VDM and R (No.2)
[2003] FMCAfam 76
•18 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VDM & R (No.2) | [2003] FMCAfam 76 |
| FAMILY LAW – CHILDREN – Residence – contact – best interests of child – high level of hostility between parents – child aged seven years residing with mother – father seeks to re-open residence issue – mother seeks non-contact order. Family Law Act 1975, ss.60B, 68F, 68G M and M (1988) 166 CLR 69 |
| Applicant: | J W V D M |
| Respondent: | C S R |
| File No: | DGM 147 of 2002 |
| Delivered on: | 18 March 2003 |
| Delivered at: | Parramatta |
| Hearing Dates: | 23, 24 and 25 July 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitor for the Applicant: | Ryan Carlisle Thomas |
| Solicitor for the Respondent: | In person |
| Counsel for the Child Representative: | Mr Arnold |
| Solicitor for the Child Representative: | Youth Advocacy and Legal Service |
ORDERS
All previous parenting Orders are discharged.
The child of the parties J B V D M born 9 February 1995, is to reside with the Applicant father with effect from the first Monday after the conclusion of the current school term.
The Respondent mother is to have contact with the said child as follows:
(a)For the second half of each school holiday period with the exception of the Christmas/January school holidays in even numbered years commencing in 2003 and the first half of each school holiday period in odd numbered years commencing in 2004;
(b)For the second half of the Christmas/January school holiday period commencing in 2003 not to include Christmas Day and alternating each year with the first half of the said school holiday period including Christmas Day;
(c)By telephone at all reasonable times; and
(d)At such other times as the parties shall agree;
The mother’s contact with the said child is to be suspended for a period of four (4) weeks from the date the child comes in to the care of the father and his wife, A V D M.
For the purpose of the mother’s contact with the said child:
(a)the father is to provide the wife with details of flight arrangements no less than seven (7) days prior to any departure; and
(b)the parties are to be equally responsible for the child’s travel costs.
The Mother and Father are to retain the joint long-term responsibility for the care, welfare and development of the said child but each party is to be responsible for the day to day welfare of the child whilst the child is in the care of that party.
The parties are to inform each other as soon as possible of any medical emergency or hospitalisation concerning the child and for this purpose each party is to ensure that the other is provided with a telephone number upon which the child can be contacted during the time that the child is in the care of that party.
The father is to do all such things and give all such authority as may be necessary to the Principal of any school attended by the said child to forward to the mother at her expense on a regular basis copies of all school reports, newsletters, bulletins, parent notes and information about school photographs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
DGM 147 of 2002
| J W V D M |
Applicant
And
| C S R |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of a boy called J B V D M, who was born on 9th February 1995, to discharge Orders made by the Family Court providing that the child should reside with the mother and the father should have contact. The father seeks that the child should live with him.
The proceedings were commenced by the father filing an Application on 7th February 2002, seeking orders that the mother should only telephone the child once a week whilst he was on contact with his father, and that the mother act “in a responsible manner and to encourage contact with the father”.
The mother filed a Response on 13th February 2002, seeking the following orders:
a)that the previous orders made on 14th August 2000 and 17th September 2001 be discharged;
b)that the father “be required to seek the court’s approval of any further applications for orders to be served on the wife”;
c)that the hearing of this and future applications be in a court closest to the mother’s place of residence;
d)that the father “in this and future applications be solely responsible for the entire Wife’s legal, telephone, travel and accommodation costs associated with the application”;
e)that the child live with the mother;
f)that the father have contact with the child:
(i)at the child’s discretion and only for one period of up to seven days every school holiday period;
(ii)by telephone each Saturday at 9.00 am;
(iii)for such further periods as the parties should agree;
g)the father to provide to the mother flight details for the child seven days beforehand;
h)the father to pay the total cost of all contact visits;
i)the father to make the child available for telephone contact daily whilst on contact; and
j)the parties to be restrained from removing the child from the Commonwealth of Australia.
The father filed a Reply on 19th March 2002. In his Reply, the father seeks orders to this effect:
a)that the child reside with him; and
b)that the mother have contact with the child at times agreed between the parties.
Orders were made for the child to be legally represented and for the preparation of a welfare report. A report dated 17th July 2002 was prepared by Mr Vincent Papaleo.
The mother filed an affidavit on 25th June 2002, which contained an annexure, setting out the orders that she now seeks. The most significant change is that the mother now seeks an order “That the Husband be and hereby is restrained from contact with the said Child.” The mother went to explain this application by means of a small paragraph headed “Basis of Orders Sought”, in which she said:
“The basis of the orders sought is to remove the reasons for and discourage the acrimonious behaviour of the Husband toward the Wife, and the Husband’ lack of regard toward the said Child’s will, which has been affecting the Child’s emotional and psychological environment, health, growth and development.”
Background
There is a lengthy history of litigation between the parties about this child. The father was born on 6th June 1969 and the mother was born on 26th August 1965. The parties commenced to reside together in January 1994 and were married on 14th April of that year. There is one child of the marriage, J B V D M (known as B) who was born on 9th February 1995. The parties separated on 8th February 1996, the day before B’s first birthday. The parties were living in Tasmania at the time.
The father has remarried. He met his present wife in the middle of 1996, and they were married on 10th May 1997. There are two children of that marriage, twin boys named D and N, who were born on 1st February 1998.
The father commenced proceedings in the Family Court of Australia at Hobart seeking that the child should reside with him. The matter was settled on 30th October 1997, and orders were made by consent providing that the child was to reside with the mother and the father was to have contact with him, including overnight contact. By this time, the father was residing in Melbourne.
The mother left Tasmania in October 1998 and returned to reside in B H, New South Wales, with her mother. The mother moved back to Tasmania in January 1999. Whilst in Tasmania, the mother met a man named Meno B, and in March 1999 she travelled to Townsville, and commenced to reside with him.
The father had contact with the child in April 1999, and, after some conversations with him, made a complaint about the mother to the Queensland Department of Family, Youth and Community Care. The father also commenced residence proceedings and kept the child with him.
On 18th May 1999, the Family Court ordered that the child should be returned to the mother in Townsville. The mother separated from Mr B in October 1999, but remained living in Townsville until December of that year, when she again moved back to B H.
The father’s residence application came on for hearing in the Family Court at Dandenong on 14th August 2000. A Court Counsellor had prepared a Family Report for those proceedings. Orders were made by consent that the child should reside with the mother and the father should have contact with him during specified periods of the school holidays. There were also orders about telephone contact, a restraint on removing the child from the Commonwealth and a restraint on the use of corporal punishment. The particular order reads:
“That neither party shall use corporal punishment in respect of the child and shall limit discipline to verbal reprimand and ‘time out’, and neither party shall allow any other person to use corporal punishment in respect of the child and ensure that they limit discipline to verbal reprimand and ‘time out’.
In about August 2001 the mother met a man named L R, and she married him on 29th September of that year. The father commenced proceedings on 5th September 2001, seeking to restrain the mother from removing the child from school before the end of the school year and relocating his residence to Adelaide. The mother and child did relocate to Adelaide.
On 22nd January 2002, the father commenced contravention proceedings alleging that the mother and her husband were disciplining the child in a way that was contrary to the restraint on the use of corporal punishment set out in the consent orders of 14th August 2000. At the same time, he filed an Application seeking orders that the mother should enrol the child at a “mainstream” public school or Catholic school, and that she should be restrained from enrolling the child in any independent school.
On 7th February 2002, the father filed the Application to which I have referred in paragraph 2 above. The Application is headed “amended copy”. All three applications were returnable on 18th February 2002. The mother filed her Response (to which I have referred in paragraph 3 above) on 13th February 2002.
When the matter came before the Court on 18th February 2002, the Court made an order that the parties attend confidential counselling and that the child should be legally represented. The matter was adjourned to 19th March 2002. On that date, orders were made by consent. The parties agreed to share the cost of a welfare report to be prepared by a psychologist for the purpose of the proceedings. The father withdrew his two applications filed on 22nd January.
The proceedings were listed for final hearing on 23rd, 24th and 25th July 2002.
Evidence
The father gave evidence by affidavit and also gave some brief oral evidence in chief. He said that he was concerned about the findings made by the psychologist, Mr Papaleo, in the welfare report, that B was quite a disturbed child. He said that he would arrange “some type of psychiatric treatment”[1] for B if he were to reside with him.
[1] Transcript, 23.7.2002, page 33
The father’s evidence was that he had always sought that the child should live with him because of his concerns about the mother’s stability. He deposed to having consented to the residence orders in October 1997 because of advice that he had received from his solicitor at the time. He said that when he had appeared at the Family Court at Dandenong on 14th August 2000, he was unrepresented, the Family Report had recommended that the child should continue to reside with the mother, and the judge had indicated “that in the circumstances where the Respondent had left Meno, was living in B H with her mother and there was no recent evidence of psychiatric illness, I would not succeed in my application for residence.”[2]
[2] Father’s affidavit sworn 12.7.2002, paragraph 34.
The father’s concerns about the stability of the mother concerned what he saw as her tendency to change residence from one State to another, her pattern of forming relationships with men at short notice, and the fact that, in his opinion, the men with whom she formed relationships were unsuitable to perform the role of a step-father to B.
The father deposed that he was “flabbergasted” to hear from the mother in August 2001 that she intended to marry Mr R, whom she had known for less than a month. He did not agree to her proposal to move from B H to Adelaide partway through the school year, nor did he agree to the mother’s proposal to enrol the child at the S C School, which has a policy of using corporal punishment. He objected when he heard that both the mother and Mr R were using corporal punishment on the child at their home.
The father was subjected to cross-examination by the mother and by Mr Arnold, counsel for the child representative. The mother put to him that the child did not want to live with him. He said that he was aware that the child had said that to him recently, but before then there had been a very good relationship between them. The father made it clear that he was concerned about the use of corporal punishment on B, and wanted to make sure that he was living in a safe environment. He justified his actions in again seeking residence by saying:
“As a father I think it’s irresponsible for me if I don’t take action and go for residence – I believe B will have an upbringing where he’ll be very sad not to see his father. I believe every child should see his mother and father.”[3]
[3] Transcript 23.7.2002, page 34.
The mother asked him about his ability to cope financially if he had to support the child on a full-time basis. The father replied that he was now working on a full-time basis and he would make arrangements to support B, even if it meant that the family would “do without”, although he believed that the child would not have to do without anything. He said that his motivation for bringing these proceedings was to ensure that the child was in a safe environment, where he would not be subject to corporal punishment. He went on to say that he and his present wife did not use corporal punishment on their children.
The father was cross-examined by Mr Arnold, counsel for the Child Representative. He said that the child spoke to his mother on the telephone during contact periods, and that it was possible to overhear what the child was saying to his mother in those calls. He admitted that he had heard the child say to his mother “How many more nights?” about the length of the contact period. If the child asks him that, he reassures him.
The father made a point of saying that the child behaves extremely well on contact visits with him and his wife:
“We don’t use corporal punishment in our household with B. B is a happy boy when he comes to our house and I just think it’s totally out of B’s character that he can behave like that at his mother’s house.”[4]
[4] Transcript 23.7.2002, page 40
The father’s wife, A V D M gave evidence and was cross-examined. Her affidavit evidence was to the effect that she has known the child since he was 18 months old. She believes that she has a good relationship with him. She described her husband as being a committed family man who is very patient with the children. She deposed to the fact that the child was usually well behaved when he stays with them, and she supports her husband’s application for residence. She does not work and intends to devote her full time to the care of the children for the foreseeable future.
In cross-examination by the mother, Mrs V D M said that she normally uses time-out as a form of discipline, although she admitted that she had smacked her children. She no longer uses smacking as a form of discipline.
There were no other witnesses for the Applicant.
The mother gave evidence by means of an affidavit sworn on 24th June 2002 and filed the following day. In her affidavit, she claims that “There is no new evidence subsequent to the 14 August 2000 hearing in support of the orders sought.”[5]
[5] Mother’s affidavit, paragraph 3.3
She denied that she had ever been diagnosed with a psychiatric illness, although she admitted to having suffered severe depression, which she attributed to the father’s negative impact on her. The mother objected to a number of paragraphs in the father’s affidavit, saying that they were “scandalous, defaming of my character and vexatious litigant.”[6]
[6] Ibid, paragraphs 4.5 to 4.9
The mother claimed, in paragraph of her affidavit, that it was the father who has commenced all the proceedings in relation to the child. She stated that the proceedings were costly and sought an order to stop the father from bringing further proceedings.
The mother states that she chose to withhold details of the child’s school enrolment from the father –
“with the objective of delaying his threatened onslaught of acrimonious behaviour ie Court proceedings, until a time that I had the capacity to deal with it. Further to this, I avoided involving J with the school due to J’s history of ringing previous schools and kindergartens vexatiously.”[7]
[7] Ibid, paragraph 8
The mother alleges that she consented to the previous orders “whilst under a state of emotional duress”[8] and that the father refuses to let the child telephone her at night when he is on a contact visit. She accuses the father of subjecting the child to psychological and emotional abuse and says that the child does not want to go to his father’s residence for contact any more. She states that the child says he is “scared” when he visits his father and when he has to travel on an aeroplane.
[8] Ibid, paragraph 10.1
As part of her affidavit, the mother presented a “log” of the child’s sayings and behaviour from 29th December 2001 to 23rd June 2002, a total of 140 paragraphs covering 41 pages. In paragraph 140, the mother deposes:
“That I stopped documenting B’s behaviour at this point in time due to the need to publish this affidavit for filing at the court. If the court is interested in further logs of B’s behaviour, I will be prepared to give them orally.”[9]
[9] Mother’s affidavit sworn 24.6. 2002, paragraph 140
The detailed observation by the mother of the child’s alleged sayings and behaviour over such a period of time appears to me to be a matter of going into unnecessary detail, verging on the obsessive.
The mother annexed a number of documents to her affidavit.
The mother was cross-examined by Mr Wood, counsel for the father. He asked her why she chose to take an affirmation to tell the truth, rather than an oath, when there was evidence that the Bible was very important to her. At first she said “Because I don’t believe in swearing on the Bible”[10] but later said that she would swear on the Bible. After having been sworn, her cross-examination proceeded.
[10] Transcript 24.7.2002, page 50
The mother said that the father should have no contact with the child and she agreed that she sought orders, which would have the effect of not allowing the father to play any part in any of the decisions that would be made with respect to his future. She further agreed that she wished to have no contact with the father about the child’s welfare. There followed this exchange:
“Q. If in that setting say B is hospitalised with a very serious illness, in that setting would you feel the need to contact my client about that?---No.
There would be no issue that would occur in B’s life which would be so serious that in that setting and the setting that you got the orders that you want that you would feel moved to contact my client. Is that right?---If it was terminal, yes.”[11]
[11] Transcript 24.7.2002, page 52
The mother agreed that her husband had telephoned the father and asked him about whether he would agree to his adopting B, but said that this was done without her approval. Mr R is the father figure in her household. The mother said that she sought the order that there should be no contact to alleviate the conflict and anxiety it causes to the child and to herself.
Mr Wood went to ask her “What role in those circumstances is left in B’s life for my client?” and the mother replied “What role is left in B’s life for your client? No role.”[12]
[12] Transcript 24.7.2002, page 54
The mother denied that, if the court did not make an order refusing contact, she would find it impossible to encourage contact. She agreed that, in those circumstances, she would tell the child the virtues of having contact with his father.
The mother admitted that she had told lies to the Family Court in the past, saying that it was out of fear of the father taking her back to court. She admitted that she originally swore an affidavit in which she did not say anything about her relationship with Mr B being violent and abusive. She admitted that she had told lies in the way that Mr B had behaved towards her son.
The mother admitted that her dealings with Mrs A V D M had always been of a cordial nature, and that she regarded her as a positive influence, although the child thought differently. She said that B does not like Mrs V D M, either, because “A yells at him”.[13]
[13] Transcript 24.7.2002, page 103
The mother stated that she consented to the Orders made in the Family Court “under duress” because she did not want to agree to an order banning corporal punishment, but felt that if she did not she would have to go back to court. When she enrolled the child at the S C School she knew that corporal punishment was a disciplinary option. Her husband supported corporal punishment “as a last resort”.
The mother was cross-examined by Mr Arnold, counsel for the child representative, the following day. She elected to be affirmed on that occasion, but hastened to assure him that she would tell the truth.
The mother described a form of discipline known as the ‘card system’, but said that the child abandoned it. She said that the child’s school used corporal punishment by hitting children with a cane, known as “the rod of correction”. There was a form for parents to sign so that the school could use the rod of correction, but the father had not signed it. The mother said that she would sign the form to allow the rod of correction to be used.
There were no other witnesses to give evidence in the mother’s case.
The Welfare Report
Mr Vincent Papaleo, a clinical psychologist, prepared a welfare report for these proceedings. For the purpose of preparing his report, Mr Papaleo interviewed the father, and then the mother with Mr R. He observed the child in the presence of the father and later with the mother and Mr R. He later observed the child in the presence of the father together with Mrs V D M and their two sons. Mr Papaleo described B with his father’s family as “extremely positive, he was very settled, related warmly and easily, and seemed very much at ease.”[14]
[14] Welfare Report, page 4
Mr Papaleo described the child B as a “very tense, anxious and agitated boy.” He portrayed his father and his father’s family as unequivocally negative and his mother and Mr R as unequivocally positive. The descriptions of the child’s behaviour were a cause for concern, as he seemed not to be aware of where he belonged:
“He conveyed a lack of basic trust and certainty in his world. He did not convey a sense that the world was a safe or predictable place within which he felt contained, and he conveyed little in the way of optimism or security; quite to the contrary, he impressed as an anxious person aware of his own psychological fragility, lacking in self confidence, self esteem and positive self worth.”[15]
[15] Ibid, page 14
The child appeared to have an easy, warm and affectionate relationship with his father when they were together, notwithstanding the fact that he was negative about him when the father was not there. Mr Papaleo’s observation of the mother was that her style of interacting with the child encouraged his oppositional behaviour, “colluded with his non compliance and contributed to his anxiety”.
Mr Papaleo formed the view that the child suffers from serious psychological problems, which can be traced back to the pattern of contact when the child was very young. Between the ages of eighteen and thirty months, B spent extended periods away from his mother, which has led to anxiety and a fear of abandonment. Whilst a change of residence may exacerbate his underlying vulnerability by bringing the loss of his mother, his greatest fear, Mr Papaleo also refers to the negative impact of the mother’s life choices and suspects that her management of his behaviour has accentuated his behaviour problems.
Mr Papaleo, in his report, speaks of the need for the child to have counselling, and for him to have a stable, predictable environment. What is required, he says, is that there should be a parental regime that includes a commitment that contact will occur, no matter with which parent he resides. The child should not be allowed any choice about issues of contact or residence.
In cross-examination, Mr Papaleo stressed that he was encouraging greater cooperation between the parents, regardless of with whom the child were to reside. The mother’s proposition that the father should have no role in B’s life was very different from the manner in which he believes this child should be managed. He expressed the opinion that the mother (who had not told him of her proposal that the father should have no contact) would be less likely to be cooperative in a scheme for greater parental cooperation. He agreed that the mother held a view that the father did not have B’s best interests at heart, although he said that it was not a view that he shared.
Mr Papaleo stressed the need for the child to undergo long term and ongoing counselling to address the issues in his life, and if he were not to have that treatment he would be likely to suffer problems.
If the child were removed from his mother’s care and placed in the care of his father, he would encounter difficulties. Mr Papaleo told the court that the child
“Would be sad; he would regret it; he would be worried about his mother; he would be anxious about her and her welfare; he would have to leave his friends and his school. It’s a very substantial undertaking.”[16]
[16] Transcript 25.7.2002, page 189
In cross-examination by the mother, Mr Papaleo said that he thought B seemed “pretty relaxed” with the father, and he suspected that, on condition that B’s parents were separated, he was happy with both. His behavioural problems are driven by his level of anxiety.
Mr Papaleo told the court, in answer to questions by Mr Arnold, that if there were a change of residence from the mother to the father, there should be a period of time when the child would be with the other parent and there should be limited if any contact for a period of two to four weeks. This would encourage a relationship with both parents. After that period of time, there could be telephone contact on a weekly basis.
In answer to questions from the bench, Mr Papaleo expressed the opinion that telephone contact can be extremely problematic. He went on to say that, if there were to be a change of residence, then for a period of a month the child should be with the father to settle in before contact with the mother would start.
In summary, Mr Papaleo said:
“Ultimately when I’m pushed into a corner and asked what do I think should happen, I inevitably find that I’m encouraging a decision be made on the basis of which parent is more likely to be able to encourage a positive relationship with the other parent.”[17]
[17] Transcript 25.7.2002, page 204
At the conclusion of the evidence, Mr Arnold submitted neither the credit of the father or Mrs V D M had been challenged, but there were admissions by the mother that she had been untruthful in the earlier proceedings in August 2000. It was the view of the child representative that the evidence of the father should be preferred where it clashed with the evidence of the mother.
Mr Arnold also commented on the failure of the mother’s husband, Mr R, to give evidence in the proceedings. He submitted that there were a number of issues where Mr R’s evidence would have assisted the court, and, in the absence of that evidence, the court could only draw an adverse inference. Where the evidence of the mother had been disputed concerning what Mr R would or would not say, the court should prefer the evidence of the father.
The child representative was aware that there had been a long status quo, but was recommending that, nevertheless, the child’s residence should be changed. The child should reside with the father and that the mother should have defined contact. There should be no contact, he submitted, for the first month after residence had been changed, to allow the child to settle into the father’s household.
The child representative was also of the view that, if there was a change of residence, then there should be an updated welfare report by Mr Papaleo after a period of six months.
The mother, in her submissions, told the court that the father was acrimonious and abusive of the child and herself. She reiterated her view that there should be no contact and that the father should need to obtain the leave of the court before commencing any further proceedings. She also sought some wide-ranging costs orders, dating back to the proceedings before the Family Court in August 2000.
The mother also sought an order that the father should indemnify her for her costs of any proceedings he sought to bring in the future.
I explained to her that I had no jurisdiction to make such an order.
The mother submitted that her costs of the proceedings in the Family Court in August 2000 should be met by the father, including the sum of $12,000.00 she borrowed from her own mother. This sum apparently remains unpaid. She explained that, at the time, she was not strong enough to seek an order for costs from the Family Court, due to the emotional abuse of her marriage and the continued litigation.
For the father, Mr Wood submitted that his client sought a residence order and a contact regime as suggested by Mr Papaleo. He departed from the child representative in that he did not seek a review of the decision after a period of six months. He submitted that the criticisms of the father by the mother are made by a person of little credit, whilst the credit of the father had not been impugned. He denied that his client had a propensity for interminable litigation. He submitted that, in the previous proceedings, when the truth was revealed, it was always the case that he had a good reason for bringing the proceedings.
Mr Wood submitted that the status quo should be changed because it was clear that the child suffers from psychological problems, and that the question should be asked “In whose household can that issue be addressed?”. He submitted that it could never be properly addressed in the mother’s household.
Mr Wood went on to submit that the Court could have no confidence in the mother’s motivation to arrange suitable counselling for the child. She had a history, he submitted, of being anything but an enthusiastic participant in a counselling process. She has no history of involvement in counselling and has previously rejected the proposal for the child to be counselled. He submitted that the Court could be confident that the child would receive the necessary counselling in the father’s household.
Counsel for the child representative submitted that there should be an order for the costs of the child representative to be met by the parties. Mr Arnold told the Court that it was the policy of Victoria Legal Aid to seek costs where the parties were not in receipt of a grant of legal aid.
Mr Wood told the Court that whilst his client was not in receipt of a grant of legal aid, his client had had to go into debt to fund the proceedings. Mrs R was acting for herself, but her husband, who was present in court, said that he and his wife had become bankrupt on 15th March 2002.
Principles to be considered in parenting proceedings
When a court exercising jurisdiction under the Family Law Act is considering making orders for residence or contact concerning a child, section 65E of the Act must be followed. This section lays down that the court “must regard the best interests of the child as the paramount consideration”. The High Court of Australia considered this matter in M and M (1988) 166 CLR 69, saying:
“The ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.”[18]
[18] At 75-6
Section 60B(2) sets out a number of principles which a court must take into consideration, except when the application of any of them would be contrary to the child’s best interests. These include children’s rights to know and be cared for by both their parents, and their right of contact, on a regular basis with their parents and with other people “significant to their care, welfare and development.” The principles also state that parents share duties and responsibilities concerning their children’s care, welfare and development, and they should agree about the future parenting of their children.
Section 68F(2) sets out a number of matters that a court must consider when determining what is in a child’s best interest. There are twelve of them in all, from subsections 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered, as I have done in this matter.
The matters in s. 68F(2) were considered by the Full Court of the Family Court in B and B: Family Law Reform Act 1997 (1997) FLC 92-755, where the court held:
“In proceedings under Part VII relating to parenting orders (which include relocation cases), the best interests of the particular child in that case remains the paramount consideration (s 65E). In that process the Court must consider the matters set out in s 68F to the extent that they are relevant in a particular case, the weight to be attached to any one consideration depending upon the circumstances of the individual case and is a discretionary exercise by the trial Judge”[19].
[19] At 84173-4
The best interests of the child
Section 68F(2)(a) requires the court to consider any wishes expressed by the child and any factors, such as the child’s maturity and level of understanding, that may be considered to be relevant to the weight the court should give to those expressed wishes. The child’s maturity, as well the child’s sex and background, are also to be considered under section 68F(2)(f).
One way of ascertaining the wishes of a child is by means of a Family Report, or a Welfare Report, as in this case. Clearly, the Report does not decide the case, nor should it, as the judicial officer hearing the case often has the advantage of considering evidence that may not have been available to the counsellor who prepares the report. At the same time, however, a Family Report or Welfare Report gives the court an independent view of the child’s wishes. The counsellor who prepares the report, being a psychologist or a trained social worker, will usually be able to give the court some independent evidence about the child’s level of maturity, as well. The author of this report, Vincent Papaleo, is a clinical psychologist.
In this case, the child’s stated position was that of hostility towards his father and rejection of him, although Mr Papaleo described his reaction to his father when he saw him as relaxed, spontaneous and comfortable. At the time of observation, the child was seven years and five months old. As to his level of maturity, his behaviour was observed to be quite regressed.
The wishes of the child were considered in some detail by the Full Court of the Family Court of Australia in Harrison v Woollard (1995) 18 Fam LR 788; FLC 92-598, where Fogarty and Kay JJ held that “The wishes of children are important and pR and realistic weight should be attached to any wishes expressed by children.”
In that same case, Baker J held:
“A child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial judge…The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in an individual case.”
The fact that this child was only seven and a half years of age at the time of assessment does not mean that his wishes are irrelevant. In Joannou (1985) FLC 91-642, the four children concerned were aged eight, seven, five and four, and the Full Court held that the evidence of the wishes of those children would not be irrelevant. It may or may not have been helpful, depending upon factors which could only become clear when a counsellor had seen the children and given a report.
The wishes of children were also considered by the Full Court in R and R: Children’s Wishes (2000) 25 Fam LR 712; FLC 93-000, where the Full Court said that, whilst pR weight should be given to children’s wishes, this did not mean that those wishes should not be departed from. Appropriate and careful consideration must be given to those wishes. The Full Court considered this issue more recently in R and R [Children’s Wishes] (2002) 29 Fam LR 230, saying “the principle is clear that a Court must take the children’s wishes into account but is not bound by them.”
The Family Law Act itself imposes a requirement on the Court to consider any wishes expressed by a child in deciding whether to make a particular parenting order in relation to a child (s.68G).
In this case, the child expresses negative views about the father and about the father’s current wife. I consider that they are relevant and I take them into account. I am satisfied, however, that because of the child’s age, his comparative immaturity, the psychological problems identified by Vincent Papaleo, and the contradiction between the child’s expressed wishes and the observations of his behaviour when in the company of his father and stepmother, that I should give these wishes less weight than usual.
I am mindful of the need to consider the child’s happiness and whether he would be so resentful if he were placed in his father’s care that it would cause irreparable damage to his relationship with his father (Radford and Alpe (No. 2) (1985 FLC 91-622; K v Z (1997) 22 Fam LR 382; FLC 92-783). However, it appears to me from Mr Papaleo’s observations that the child is not happy at the moment, anyway. I am not persuaded that he would so resent his father that the relationship would not work if there was a change of residence.
The nature of the relationship of the child with each parent and with other persons is also relevant, and is covered by s.68F(2)(b).
Mr Papaleo has formed the view that the child has a good relationship with each parent when they are apart. He also appears to have a good relationship with his father’s current wife, A V D M, and his mother’s current husband, L R. I had the opportunity of observing Mrs V D M in the witness box, and she appeared to be a kind and sensible woman.
The likely effect of a change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents is a significant issue. If B were to go to live with his father, he would be very unhappy at leaving his mother, and he would, according to Mr Papaleo, need time to settle into his father’s family. On the other hand, if B remains living with his mother, she seeks an order that there should be no contact with his father. This would have a deleterious effect on the child, and is strongly opposed by the child representative. It is not recommended by Mr Papaleo, either.
There are practical difficulty or expense in the child having contact with either parent (which is a matter the Court is required to consider by s.68F(2)(d). The parents live in Victoria and South Australia, so that there is a need for air travel for contact to occur. This issue has been addressed before, and I propose to make similar orders.
I am satisfied that each parent has the capacity to provide for the physical needs of the child, but s.68F(2)(e) requires the Court to consider the child’s emotional and intellectual needs. The parents have differing views about the type of school this boy should attend. The mother’s proposal would cut the child off from contact with his father, which would not assist his emotional needs.
Section 68F(2)(f) requires the court to consider the child’s maturity sex and background and any other characteristics of the child that the court thinks are relevant.
This child was aged seven years and five months at the time he was assessed for the Welfare Report. He is a little boy, but there is no judicial preference that male children should reside with their fathers (Mulligan (1976) 1 Fam LR 11,599; FLC 90-080). B does not have an Aboriginal or Torres Strait Islander background.
There is no evidence of any likely physical harm[20] to this boy in either household, with the exception of the corporal punishment, which the father deplores. The parents have different attitudes to the child and to the responsibilities of parenthood[21], as the mother’s wish to terminate the child’s contact with the father can clearly be contrasted with the father’s view that the child needs both parents.
[20] s68F(2)(g)
[21] s68F(2)(h)
There is no family violence order in force between the parents, which is a matter I am required to consider under s.68F(2)j). There is evidence of some violence and abuse in the mother’s background, as there have been complaints that at least one of the mother’s male friends had been violent to her and the child.
Section 68F(2)(k) makes it clear that it is always preferable to make an order that would be the least likely to lead to further litigation between the parties. Counsel for the child representative submits that there should be a provision in the Orders to cover obtaining an updated Welfare Report after six months. Counsel for the father opposed that proposal, pointing to the need for the parties to end their litigation. There are financial aspects, which would indicate a need to bring the litigation to an end.
It has been held that it is not in the interests of children that there should be repeated applications to vary residence orders when there are no new circumstances to be brought before the Court (see Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725). Nygh J held in McEnearney (1980) FLC 90-866 that “The principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.”[22]
[22] at page 75,499
In this case, the evidence shows that there has been a significant change in circumstances since the consent orders were made in the Family Court on 14th August 2000. Each party seeks radically different orders from those that they consented to. The father now seeks that the child should reside with him; the mother now seeks that the father should have no contact with the child. I am satisfied that there are reasonable grounds to justify the reopening of the question of residence.
I am equally satisfied that there should be an end to litigation between the parties about their son. There has been a plethora of litigation between them during this child’s lifetime. I propose to make final orders in this matter, and I do not consider it necessary to order a further Welfare Report in six months’ time.
There are some other relevant facts and circumstances (see s.68F(2)(l). The first one is the question of the child’s religious beliefs. The father and his current wife are not particularly religious, but it appears that the child and his mother and stepfather do possess quite strong beliefs. The child has a wish to take his copy of the Bible with him on contact visits, which his father should respect (and there is no evidence that he does not).
More significantly, perhaps, the mother and Mr R’s beliefs have influenced their choice of school for B. They have enrolled him at the Sunrise Christian School. The father does not agree with their choice, mainly due to the school’s reliance on corporal punishment as a method of discipline.
The other circumstance of relevance here is the degree of anxiety that the child appears to possess. Mr Papaleo has expressed concern about this child’s psychological state and his need for counselling on a long-term basis. The father and Mrs A V D M appear to have accepted this diagnosis, but the mother does not show the same enthusiasm for counselling for this child.
Conclusions
There is a proposal before the Court to change the child’s residence from his mother to his father. He has lived with his mother since he was a baby, although there were some lengthy gaps when he was with his father. The issue of changing the status quo is one which the Court should consider seriously before making any decision. This does not mean that the Court should not change a long-standing status quo; it is a factor to be considered.
In the decision of the Full Court in Raby (1976) 2 Fam LR 11,348; FLC 90-104, it was held:
“Several matters may be relevant – the age of the child, the length of the status quo, its quality, and in particular, the nature of the child-adult relationships developed within it. If the status quo is predictably more detrimental to the child’s welfare than proposed alternatives, a change may not only be desirable, it may be necessary.”
In this case, the child has lived with the mother for nigh on eight years, so it is a lengthy status quo. There have been previous proceedings between the parties, all initiated by the father, where residence has been in issue, which have been settled. The evidence shows an anxious child who has serious psychological problems.
It is significant that the orders sought by the mother are that the child should have no contact with the father. The father would have no role in the child’s life at all, apart from being informed if the child contracted a terminal illness. In the decision in Re David (1997) 22 Fam LR 489; FLC 92-776, the mother of the subject children opposed any contact although the grounds were conceded to have been ill founded. The Full Court concluded that on the facts a change of residence was the only way to preserve contact with the other parent.
In the case before me, the mother wishes to bring contact between father and child to an end. I am not satisfied that this is in the best interest of the child. If the child remains living with the mother and contact is ordered to continue, it appears to me that the mother would not embrace that concept warmly, even though she has told the Court that she would comply.
On the other hand, if the child goes to reside with the father and his wife, I am satisfied that the father will encourage contact between B and his mother. He has told the Court of the belief that contact is to be encouraged, and he has had the experience of being a contact parent for a number of years.
As I am satisfied that if the child remains living with the mother there will be no contact (or almost no contact) with the father, the child’s best interests appear to me to lie with a change of residence. I am also doubtful that the mother would comply with any order for ongoing counselling for the child.
I have had regard to the concerns expressed for this child’s psychological health by Mr Papaleo, who is a clinical psychologist. It appears to me that the father and Mrs V D M would be more likely to ensure that this child receives the assistance that he needs.
I propose to order that the child should reside with the father, commencing after the end of the current school term. I also propose to order that there be no contact between the child and the mother for a period of four weeks, as recommended by Mr Papaleo and submitted by Counsel for the child representative. The purpose of this is to allow time for the child to settle in to the father’s family environment, as has been recommended.
I am not persuaded that I should make any arrangement for an updated Welfare Report. This litigation needs to be brought to finality. I am equally persuaded that the mother’s proposed costs orders against the father, and the virtual finding that the father should be treated as a vexatious litigant are of no merit. If the mother seeks costs against the father for matters that took place in the Family Court nearly three years ago, then I do not see that this court should entertain the application.
It is for the above reasons that I make the orders set out in the attached schedule.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 17 March 2003
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