms O’Rourke |
ORDERS
The child [X] born [in] 1997 live with the first respondent Mr Vaughan;
The child spend time with the second respondent Mr Scott from
8 January 2010 until two days before the recommencement of school;
The child have telephone communication with all parties at any reasonable time;
The first respondent ensure [X] and [Y] telephone the mother on Christmas Day and [X] telephone his father on Christmas Day.
Handovers for time spent with are to occur as agreed between the parties and failing agreement to occur at McDonalds Family Restaurant in [suburb omitted].
Each party is restrained from denigrating each other or their partners to or in the presence of or hearing of the children;
Each party is restrained from discussing these proceedings with the children or in the presence or hearing of the children.
The first respondent and the second respondent are to try to organise a weekend where [X] can spend time with the second respondent before the end of the school year.
The matter is adjourned to 29 March 2010 for continuation of the final hearing allocating 4 days.
All parties file and serve any updating affidavits upon which they intend to rely on by 4.00 pm 26 February 2010.
Each party file and serve an updated outline of case document 2 clear days prior to the hearing setting out:
(a)a precise minute of order sought;
(b)a list of documents to be read in their case;
(c)a chronology;
(d)a list of issues for determination; and
(e)a brief summary of argument
Liberty to relist the matter within 14 days in relation to the appointment of a Single Expert.
IT IS NOTED that publication of this judgment under the pseudonym Vaughan & Vaughan & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
TVC 48 of 2008
| MS VAUGHAN |
Applicant
And
| MR VAUGHAN |
First Respondent
| MR SCOTT |
Second Respondent
REASONS FOR JUDGMENT
On 11 August 2009 I commenced to hear an application for parenting orders in relation to the child [Y] born [in] 1999. During the course of that hearing I became concerned about the welfare of the child [X] born [in] 1997 and adjourned the proceedings to allow the first respondent Mr Vaughan to amend his application to seek parenting orders in relation to [X]. Whilst [X] is not the biological child of the first respondent he sees Mr Vaughan as his psychological father as he was his stepfather for the majority of his life.
[X]’s natural father Mr Scott intervened in these proceedings and the matter has been set down for a continuation of the hearing in March 2010.
An updated family report was prepared by Mr Paris and released by the court on 17 November 2009 to take into account developments that had occurred since the previous report was released on 19 January 2009 and to incorporate an assessment in relation to [X]. The matter was set down for a directions hearing on 26 November to ensure that the matter was ready to proceed to final hearing in the March sittings.
It came to the first respondent’s attention that since the preparation of the report [X] had gone to live with his natural father and therefore brought an application in a case seeking interim orders for [X] to live with him. The second respondent Mr Scott filed a response seeking an order for [X] to live with him until the end of the 2009 school year and then return to his mother. The mother filed a response seeking interim orders for [Y] to return to live with her and for [X] to return to live with her at the end of the 2009 school year.
At the commencement of the directions hearing on 26 November I indicated that as the application in a case had been filed I would hear an interim hearing notwithstanding I was in the middle of the part heard final hearing. Ms O’Rourke who was the Independent Children’s Lawyer for [Y] sought an order that she be appointed the Independent Children’s Lawyer for [X] and that order was subsequently made.
Ms O’Rourke then took an opportunity to talk to [X] as Mr Scott had kindly brought [X] to court for that purpose.
After some discussions during the day the parties’ positions shifted slightly. The first respondent Mr Vaughan maintained that he wanted [X] to live with him immediately until the matter can be finally determined. Mr Scott also sought that [X] continue to live with him. However he no longer sought that [X] be returned to his mother in the New Year. The mother also sought that [X] continue to live with Mr Scott until the final hearing however she preferred that [Y] return to live with her now. The Independent Children’s Lawyer submitted that it would be in [X]’s best interest for him to live with Mr Vaughan pending final hearing.
Whilst the mother sought the return of [Y] pending the final determination I was not prepared to entertain such a move given the proceedings are part heard on that issue and there has been no significant change of circumstances in relation to [Y] to warrant a reconsideration of the long standing interim arrangements for her care.
The parties commenced to live together in August 1998. The mother had two children to prior relationships: [W] and [X] and the parties had [Y] who was born [in] 1999. They were married in September 2000. They separated in March 2007. The mother relocated to Townsville in January of 2008 after forming a relationship with Mr R. In 2008 Mr Vaughan was convicted of assault on [W] and this conviction was confirmed on appeal. I do not propose to set out a detailed history given this is an interim decision.
The current interim parenting orders in relation to [Y] were made by His Honour Federal Magistrate Coker in Townsville on 26 March 2008. They provided for Mr and Ms Vaughan to share their parental responsibility for [Y] and for [Y] to live primarily with the father. Provision was made for [Y] to spend time with her mother who is living in Townsville, during the school holidays and for unlimited telephone time. Provision was also made in the event the mother returned to live in the [M] locality for the child to live with each parent on a week about basis.
Whilst the proceedings are somewhat unusual, in that I am asked to make an interim decision whilst a final hearing is part heard, I am still required to consider the issues in light of the legislative framework[1] and determine the interim dispute by considering the best interests of the child as the paramount consideration.[2]
[1] Goode and Goode [2006] FAMCA 1346, (2006) FLC 93-286, (2007) 36 FamLR 422
[2] ss.60CA, 60CC
In determining this matter I have had regard to all of the affidavits thus far filed in the proceedings not just those filed for the interim hearing along with the two family reports prepared by Mr Paris. The independent children’s lawyer also tendered documents produced on subpoena from the Department of Education and Training in Queensland.[3] This exhibit showed that [X] has been having a difficult time at school between the 6 April 2009 and 11 September 2009 and has on at least two occasions been suspended for periods of five days. The school documents indicate that he has been exhibiting anti social behaviour, bullying/harassment, verbal aggression, physical aggression, non compliance with directions, avoidance behaviour and on one occasion he is alleged to have indecently exposed himself to another student and parent. During the course of the evidence of the mother in August it became apparent that [X]’s behaviour whilst in the mother’s care has been challenging, to say the least, for a significant period of time. The mother alleges that these behavioural changes occurred after [Y] returned to live with her father and the mother blames Mr Vaughan for undermining her parenting. He denies this.
[3] ICL 2
The child [X] has consistently wanted to live with Mr Vaughan since the first family report was prepared in January 2009. He has maintained that position and Ms O’Rourke informed the court he told her, that notwithstanding enjoying his time with his natural father and his family in [O] in recent weeks, he still wishes to live with Mr Vaughan and his sister [Y].
The Independent Children’s Lawyer highlighted a number of issues for the court to determine notwithstanding that these proceedings were interim proceedings. Those issues were:
a)Comparative relationships between [X] and Mr Scott, (biological father) and between he and Mr Vaughan (psychological father).
b)[X]’s views in regards to living with the following:
i)Mr Vaughan, [Y] and the paternal grandparents;
ii)Mr Scott and his family,
iii)The mother and her partner.
c)The benefit of [X] living with [Y].
d)The affect on [X] if he lives with Mr Scott pending final hearing and thereafter lives with Mr Vaughan or the mother.
e)The affect on [X] if he lives with Mr Vaughan pending final hearing and thereafter lives with either Mr Scott or the mother.
f)The nature of the risks of physical, psychological or sexual harm to which [X] might be exposed if he was to live with Mr Vaughan pending final hearing.
During the course of the submissions I expressed some concern as to the number of schools that [X] has attended in the 2009 school year. He has been at two schools in Townsville and now is attending primary school in [O] where he is living with Mr Scott. I was concerned that if he went to live with Mr Vaughan before the end of the school year, which is only four weeks away, that that would be a fourth school and that given he has had a very destabilising couple of years that it might be in his best interests to remain where he is until the end of this year. In 2010 he is due to go to high school and it was the intention of
Mr Scott that he would go to high school in [O] or [T]. Mr Vaughan was considering whether or not [X] should repeat his final year of primary school but was open to him going to high school depending on the views of the relevant school principals. It was submitted on behalf of Mr Vaughan that whilst there would be a further change of school in the event that [X] returned to live with him he would however be returning to his old school with his peers and also the same school that [Y] attends. Whilst recognising the issue of stability is an important one Ms O’Rourke submitted that if the court was of the view that [X] should be living primarily with Mr Vaughan pending the final hearing it would be preferable that he move now as any delay may be fraught with further difficulties.
Weighing up the issue of stability with the consistently held desire of [X] to be with the first respondent and the benefit for both [X] and [Y] to be together I considered that it would be in [X]’s best interests to return to live with Mr Vaughan now. I accept that there is some risk of destabilisation in yet another change of school however I am somewhat relieved that he would be returning to a school which he had always attended until the mother’s relocation to Far North Queensland and he would benefit from being with his former school friends prior to any change to high school.
It is clear that [X]’s relationship with his mother has been compromised for some time. He clearly does not have a good relationship with the mother’s new partner Mr R. Mr R has admitted to the family report writer that he has physically grabbed [X] on a couple of occasions although he does not accept [X]’s allegations that he has been choking him on a number of occasions. [X] has expressed a clear wish to not see his mother during the school holidays this year although he did stress that he wishes to do so in the future. He does not however want to return to Townsville and does not want to live with Mr R at all. All parties agreed that if I made an order for [X] to live with either
Mr Scott or Mr Vaughan that should [X] express a wish to spend time with his mother in the absence of Mr R and in the [M] or [O] areas that they would facilitate this. It is important for [X] to re-establish his relationship with his mother but given his age all of the adults involved will need to be patient and allow him some space to make that move back to his mother.
At the final hearing the court will be in a better position to determine the reasons why that relationship has been compromised. The mother alleges that her parenting has been undermined by Mr Vaughan and
Mr Vaughan denies this. There can be many reasons why young teenagers rebel and seek out the company of those that are likely to be involved anti social behaviour. Clearly [X] needs to be relieved of whatever pressures he is currently experiencing and I am satisfied at this stage it would not be appropriate for him to live primarily with his mother. However it is important that all parties do their upmost to encourage him to repair his relationship with his mother.
I am satisfied the [X] has a positive relationship with Mr Vaughan. Whilst it is more than two years since [X] has lived primarily with
Mr Vaughan it is clear that Mr Vaughan has been his primary male role model for nearly all of his life. [X] also misses his sister who lives primarily with Mr Vaughan. I am satisfied that [X] would benefit and it would be in his best interests if he is able to return to live with
Mr Vaughan so that their relationship can resume and for him to further develop his relationship with his sister. Mr Vaughan and [Y] also live with the paternal grandparents and I am satisfied that [X] has a positive and beneficial relationship with them as well.
[X] is fortunate that Mr Scott has been there to provide care for him when things have not gone well for the mother. Mr Scott has not been a constant in [X]’s life however. The parties disagree as to why that is. This being an interim determination I am not in a position to determine why that is so and if that becomes an issue that must be decided it is best left for a final hearing where the evidence can be properly tested. Notwithstanding any reasons why Mr Scott has not previously been available to develop a long term relationship with [X] I am satisfied that [X] does want to have a relationship with him and I am further satisfied that Mr Scott wants to be there and available for his son. I am satisfied that [X] has been appropriately cared for whilst with Mr Scott these last few weeks and earlier when the mother separated from
Mr Vaughan. The Independent Children’s Lawyer informed the court that [X], whilst not being critical of Mr Scott, still wanted to be with Mr Vaughan. I am therefore satisfied that [X] is seeking out his primary relationship with Mr Vaughan but wishes to maintain and develop his relationship with Mr Scott.
Whilst children’s views should not always be determinative of parenting matters they become more significant as children get older. They are also important when a child’s relationship with a parent has been compromised. I accept the evidence is that [X] wishes to live with Mr Vaughan, [Y] and [Y]’s paternal grandparents and that he has held this view consistently for some time. Whether this view has developed as a result of any manipulation by Mr Vaughan is a matter that can only be determined at a final hearing. At this stage given the trouble that [X] has found himself in I propose to give some weight to his views.
The time between now and the final hearing may afford a reality test for [X], which would help him to further consider his views. The Independent Children’s Lawyer will no doubt interview [X] again prior to the final hearing to assist the court in making its final determination next year. I am satisfied that [X] does not wish to live with his mother at this stage but that he does not want to permanently damage his relationship with her. It is a credit to the mother, although no doubt difficult for her, in her acceptance after hearing from the Independent Children’s Lawyer and hearing the proceedings that she accepted [X] needed some space from her at the moment.
A significant issue in this case is the benefit to [X] of him living again with [Y]. Sibling relationships are vitally important and this family dynamic has been severely compromised over the last few years. The eldest child of the mother [W] lives with the maternal grandmother in [S] however she has had a difficult time and is a deeply troubled child. The circumstances surrounding this will no doubt be further explored at the final hearing. [X] has been missing [Y] and would benefit by him living in the same household as her. There would also be benefit to [Y] in this. I consider this to be an important consideration given that his home circumstances have changed since the commencement of the hearing.
I had considered [X] remaining with Mr Scott pending the final hearing in order to provide him with a sense of stability however when I weighed up the benefit to [X] of living with [Y] and his long standing desire to be with Mr Vaughan I considered it more appropriate for him to live with Mr Vaughan and to spend holiday time with Mr Scott.
The Independent Children’s Lawyer submitted that the potential outcome of [X] continuing to live with Mr Scott after the final hearing was not strong and submitted that the court would need to take into account the affect on [X] if he was to remain living with Mr Scott pending the final hearing and then moving to either Mr Vaughan or the mother. Whilst I understand the submission made by the Independent Children’s Lawyer and whilst prima facie it would seem that the case of Mr Scott is not strong I do not consider that factor should be given much weight at the interim hearing. This case has had a number of turns since it started and it maybe at the end of the final hearing I form the view that [X]’s best interests would be served either living with
Mr Scott or having a significant and substantial relationship with him.
The issue raised by the Independent Children’s Lawyer to which I’ve just referred is a valid one in the alternative as well. If [X] is to live with Mr Vaughan now but then goes to live with Mr Scott or the mother there will be a sense of instability for him. This is unavoidable unfortunately in a case such as this.
A significant issue in this case is the mother’s allegation that both children are at risk of physical, psychological and or sexual harm if they are to live with Mr Vaughan. This is a serious issue to which I have had significant regard.
The allegations made by the mother are ones that will need to be determined at a final hearing. [Y] has been living with Mr Vaughan since March 2008 and I have no evidence to suggest that her care has been compromised whilst with him. I am comforted in knowing that the paternal grandparents also live in the home. I do know that [X]’s psychological and physical care has been compromised in the mother’s home for whatever reason. At the final hearing I will be in a better position to determine the strength or otherwise of the allegations made by the mother. I am however satisfied given that there has been no incidents brought to my attention as to the care of [Y] whilst with
Mr Vaughan that it would be appropriate for [X] to live with
Mr Vaughan and that any risk in the interim is not unacceptable.
For these reasons on 26 November I made the orders set out at the commencement of this judgment.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 30 November 2009