W and A
[2006] FMCAfam 405
•8 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & A | [2006] FMCAfam 405 |
| FAMILY LAW – Child aged 11 years – competing application as to with whom of his parents he will live – mother live in Mount Isa – father lives in Darwin – final orders made in April 2004 after two day hearing awarding “residence” of child in favour of mother – father weeks to re-open the issue of where child will live in future – application of rule in Rice & Asplund – family report favours change of arrangements – consideration of best interests – primary and additional considerations. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 65 DAC, 65 DAE |
| Rice & Asplund (1979) FLC 90-725 D & Y (1995) FLC 92-581 A & W [2004] FMCAfam 176 |
| Applicant: | D E W |
| Respondent: | M A A |
| File number: | BRM682 of 2003 |
| Judgment of: | Brown FM |
| Hearing date: | 26 July 2006 |
| Delivered at: | Darwin |
| Delivered on: | 8 August 2006 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
That all previous orders be discharged.
That the child R J W born 7 July 1995 live with the father.
That the mother and father have equal shared parental responsibility for the said child.
That each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development of the child on a day to day basis during periods when the child is in his or her care or is spending time with either of them.
That the child spend time with the mother as follows:
(a)For the first half of the Christmas end of year school holiday period in 2006/2007 and each alternate year thereafter;
(b)For the whole of the end of first term Northern Territory school holiday in 2007 and each year thereafter;
(c)For the first half of the mid year Northern Territory school holiday in 2007 and each year thereafter;
(d)For the whole of the end of third term Northern Territory school holiday in 2007 and each alternate year thereafter;
(e)At any other times the parties may agree from time to time.
That the mother communicate with the child by telephone as follows:
(a)By telephone between the hours of 6.00pm and 7.00pm Australian Central Time or Australian Central Summertime as is appropriate with the father to ensure that the child telephones the mother on a telephone number to be provided by her to the father at this time.
That Order 2 hereof commence on 7 October 2006.
That all applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
BRM682 of 2003
| D E W |
Applicant
And
| M A A |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern final arrangements for the parenting of R J W born 7 July 1995. The parties to the proceedings are R’s parents, his father D E W and his mother M A A.
Sadly, the parties have been in dispute over arrangements for R’s care for many years and this is yet one more round of litigation between them. The evidence is clear that both the father and mother love R very much indeed and R himself has a close relationship with each of his parents. However, there is evidence to indicate that R feels burdened by the high level of conflict between his father and mother and his perception that he must in some way choose between them and is so responsible for their personal happiness.
It is clear that R is well aware of the court case between his parents about him. He knows that each of his parents believe he wants to live predominantly with either him (Mr W) or her (Ms A). Accordingly, he is worried about potentially upsetting either his father or his mother. That is a heavy burden for an 11 year old to carry.
Mr W lives in Darwin. Ms A lives in Mount Isa. Because of the distance between these two locations, there is no easy solution to the case, whereby R could spend either equal or substantial periods of time with both his parents. Inevitably, whatever the outcome, one of the parties will feel hard done by because he or she will feel relegated to a subsidiary role in R’s life as he or she will only be able to see R during school holidays.
Arrangements for R’s care have not been stable since the parties separated in 1997. There have been proceedings concerning R before the Family Court in Brisbane between 1999 and 2001; proceedings before the Federal Magistrates Court in Brisbane between February 2003 and April 2004; and an appeal to the Full Court in October of 2004. In addition, there has been a panoply of other interventions in State based courts in Queensland and Victoria, involving domestic violence orders; recovery orders; ex parte residence orders; to name but some. Now there is this round of proceedings, which the husband commenced on 3 October 2005.
The complexity of the litigation history between the parties is indicative of a high level of conflict and mistrust between them. At the present time, the parties find it very difficult to discuss issues to do with R between them and so agree on a common course of parenting. It seems likely that these difficulties have become entrenched. In the past, the parties have each been legally represented. This is an option that is no longer open to them and the parties have represented themselves before me. This has added an extra level of complexity to the case, as neither finds it easy to write legal documents or argue some of the complex issues this case raises.
Between the date of the parties’ separation (1997) and until the conclusion of the first major round of proceedings (2001), R lived with the mother. It seems to be the case that the father was critical of the mother’s care of R during this period, particularly that her living arrangements were not stable.
In March of 2001, as a result of a consent order made between the parties, R went to live with the father, who at that time had accommodation in Coopers Plains, a suburb of Brisbane. In 2002, R came to live in Darwin, where the father has relatives. At the time, he was driving trucks, long-haul, between Brisbane and Darwin. Later the father himself moved to live in Darwin.
During this period, the mother was critical of the father’s care of R, particularly that he was not supporting R having contact with her; had acted unilaterally in moving R to Darwin; and was leaving R’s care to others, whilst he was at work driving interstate. As a result, she commenced further proceedings in the Federal Magistrates Court at Brisbane, which concluded in April of 2004, after a two day hearing before Federal Magistrate Jarrett.
As a result of Federal Magistrate Jarrett’s orders, R has lived with the mother and had contact with the father, in Darwin, during school holidays. The father unsuccessfully appealed the Federal Magistrate’s decision to the Full Court of the Family Court.
In September of 2005, R was visiting his father in Darwin for the end of third term school holidays. It is the father’s position that R told him he no longer wished to live with the mother and would prefer to live in Darwin. As a result, the father commenced this fresh round of proceedings. The mother cross-applied for a recovery order in respect of Reggie on the basis of the orders made on 21 April 2004. Ultimately the parties were able to agree that R should live with his mother, until the parties’ competing final applications could be determined.
The father is again critical of how the mother has parented R since April of 2004, particularly that she has moved from Pittsworth, which is near Toowoomba in Queensland to Mount Isa. As a result, since April of 2004, R has attended three primary schools.
It is the mother’s position that R is well settled in her care in Mount Isa. As such, it is her view that yet another change, at this stage, would be highly unsettling for R and could not be considered to be in his best interests. Ms A concedes that R has expressed a desire to live in Darwin but she believes that he has recently resiled from this view. In her view, when R is in Mount Isa, he wants to live in Mount Isa and when R is in Darwin, he wants to live in Darwin.
As frequently happens when parties to proceedings are unrepresented and where there is an issue regarding which outcome the child at the centre of the proceedings would prefer, the court ordered an independent family report to be prepared. In general terms, this report was to examine R’s relationship with each of his parents and any other relevant persons; what R view were, if any; and overall was directed to explore what outcome was likely to be in R’s best interests. The report was prepared by Stephen Ralph, an experienced psychologist and court mediator.
In his report dated 10 May 2006, Mr Ralph recommended that R should live with his father in Darwin in future and have regular school holiday contact with the mother. R did not express a definite view to Mr Ralph about where he would prefer to live other than saying he was “thinking mostly” of living with his father. R also said to Mr Ralph that he found this issue to be “a difficult and confusing” one, which the court should decide. My impression is that R wishes to be impartial, so far as his parents are concerned. To use the vernacular, he is “sitting on the fence”.
In Mr Ralph’s opinion, there were a number of factors, at this stage, which favoured the father’s proposal. Firstly, R was experiencing conflict with his step-father, A S, the mother’s partner and this conflict was likely to become more serious as R became an adolescent and, as such, may have seriously detrimental consequences for his future development. Secondly, R wished to consolidate his existing relationship with a number of members of his paternal family, chiefly his two older siblings, who live in Darwin. Thirdly, R himself felt there were more recreational opportunities in Darwin than in Mount Isa.
In a difficult and finely balanced case, Mr Ralph believed that these matters tended to support the father’s position and were the major ones which influenced his recommendations. In reaching this view, Mr Ralph did not question the importance of the relationship between R and his mother. He acknowledged that a further change of circumstances would be difficult for the mother to cope with.
Mr Ralph is not the first expert, who has provided reports to the court. Prior to the 2004 proceedings, Ms Derrington, another psychologist, prepared two family reports, which were influential in forming Federal Magistrate Jarrett’s judgment in April of 2004. At that time, Ms Derrington had the opportunity to observe R interacting with both his father and with his mother and Mr S. At that stage, it was Ms Derrington’s assessment that R’s main attachment is “likely to be with his mother”. It was also Ms Derrington’s assessment, at that stage, that R loved both of his parents and indicated that he wanted to be loyal to them both.
Ms A has some criticisms of Mr Ralph’s report. In particular, Mr Ralph interviewed R during one of R’s holiday visits to Darwin. He was only able to interview her and Mr S by telephone. More importantly, he was not able to come to Mount Isa to interview R and see him with his mother during a period of time when R was settled into her care in Mount Isa. Accordingly, Ms A believes that the court should exercise a considerable degree of caution about Mr Ralph’s recommendations.
Needless to say, Mr W relies on Mr Ralph’s recommendations and asserts that he has only brought these proceedings in order to achieve R’s best interests, particularly his apparent desire to live with his father and older half siblings in Darwin.
There is a long standing rule of law that courts should not readily re-open a case involving arrangements for the care of a child, when final parenting orders have recently been made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of what lawyers describe as the rule in Rice & Asplund.[1]
[1] Rice & Asplund (1979) FLC 90-725
The principle that underlies the rule is that, generally speaking, it is not in the interest of children to have repeated applications before the court concerning arrangements for their care. It is desirable that there be an end to litigation concerning children. The thrust of the rule is to encourage parties to have a sense of finality about orders, once they have been made, and place a barrier in the way of repeated and unnecessary application to vary orders recently made.
It is obviously in the best interests of a child for there to be an end to the litigation concerning him or her and certainly for unnecessary litigation to be avoided. The rule in Rice & Asplund is an application of the paramountcy principle, as set out in s.60CA of the Family Law Act 1975.
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances to justify the re-opening of the issue of where a child should live, which has been earlier determined by concluding proceedings, as a discrete or preliminary issue or at the same time as the hearing of the parties’ substantive applications.[2]
[2] See D & Y (1995) FLC 92-581 at 81,764
Accordingly, the dilemma presented by this case is readily apparent. Will R’s interests be best served by a continuation of the arrangements in place since April of 2004, a period of just over two years? On the other hand, are the issues raised by the father and Mr Ralph of such moment that the court should be persuaded to look again at arrangements for R’s parenting, notwithstanding the multiplicity of proceedings there have been in the past?
These proceedings are directed to resolving this complex dispute between the parties. When parents who no longer live together ask the court to determine where and with whom their child should live, it is the best interests of the child concerned which are paramount. The court must decide which of the parties’ competing proposals are most likely to advance the best interests of the child concerned.
The documents relied upon
The father relies on the following documents:
i)His application filed 3 October 2005;
ii)An affidavit of himself filed 3 October 2005;
iii)The family report.
The mother relies on the following documents:
i)Her response filed 14 October 2005;
ii)An affidavit of herself filed 5 June 2006.
Both parties’ affidavits are brief and hand written. Neither called any other witnesses in support of their respective positions. In particular, Mr S did not give evidence before me.
The hearing of the matter took place on 26 July 2006 in Darwin. The mother was not able to come to Darwin for the hearing. Arrangements were made for her to attend court via a videolink from the courthouse in Mount Isa. The videolink was satisfactory but I appreciate it was alienating and trying for the mother to attend court in this way, particularly given the significance of these proceedings.
Neither party was particularly adept in cross-examination. They were however mutually respectful and polite towards each other, something for which I was grateful. At the outset of the proceedings, I allowed both parties, on oath, to set out in their own words what their respective cases were about. Thereafter, I took a leading role in asking each of them questions.
Both indicated to me they wished to ask Mr Ralph some questions about his report and he attended court for this purpose. Again, I asked Mr Ralph a number of questions. Inevitably, given the limited extent of the evidence before me from the parties themselves, Mr Ralph’s report assumed a significant level of importance in the case.
Neither party was a particularly good historian regarding their long history of litigation with one another and the specific dates or years in which events took place. Given the litigation occupies many years, this is not surprising. I have read Federal Magistrate Jarrett’s reasons for judgment published on 20 April 2004, and the reasons for judgment of Justice Warnick in the Full Court published on 2 November 2004. These documents provide much of the background, which brings the parties to the present point.
The evidence
This is not a case which turns on credit. I found both parties to be genuine and honest witnesses. It was obvious to me that both love R very much indeed and each believes that the position, which he or she has adopted in these proceedings, is the one best suited to achieving his interests.
The parties are however quite different temperamentally. The father is forthright and determined. He is also somewhat dogmatic or liable to see things only in black and white terms. This is particularly so in regards to R’s views. If R has told him something, which he regards as favourable to his case, Mr W is unlikely to let it go or consider that R may have had some other motive for telling him it.
I also suspect that Mr W is still upset about a number of the previous proceedings, particularly those involving ex parte orders made in the mother’s favour, when he was absent. These matters, some of which happened many years ago now, cause him to regard the mother as untrustworthy and unreliable. Taken all together, these factors are likely to affect Mr W’s objectivity, particularly where issues to do with R and the mother are concerned. He continues to regard Ms A through a prism of hostility.
Both parties have been involved in the interstate trucking business over many years. Mr S too has been employed in the transport business. As a consequence, both Mr W and Ms A have spent substantial periods of time away from fixed home bases and both have been critical of the other in terms of the ramifications of this for the stability of R’s care. In this regard, both parties display something of a double standard and a lack of objectivity.
In particular, I consider it likely that Ms A is not greatly insightful into the potential pitfalls which may occur in future in the relationship between R and Mr S. She acknowledged that there are presently some difficulties between them relating to discipline issues and the doing of chores. She also believes these difficulties are exacerbated by the father’s obvious hostility towards to Mr S, something of which R himself is well aware. However, at the same time, Ms A was at pains to minimise these difficulties. This is understandable and Ms A is obviously loyal to Mr S. However, I am concerned that Ms A cannot be regarded as entirely reliable about this central issue.
Accordingly, although I accept that both parties are decent, hard working citizens, I am concerned that neither of them can be regarded as a dispassionate witness. For obvious reasons, both Mr W and Ms A have an axe to grind. In these circumstances and in the absence of other witnesses, the family report and Mr Ralph’s evidence assumes central importance in this case.
Mr Ralph has been a psychologist for nearly 30 years. Initially, he worked in the field of child protection. For the past 20 years, he has worked with children and their parents in the family law system. In that time, he has interviewed countless children and written literally hundreds of family reports.
Mr Ralph conceded that there was a significant limitation to his report in the sense that he had not been able to conduct in person interviews with Ms A and Mr S and had not been able to observe them interacting with R. That is a significant limitation, which Ms A understandably stressed in her evidence and submissions. However, I think it would be imprudent of the court to dismiss Mr Ralph’s opinion merely because of this omission. As Mr Ralph himself said, it remains a significant possibility that such interviews and observations would have made little difference to his ultimate view in this case. It would not be appropriate for the court to disregard Mr Ralph’s evidence just because he was unable to see Ms A and Mr S with R.
I found Mr Ralph’s report to be considered and insightful. Mr Ralph’s expertise cannot be questioned. I see no reason to discount his views about the pressures with which R currently has to deal. I also think it more likely than not that Mr Ralph has been able to identify the matters about which R has been thinking in the context of these current proceedings.
In this context, Mr Ralph described R as a “bright, thoughtful young boy who spoke openly about his family situation.”[3] Given these observations, which I accept, it seems to me likely that Mr Ralph has a more objective and balanced view of how R is feeling and thinking at the present time than either of the parties. Accordingly, notwithstanding the limitations to the report, I consider it to be a highly influential piece of evidence in this case.
[3] See Family Report at paragraph 36
Background
The father was born on 19 May 1952 in Alice Springs. He was previously involved in a relationship with D A R. The father and Ms R have two children, T J W who is now 22 and C D W who is now 21.
The mother was born on 2 September 1977 in Adelaide. R is her only child. He was born on 7 July 1995.
The parties began to live together in late 1994. They lived in the Brisbane area. Their relationship was punctuated by a number of separations. The father was working as a truck driver and was often away from home. The parties finally separated in November of 1997.
When the parties separated, the mother left the former family home with Reggie and travelled interstate, first to South Australia and then to Victoria. In late 1999, an ex parte order was made by the Castlemaine Magistrates Court granting the residence of R to the mother.
Around this time, the father commenced proceedings in the Family Court at Brisbane seeking a residence order in respect of R in his favour. In May of 1999, on an interim basis, Justice Bell ordered that R live with the mother, on condition that she returned with him to South East Queensland.
From early 2001, R lived primarily with the father in Coopers Plains in Brisbane. By this time the mother had moved to Laidley and had re-partnered with Mr S. At that time, Mr S was employed as a truck driver.
On 29 March 2001, orders were made, with the consent of the parties, in the Family Court at Brisbane, pursuant to which R lived with the father and had contact with the mother for half of each school holiday. The orders also provided that the mother might request further contact to R when she was “in close proximity to the father’s residence”.
During the period following this order, the mother and Mr S were frequently on the road together in connection with Mr S’s employment. There is some dispute between the parties as to how often the mother was able to see R. It seems likely that she was able to see him every two or three weeks between truck runs. The mother complains contact was problematic. The father asserts that he made R available to the mother at a truck depot whenever the mother requested.
For at least part of 2001, T was living with the father and R at Coopers Plains. It is the father’s evidence that he has never really felt comfortable living in Queensland and regards the Northern Territory as his home. It seems that, after the consent orders of March 2001 were made, he ceased driving in the Brisbane area and recommenced interstate driving, particularly the run between Brisbane and Darwin.
In April 2002, the mother and Mr S left South East Queensland and moved to Central Queensland, initially moving to Blackwater, then Mount Isa and finally Cloncurry. During these times, Mr S was working in the mining industry. In about September of 2003, the mother and Mr S moved to Pittsworth, which is near Toowoomba.
The father is very critical of what he perceives to be a lack of stability in the mother’s living arrangements. It is his position that, in these circumstances, it was difficult for him to remain in contact with Ms A and make arrangements with her regarding R. However, in late April of 2002, it seems clear that the father took R to Darwin with him in his truck. The father continued to be based in Brisbane and to be engaged in working the interstate truck run between there and Darwin. This was financially remunerative for him and he needed the funds to finance his relocation to Darwin. However, R continued to live predominantly in Darwin.
This issue was of great concern to the mother for a number of reasons. Firstly, she was concerned that R had been relocated to Darwin without any consultation with her. This seems undoubtedly to be the case. Secondly, it was difficult for her to have regular contact with R. Thirdly and finally, she was concerned that R was being cared for predominantly by people other than the father.
In July of 2003, R was in the mother’s care during the July school holiday. As a result of her concerns regarding R’s care, she elected not to return him to the father and commenced proceedings in the Family Court at Brisbane on 29 July 2003, seeking a residence order in her favour. This precipitated an application for a recovery order in respect of R from the father.
Ultimately, on 31 July 2003, Justice O’Reilly ordered that R be returned to the father and that a family report be prepared. Later, in October of 2003, the father commenced contravention proceedings against the mother in respect of her failure to return R to him after the mid year holiday in 2003.
The family report ordered by Justice O’Reilly was prepared by Ms Derrington and was released to the parties in early December 2003. Ms Derrington described this report as being “incomplete” because she had not had the opportunity to interview either Ms A or Mr S face to face and obviously had not seen them directly interacting with R. Nonetheless, it was Ms Derrington’s view that R’s main attachment was likely to be with his mother, because she had been his primary carer until he was five and a half years old. Ms Derrington was also critical of Mr W for, as she perceived it, placing R in pseudo-foster care with his former partner, Ms R, C and T, whilst he was driving interstate.
To Ms Derrington, Mr S indicated that he knew R “reasonably well” as he had lived with him from about April 2000 until early 2001. At that time, it seems his own son, G, was living with him. Ms Derrington made the following comments about her impressions of the relationship between R and Mr S:
“Asked about Mr A S, R said, “he’s all right”. “When I was seven, he always used to get angry. G teases me and then his father gets angry with me.” R, in reporting about his experiences at his mother’s place, indicated that there was nothing that unduly worried him about his experiences there. He also indicated trust in his mother in regard to sorting out any situations that may arise with G and Mr S. In regard to his mother’s relationship with Mr S, R said that his mother “only gets angry with A if he blames me for things”.”[4]
[4] See Ms Derrington’s family report dated 8 December 2003 at paragraph 47
The matter came before Judicial Registrar Smith on 15 December 2003, on which occasion it was ordered that Ms Derrington complete her family report by observing R with both Ms A and Mr S. These observations took place in Brisbane on 19 January 2004. He was observed to engage happily with his mother and include Mr S and G in his play.
It seems that Ms Derrington did not consider that R had a particularly close relationship with his older half siblings, C and T. She was also concerned that R was distressed at the prospect of being placed in Ms R’s care, whilst his father was at work interstate.
It was her view that, as a result of the father’s decision to move R to Darwin, whilst he continued to spend lengthy periods of time on the road between Brisbane and Darwin, a situation had arisen whereby R had been deprived of contact with both his parents. As a consequence, Ms Derrington provided the following evaluation, in her report dated 23 January 2004:
“R loves both his parents, and indicated that he wants to be loyal to both. He may be suffering in his social development as a result of the dispute about residence. R clearly indicated that he is confused and troubled about his future. Much of what R expressed, in regard to his residence, indicated the pressures he feels in regard to his situation. His responses were at times erratic, and he appeared to have some anxiety.
There was no evidence from the information provided from interviews, to support the views of Mr W and Ms R that Ms A is not able to provide a stable family life for R. The writer saw a clear indication that a cooperative and loving family environment is available to R if he resided with his mother.
R has been deprived of substantial contact with either parent for a substantial period of time. Mr W continues to rely on Ms R to care for R on a daily basis. In the writer’s opinion, R is likely to thrive if he has the opportunity to reside with his mother and her family, and have contact with his father whenever this can be arranged.”[5]
[5] See Ms Derrington’s family report dated 23 January 2004 at paragraphs 21-23
I, of course, have not had the opportunity to hear direct evidence from Ms Derrington or see her being cross-examined. It is however clear that Ms Derrington’s two reports were highly influential in assisting Federal Magistrate Jarrett to his orders of 20 April 2004. These orders were as follows:
“(1) The previous orders be discharged.
(2)That the child, R J W born 7 June 1995(sic) live with the mother.
(3)That the mother and father each have responsibility for the sole responsibility for decisions about the day-to-day care welfare and development of the child when he is in their respective care
(4)That the mother and father have joint responsibility for the long-term care, welfare and development of R;
(5) That the father have contact with R as follows:
(a)for one half of each school holidays including the Christmas and Easter holidays, the father to have the first half of each holiday period in 2004 and alternatively thereafter;
(b)for at least four hours on the father's birthday, R's birthday, Father's Day and Christmas Day;
(c)upon the father giving prior notice to the mother that he is in close proximity to the mother's residence, contact for a period of no less than four hours or for such other time as may be agreed between the parties;
(d)telephone contact between the hours of 6 p.m. and 7 p.m. on Wednesday of each week.
(6)The father, within the next seven days cause the personal effects and belonging of R to be sent to the mother.”
I provided detail of Ms Derrington’s evidence by way of background only, appreciating that it has not been tested in the current proceedings before me. Obviously it is somewhat at odds with Mr Ralph’s report, written about two and a half years later, other than that, both Ms Derrington and Mr Ralph view R as a troubled child, who is confused about his future and by what appears to be a conflict of loyalties between his parents.
In my view, the evidence demonstrates some of the inherent difficulties in family reports. Inevitably they must always be based on a “snap shot” of a family, which is frozen in time. As a result, they may not be able to reflect the complicated unwinding over time of a particular family or inter-personal dynamic, which may take some time to play out. As such reports are based on limited times for observation and may, as in this case, be presented with all sorts of pragmatic difficulties, the reports may lack subtlety. These comments are not intended as criticisms. Family reports are an invaluable tool in resolving parenting disputes. However, at the same time, it must be recognised that family dynamics are invariably complex and multi-faceted.
At the time of Ms Derrington’s reports, it was unclear about how R’s relationship with Mr S and G would turn out or indeed what his feelings about T and C would ultimately be. On any view, up to that stage, arrangements for R’s care, whilst both with his father and mother, had not been particularly stable. It is therefore not surprising that R’s attachments and feelings would be somewhat changeable and unpredictable. I concede that appears to be the case up to the present time.
One of the central issues in this case is whether the change, if any, in R’s relationship with Mr S and his purported desire to be more involved with paternal aspects of his family are of such moment to justify the re-opening, yet again, of the issue of where R is to live. As Evatt CJ observed in Rice and Asplund change is a necessary corollary of human affairs. Families are necessarily dynamic and human relationships are malleable.
The father’s position
As I have already observed, the father is a forthright and determined person, who is not deterred by the failure of his case in April of 2004, from bringing these fresh proceedings. It also seems to me that he has attempted to address Ms Derrington’s previous criticisms of him, whilst at the same time relaunching his own criticisms of the mother and Mr S.
At the present time Mr W is living at 55 S Road, H S in the rural outskirts of Darwin. The property is owned by his sister and brother-in-law, D and D G. The property consists of a five acre block on which is constructed a five bedroom house and a separate unit. Mr W lives in the unit and Mr and Mrs G and their two children, C and C, live in the main house.
Mr G works in the mining industry on Groote Eylandt on a fly in/ fly out basis from Darwin. Mrs G is engaged in home duties. C and C are a little older than R, being 16 and 12 years of age respectively. It is the father’s position that R enjoys a close relationship with his two cousins.
At the present time neither T nor C are living with Mr W. They live in nearby Yarrawonga. T has recently had a child. T and C’s mother, Mrs R, is currently living in Far North Queensland.
Mr W is currently employed by D C S. It is his evidence, which I accept, that he no longer works as a long-haul truck driver and largely does deliveries in the Darwin area. He does however continue to own his own prime mover and has done one or two long trips in the past few years. It is his position that his usual working hours are between 7.00am and 5.00pm from Monday to Friday and he would be available to provide substantial care for R augmented by Mrs G, whom he described as his and R’s “back up” family.
The father continues to be highly critical of the mother and Mr S in the following areas:
·Since R passed into the mother’s care, she has moved three times, which has resulted in three changes of school for R;
·The mother’s accommodation has been unsuitable for R. At times he has lived in a demountable hut, whilst his mother and Mr S have lived in a caravan;
·Mr S has been verbally abusive to R;
·Mr S had upset R to such a degree that R was feeling “powerless”;
·The mother had not been supportive of R spending time and communicating with him, particularly in regards to the order for telephone contact made in April of 2004.
The mother’s position
The mother, R and Mr S moved to Mount Isa in September 2004 because Mr S was no longer able to physically drive trucks because of a blood clot problem. In Mount Isa, he was able to get a position managing a transport company. I accept he is currently doing well in this job.
The mother is currently working as a casual cleaner at Mount Isa M. She works five days a week from Monday to Friday between 7.30am and 3.00pm. The hours fit in with R’s needs. Initially the mother and Mr S lived in a caravan park in Mount Isa but since August of 2005, they have been renting a unit in the town. R changed school in Mount Isa because he had “problems” with a teacher at the first school he attended.
R is doing well at school and I accept he has made friends in his area. R has been doing judo and softball. In September, he is scheduled to go on a Year 6 camp to Magnetic Island. The mother is saving towards the cost of this. I accept that Ms A regularly attends school functions involving R.
It is the mother’s evidence that she and Mr S plan to stay in Mount Isa for the foreseeable future. Mr S enjoys his job and does not wish to change it. The couple hope in time to purchase a house in Mount Isa. I accept the mother’s evidence in this regard, which answers many of the father’s criticisms that her lifestyle is an unstable and itinerant one.
The mother denies that she interferes with R’s telephone conversations with his father. She and Mr S do not have a landline telephone and rely on mobile phones. I accept the father’s evidence that there have been some considerable difficulties with the mobiles, which are not always turned on. I also accept that R is likely to have some difficulty in getting access to the mobile phones, particularly Mr S’s.
The mother has considerable criticisms of Mr W in respect of his track record so far as the payment of child support is concerned. She concedes that she was not able to pay child support, when R was in the care of his father. In April of 2005, she applied for a review of the relevant child support assessment, on the basis it did not properly reflect Mr W’s income, earning capacity, property and financial resources. Her application was unsuccessful, as the Senior Case Officer concerned accepted that Mr W was working as a freight sub-contractor and received an income of approximately $15,000.00 over a period of the preceding 12 months. Accordingly, Mr W has been assessed to pay the statutory minimum amount of child support of $260.00 per annum.
Mr W told the Senior Case Officer concerned that “he had been relying on assistance from family and friends to survive.” Ms A points to this comment in support of her submission that Mr W is either being devious about his true financial position or is not in a position to properly support R financially in the event of a change of his living arrangements. It is also her view that the father’s current position is strongly influenced by child support considerations rather than R’s best interests.
The mother acknowledges that R enjoys the holidays he spends in Darwin, particularly the time he spends motor bike riding and with his cousin, C. She notes however that R is not particularly forthcoming to her about his interaction with other of his relatives in Darwin. She proposes that R spend longer holiday periods with his father in future. However, she also points to the fact that R is invariably returned to her late, as further evidence of the father’s poor attitude towards parenting.
The mother continues to be critical of the father’s work practices and believes that inevitably, in the event of a change of his place of residence, R will be cared for long periods of time by people other than the father. She describes herself as a “full time carer for R [who does] not need anyone else to care for him.” Ms A concedes that she and R do not have any relatives in Mount Isa and she herself is estranged from her family in South Australia but asserts that this lack of relatives is not particularly concerning to R as he has many other friends in Mount Isa.
Overall, it is the mother’s position that Mr W continues to put his own emotional needs, particularly in respect to his desire to have all his children living close to him, over R’s emotional needs. She is concerned that the father manipulates R’s views and he (R) is “too young and too confused as to where he should live”. It is her apprehension that R is confused about this issue and the court should not be too hasty to change the current arrangements.
The law applicable to parenting orders
The provisions of the Family Law Act 1975 relating to children have recently been changed. The law is complex. Although I provided each of the parties with copies of the relevant parts of the Act, neither was in a position to address detailed submissions towards them, apart from heartfelt submissions that the outcome sought by him or her respectively was the one most calculated to serve R’s best interests.
I am not critical of either Mr W or Ms A in this regard. Given that neither is a trained lawyer, it would be unreasonable to expect either of them to make elaborate submissions about the law. However, it is necessary for me to set out the relevant legal provisions in some detail, before applying them to R and the parties’ current circumstances. I will try to do that in a way which is readily understandable.
The law pertaining to the making of parenting orders is set out in Part VII of the Family Law Act 1975. In this, as in all matters to do with children, the best interests of the child is the court’s paramount or most important consideration.[6]
[6] See Family Law Act 1975 at section 60CA
At the commencement of Part VII is provided a list of aims and principles, which the court is directed to try to achieve to ensure that a child’s best interests are met through any parenting order it makes. A parenting order is what it suggests – a court order dealing with such issues as – the persons with whom a child should live; spend time and communicate with; and the persons (obviously most usually parents) who should have responsibility for making decisions, both significant and otherwise, about a child.[7]
[7] See Family Law Act 1975 at section 64B(2)
The lists of objects or aims of the legislation are set out in section 60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(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 jointly 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).”
As is apparent, each of these objects and principles are to be applied by the court, when it makes a parenting order, in a manner which is consistent with achieving the best interests of the child concerned.
The Family Law Act 1975 provides a list of matters or considerations, which the court is required to take into account, when determining what parenting order is likely to be in the child’s best interests. This list is set out in s.60CC. There are two tiers of considerations, firstly matters which are considered to be “primary” and those which are described as being “additional”.
The primary considerations, as outlined in section 60CC(2), are as follows:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
It seems clear that the overall importance of these two considerations is elevated over the additional considerations. The intention being to ensure that the focus of the court is on achieving the first two objects of the Act, namely protecting children from harm and ensuring they have a meaningful relationship with both their parents.
The two primary considerations have equal application and one is not to be considered superior to the other. However, I take it that the importance to be given to each of these considerations will depend on the particular circumstances of any given case.
In s.60CC(3) are set out the “additional considerations”. These additional considerations are as follows:
“(a)Any views expressed by the child concerned and any factors such as the child’s maturity or level of understanding that is relevant in the circumstances;
b) The nature of the relationship of the child concerned with the child’s parents and with other persons (including grandparents);
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;
d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or from any other person (including grandparents) with whom he or she has been living;
e)The practical difficulty and expense of the child spending time 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;
f) The capacity of parents or any persons (including grandparents) to provide for the needs of the child, including emotional and intellectual needs;
g) The child’s maturity, sex, lifestyle and background;
h) If the child is Aboriginal, the child’s right to enjoy his or her Aboriginal culture and the impact of any proposed order on that right;
i)The attitude to the child and the responsibilities of parenthood as displayed by the child’s parents;
j)Any family violence involving the child or a member of the child’s family;
k) Any applicable family violence orders and whether such an order is a final order or was contested;
l)The orders which are the least likely to lead to the institution of further proceedings;
m)Any other fact or circumstance.”
Although the additional considerations are subsidiary to the primary considerations, it seems they are to be applied in a common sense way, focusing on the child’s best interests. Accordingly, there may be some instances where one of the additional considerations or a combination of them, may outweigh the primary considerations.[8] However, it seems clear that it is the legislator’s intention the court’s central concern should be on constructing orders which protect children from harm and ensure they have a meaningful relationship with both their parents.
[8] See explanatory memorandum to Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 51
Given the importance the legislation places on children having a meaningful relationship with both their parents, whenever possible and appropriate, s.61DA creates for the court a presumption or starting point, when it comes to make any parenting order in respect of a child.
It is to be presumed that it is in the best interests of the child concerned for the child’s parents “to have equal shared parental responsibility for the child.” This presumption does not apply if there are reasonable grounds to believe that one or other of the child’s parents have engaged in abuse of the child; family violence; or it would not otherwise be in the best interests of the child for his or her parents to have equal shared parental responsibility.[9]
[9] See section 61DA(2)
However, this presumption of equal shared parental responsibility does not of itself determine the amount of time the child concerned spends with each of his or her parents. This issue is dealt with by s.65DAA.
Pursuant to s.65DAA, if the court makes an order that a child’s parents are to have equal shared parental responsibility for their child, it must then consider whether the child spends either equal and if not equal then substantial and significant time with both his or her parents. “Equal time” is as the term suggests. “Substantial and significant time” is defined by s.65DAA(3) and includes days that fall on both weekends and holidays in a way which is calculated to allow the parent concerned to be involved in the child’s daily routine and other occasions which are likely to be of particular significance to the child concerned.
Clearly, there will be many cases where it is not possible for the court to consider making an order either that the child concerned lives with his or her parents for equal periods of time or for substantial and significant periods. Whether such outcomes are appropriate will depend on the court’s consideration of whether such orders are likely to be in the child’s overall best interests and the practicality or workability of such orders.
In s.65DAA(5) are listed the criteria which the court must consider in determining whether it is “reasonably practicable” for a child to spend either “equal time” or “substantial and significant time” with both of his or her parents. The criteria are as follows:
“(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Finally, it should be noted that pursuant to s.65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by s.61DA.
Determining R’s best interests – the section 60CC considerations
The primary considerations
In spite of all the upheavals which have surrounded R’s care up to this stage and perhaps to some extent because of them, R has a close and meaningful relationship with both his parents. Both Mr W and Ms A acknowledge that R loves his other parent and is loved by him or her in return.
Between the date of the parties’ final separation in late 1998 and the consent order of March 2001, R lived with the mother. Between then and April 2004, R lived with the father in both Brisbane and Darwin. Between April 2004 and now, R has lived with his mother in Pittsworth and then Mount Isa. Clearly R knows both his parents very well indeed because he has spent extended periods of time in the care of them both.
Although I am concerned that the parties’ difficult and conflictual relationship has the potential to be emotionally harmful to R in the long run, it seems that he is coping reasonably well at present. He makes friends easily; is doing well at school; and is a pleasant child to be with. This is to the mutual credit of both parents. It is however apparent that R feels the emotional burden of the “tug-of-love” between his parents. He is acutely aware of the conflict between his parents over where he will live in future and knows inevitably one of his parents will be deeply upset at the outcome of these proceedings. In many ways, this is an unacceptable emotional load for a child of R’s age to bear.
Given the fact that R is now 11 years of age, it is clearly the case that he has sufficient intellectual maturity and memory of both of his parents for him to be able to maintain a sense of attachment to both his parents, whether he lives ultimately in Mount Isa or Darwin. In this sense, his relationship with both his mother and father will continue to be meaningful and significant whatever is the outcome of these proceedings. The level of relationship is sufficiently resilient for it to be able to be sustained by R spending periods of time with his other parent during school holidays and communicating with that parent on the telephone.
In this context, the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful” is, when it is attached to an idea or some object denotes the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful” to the child concerned after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
These considerations cause some difficulty in this case. There is no outcome available which will enable R to have an equally significant relationship with both his parents. If I make the orders the father wishes, R will see his father regularly during the school week and on weekends, as well as during some parts of the school holidays. However, Ms A will feel upset and distressed. She will be unable to play as significant role in R’s life, as she has done between April 2004 and now.
On the other hand, if I make the orders the mother wishes, R will not be able to share time with Mr W during the school week and on weekends. Inevitably as a result, Mr W will feel like a “holiday dad” and he will be upset at the outcome and feel that his relationship with R is not as significant or meaningful as it otherwise might be.
Accordingly, there is no satisfactory outcome in this case. The options available cannot be manipulated like the surface of a rubik’s cube to reach a perfect result. It is not possible, due to the geographical constraints of this case, for R to have an equally significant or meaningful relationship with both his parents. Certainly not in the terms envisaged by the presumptions created by s.61DA and the provisions which flow from it, namely, that children should spend either equal or substantial time with both their parents. This being the practical underpinning of what a “meaningful relationship” is taken to be.
The rationale of s.65DAA is that children benefit in an emotional and developmental sense from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
In an ideal world, bearing in mind the structure and intent of the new law, it would be beneficial to R to be able to interact with his parents in such a variety of settings and ways. It is simply not possible here because Mr W lives in Darwin and Ms A lives in Mount Isa. Inevitably, R’s relationship with one of his parents will be less rich and more difficult to sustain because of this tyranny of distance.
As a result, regardless of the outcome in this case, one of the parties will feel hard done by. The resolution of the case may well be a source of continuing bitterness between the parties. After the decision has been made, I hope that the parents will each cope with the situation as well as possible, so that the difficulties for R will be minimised and his relationship with each of his parents maintained as well as the circumstances permit. I am however well aware that the outcome envisaged by s.60CC(2)(a) cannot be achieved in this case.
Although each of the parties has been critical of the other in all manner of ways over many years, this is not a case where either alleges that R has been subjected to serious physical or psychological harm as a result of being exposed to abuse, neglect or family violence. The evidence indicates that R is a happy, well cared for child, although he does feel burdened by the high level of conflict between his parents over arrangements for his care.
In the family report, Mr Ralph indicates that R reported to him “having witnessed verbal arguments between his mother and Mr S, sometimes over him.”[10] I have no reason to doubt these reports nor did Mr Ralph. It seems clear that R finds these arguments upsetting and they have some consequences for his emotional well being.
[10] See family report at paragraph 43
The nature of R’s relationship with Mr S is a significant factor in this case, particularly the level of resentment R may feel towards him (Mr S) as he (R) grows older, particularly if he feels Mr S is not treating his mother appropriately. However, the evidence does not indicate that R has been exposed to damaging levels of family violence. Certainly there are no psychological indications of this in the material before me. The mother deposed that Mr S had never used verbal abuse towards R and this was something she would not tolerate. I accept this evidence.
Accordingly, in this case, it does appear that the primary considerations provided by s.60CC will be fundamental in its determination. It is necessary therefore to turn to the additional considerations outlined in sub-s.(3).
a) R’s views
The parties have fundamentally different opinions about what R’s views are in terms of where and with whom of his parents he would prefer to live. In my view, this issue of what, if any, R’s purported preference in regards to where he should live in future is likely to be very far from cut and dried and is a matter which I should approach with extreme caution.
I consider it highly likely that the parties’ strong feelings about the issue of where R should live in future, something of which R himself is very conscious, has implications for what each of the parties currently believe is R’s wish in the matter. R is likely to tell each of the parties what he believes they each want to hear or at the very least not to attempt to dissuade them from believing it.
For R himself, the issue is not a black and white one and he has mixed emotions about it. In such circumstances, both the father and mother are likely not to be particularly objective or dispassionate about the issue. Just because both Mr W and Ms A passionately believe R now wishes to live with him or her does not mean either that he or she is mistaken or lying or that he or she is in a better position to necessarily know what R’s view is. Essentially both Mr W and Ms A want to believe that R wants to live with him or her respectively.
Mr W is a strong minded individual, as his conduct of various episodes of litigation about R up to this stage shows. He seemed to me to be determined to achieve his preferred outcome. It is his position that he only embarked upon this current round of litigation because R told him he wanted to live with him in Darwin. This led to Mr W’s decision not to return R to his mother at the end of the September/October school holiday in 2005. A decision which was clearly taken without any discussion with Ms A.
Mr W has difficulty, I think, in considering the possibility that R’s view may have been either influenced by him at the time or he may have changed his mind in the period since. Unlike R, Mr W sees the issue in black and white. For obvious reasons, he has an emotional investment in seeing it that way.
I consider that Ms A is likely to be more sensitive to R’s views but is not completely dispassionate about them. It was her evidence, which I accept, that in the period prior to this hearing, R indicated to her a desire to live with his father in Darwin. As a consequence, she made arrangements with Mr W to this end. However, about a week before R was due to go, he indicated to her that he had changed his mind but was frightened to tell his father because he felt he would “let Dad down”.
Overall, it was Ms A’s view that R was likely to want to live in Mount Isa, when he was in Mount Isa and live in Darwin, when he was in Darwin. This view fitted with Mr Ralph’s assessment of the situation.
To Mr Ralph, R described his current situation as “difficult and confusing” and he was “reluctant” to indicate in any definitive sense, where he wished to live. Mr Ralph was satisfied that R felt burdened by his parent’s expectations in regards to the matter and accordingly did not wish to clearly align himself with either his mother or his father. This led Mr Ralph to the view that R’s preference was for the court to decide the matter of his future place of residence.
The nearest R came to expressing any preference, when he was interviewed by Mr Ralph, was when he acknowledged to Mr Ralph he had been “thinking mostly” of living with his father. In his report, Mr Ralph indicates that R stopped short of explicitly expressing a desire for this to occur. Mr Ralph also acknowledged the fact that R was in Darwin at the time of the interview may have had some affect upon him. However, Mr Ralph was also able to identify a number of other factors which were, most likely, at work with R at the time.
These factors included what Mr Ralph described as R’s “troubled” relationship with Mr S; R’s perception that Mount Isa had limited recreational opportunities for him, when compared to Darwin; and perhaps most importantly, the attraction for R of spending time with his older half siblings, C and T, and being part of an extended family in Darwin. As a result of these matters, Mr Ralph expressed the following opinion in his report, under the heading “Evaluation”:
“Although R has not expressed a preference to reside with either parent I believe he is attracted more to the prospect of residing with his father in Darwin than he is to the prospect of remaining with his mother and Mr S in Mt Isa. He is, however, clearly torn in his loyalty to his parents. He is well aware of the parents’ antipathy towards each other and I suspect he feels to some extent burdened by the expectations his parents hold. I believe he is aware of his father’s wish to have all his children living in close proximity to him, and at the same time he is aware of how distraught his mother would be if he were to leave her care. As such R finds himself in a “difficult and confusing” situation. Hence, his preference is that the matter be left to the Court to decide.”[11]
[11] See family report at paragraph 52
Section 60CC(3)(a), by its reference to the term “views” rather than “wishes” represents a legislative change to the nomenclature previously provided by s.68F(2)(a) of the Family Law Act 1975. The change seems to be a subtle but important one. In the explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 it was said as follows:
“The amendment recognises that a child may not necessarily want to express a ‘wish’ about which of his or her parents the child will live with or spend time with. It is intended that ‘views’ will also capture a child’s perceptions and feelings, and will allow for any decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live with or spend time with. It is intended that reference to a child’s ‘views’ will not exclude a child expressing his or her ‘wishes’.”[12]
[12] See explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56.
The choice, which both Mr W and Ms A, to a lesser extent, have placed before R is agonisingly difficult for him. It is a “no win” situation for him. He is likely to see pros and cons of living both in Mount Isa and Darwin. He has no wish to upset either of his parents but realises the avoidance of this situation is impossible for him. I am fearful that the behaviour of both parties, but particularly the father, have emphasised the degree of difficulty for R. Thus it is impossible for R himself to make this important decision.
However, in spite of these difficulties, a decision must be made. In my view, there are a number of significant factors, which are likely to be influencing R to have a slight preference in favour of Darwin. The chief of theses factors is his antipathy for Mr S, something which is likely to grow more pronounced as he gets older and his hankering to be part of a larger family. It is incumbent upon the court to take into account these perceptions and feelings, which R has apparently expressed to Mr Ralph. In his report, Mr Ralph wrote as follows:
“Although R has not explicitly stated a wish to reside with the father it is evident that the is attracted to the prospect of having a closer relationship with his father and being free of the stress he experiences in living with Mr S. He is also attracted to the opportunities for closer engagement with his extended family in Darwin and the opportunities afforded by living in a larger metropolitan centre.”[13]
For the reasons already provided, I accept Mr Ralph’s evidence in this regard.
b) The nature of the relationship between R and each of his parents and other significant persons
[13] See family report at paragraph 49
As previously indicated, one of the significant drawbacks with Mr Ralph’s report is that he did not have an opportunity to observe R interacting directly with either Ms A or Mr S. As a result, Mr Ralph did not allude directly to the quality of the relationship between R and his mother in the report, although he does not seem to be critical of it noting that R “openly expressed his love for both of his parents”. In cross-examination, he indicated he did not “question” the importance of R’s relationship with his mother.
It seems to have been a fundamental aspect of FM Jarrett’s judgment that R was more closely attached to his mother at that time, primarily because she had been his primary carer for the first five and a half years of his life. This certainly was the view of Ms Derrington, who compiled the two family reports, which were available to His Honour in April of 2004. In all these circumstances, I accept that R has a closed and loving relationship with his mother.
It is a significant aspect of the mother’s case that, because of his occupation as a truck driver, Mr W will be absent from Darwin for significant periods of time and, as a result, responsibility for caring for R will devolve on to others, if there is a change in his living arrangements at this stage. This issue was a live one in the proceedings before FM Jarrett and again seems to have been influential in His Honour’s decision.[14]
[14] See A & W [2004] FMCAfam 176 at paragraph 54
It is the father’s evidence that he is no longer required to travel routinely away from Darwin and his employment is centred on making deliveries in the Darwin area alone. This means he will be largely available to care for R after school and on weekends. Certainly that he will be a consistent presence in R’s life. I accept his evidence in this regard.
Mr Ralph described R’s relationship with his father as “close and companionable” and based on a mutually shared interest in the speedway, motor bikes and auto mechanics. It is likely, I think, that Mr W would be aware of the attraction of these activities to R and may perhaps, either consciously or unconsciously, have been attempting to influence R by providing them to him during school holiday periods. I am also aware that the relaxed holiday environment which R was enjoying at the time of the report may have influenced Mr Ralph’s impression of the nature of the relationship between Mr W and Reggie.
However, at the same time, I cannot overlook the fact that, between 2001 and April of 2004, R was living in the main with Mr W. Accordingly, the relationship between him and R is likely to be significant. At the same time, R lived with his mother in the early formative stages of his life. It was Ms Derrington’s impression in late 2003 that R was pining for his mother. In some ways, this expresses the dilemma of the case. Because of the dysfunction in his care, Reggie has a close and loving relationship with both his parents.
The mother and Mr S began to live together at some time in 2000. R went to live with the father in March of 2001. Accordingly, it seems unlikely that R experienced a significant period of time living with Mr S in the period prior to April of 2004. Mr S has a son, G, who is now aged about 17 years. G has recently left the mother and Mr S’s home in Mount Isa, as he has formed a significant relationship of his own and has himself become a parent.
It was Mr Ralph’s impression that R and G did not have a significant sibling relationship with one another. In her report, Ms Derrington observed R to interact happily with G and Mr S. This was in January of 2004. Again Ms Derrington’s observations must be regarded as a “snap shot” in time. It seems to me likely that much water has flowed under the bridge since that time. In particular, it seems likely that R and Mr S have a troubled relationship with one another. It is of note that Ms A acknowledges this to be the case and in her evidence indicates that R and Mr S clash over disciplinary issues but otherwise get on well.
In his interview with Mr Ralph, Mr S described himself as being “of the old school” when it came to disciplinary issues. From this, I presume he means that he believes that he is entitled to exert parental authority over R. It is the mother’s perception that R is not required to do chores, whilst he is with his father and is not subject to the same degree of discipline as in her household. In essence R has an easier disciplinary ride in Darwin than Mount Isa and this in part explains the attraction of Darwin to him.
To Mr Ralph, R described Mr S as being “not nice” and being bossy towards him. In Mr Ralph’s assessment, R clearly resented Mr S exerting parental authority over him. It also seems to be the case that R disapproves of some aspects of his mother’s relationship with Mr S, particularly that they argue, as he perceives it, over him (R). R reported that he had been in trouble with Mr S for “back-chatting” in the past.
In Mr Ralph’s experience, the dynamic between Mr S and R was not an uncommon one from his observation of other pre-adolescent boys with their step-father’s, particularly if the child concerned had a close relationship with his own biological father. Mr Ralph was concerned that R’s relationship with Mr S was likely to become more rather than less problematic in future and believed that it was unlikely that it could be improved through counselling or some other therapeutic intervention.
In Mr Ralph’s expression “a desire for autonomy” was one of “the defining characteristics of adolescence”. As such, R was likely to become increasingly resentful of being directed by Mr S, particularly if he believed that Mr S had no proper parental basis to provide him with such direction, in place of Mr W. This “common dynamic” often resulted in personality clashes between children and their step-parents.
In Mr Ralph’s view, such clashes frequently become more pronounced as a child moves into teenage years because inevitably, with growing maturity, the child concerned would “gain voice”. This had the potential to lead to more familial conflict, which might result in the child concerned experiencing negative emotions, particularly anxiety. Mr Ralph was concerned at the prognosis for R of suffering such negative emotions but obviously was not in a position to forecast what their results would be in actual terms.
One of the difficulties in this case, is that Mr S did not give evidence in it. The mother was not asked why this was so and did not herself, provide any explanation for the omission. In the absence of Mr S, I have no reason to disbelieve Mr Ralph’s assessment of the relationship between R and Mr S. Essentially, Mr Ralph is pessimistic about the nature of this relationship and believes that it is likely to become increasingly problematic as R grows older.
It also seems to me to be unlikely that the father himself has any great insight into this relationship and so will be able to provide emotional assistance to R in easing the problems R may have with Mr S. Sadly, I think it likely that Mr W will have vested interest in ensuring things remain rocky between R and Mr S.
Mrs G is an important feature of Mr W’s case. She did not give evidence before me either. In the past, it was Ms Derrington’s view that R did not appreciate being left in the care of the father’s former partner, Ms R, and felt abandoned by this father. Again it is difficult to assess whether there are likely to be such difficulties between R and Mrs G. However, there has been a significant change of circumstances between now and the period in 2002/2003, when R was living in Darwin and the father was regularly away with his work. The father is likely to be a permanent, daily presence in R’s life, if there is a change in his living arrangements at this stage and it seems unlikely that there will be a reversion to what Ms Derrington described as “de facto foster care”.
In the past, R has expressed some ambivalence about his relationship with T and C. At one stage, he lived with T in Brisbane. His relationship with C does not seem to have such deep foundations. I accept Mr W’s evidence that R has a warm friendship with his older cousins, C and C.
The impression I have of R is that at times he has felt himself to be somewhat isolated child. His life has been one of change and movement. In such circumstances, it is not surprising perhaps that R should have a yearning to belong to wider family structure. Mr Ralph observed R to have a “very comfortable and close relationship with his half siblings”, whom Mr Ralph believed provided both emotional and family support to R, as did his cousins, C and C. In his report, Mr Ralph wrote as follows:
“In contrast R has no extended family in Mt Isa. Although Mr S has another 17 year old child, G, who recently became a father, this relationship does not have the same significance for R as that which he has with family in Darwin. I believe that Mr W has effectively encouraged R’s sense of being a member of a broader extended family group and that this has provided R with a sense of belonging.”[15]
[15] See Mr Ralph’s family report dated 10 May 2006 at paragraph 51
The mother acknowledged that her own relationship with her mother in South Australia had broken down. In those circumstances, it seems unlikely that she is in a position to provide R with a sense of belonging to his maternal family other than that which would obviously be available from her.
c) The willingness and ability of each of R’s parents to facilitate and encourage a close and continuing relationship with the other parent
This sub-section is a new one and must be read in conjunction with s.60CC(4), which requires the court to consider how each of a child’s parents has in the past fulfilled or failed to fulfil his or her parental responsibilities towards the child concerned. The type of matters which it is envisaged the sub-section will encompass include the payment of child support and adherence and reliability in respect of past contact arrangements. It is a significant sub-section, which emphasises the responsibilities of parenthood and the obligation of parents to meet those responsibilities.
In this case, over many years, both parties have serious and trenchant criticisms of the other in regards to the parenting of R. In essence, both parties accuse the other or acting unilaterally in regards to R’s care without any consultation with the other and putting his or her emotional needs before those of R himself. In my view, there is considerable strength to both parties’ criticisms, which stem from the hostile and conflictual relationship of the parties themselves and their long standing inability to communicate with one another about issues to do with Reggie or reach any form of compromise about them.
As a result, in the past, both parties have had recourse to the more extreme forms of judicial intervention into arrangements for the care of Reggie through such measures as recovery orders and other ex parte orders. Both parties have retained R in opposition to existing court orders. In addition, I am satisfied that the track record of both parties, so far as the payment of child support to the other is concerned, is abysmal. The picture I have is that when R is with one of his parents, regardless of the identity of that parent, he or she acts as if hermetically sealed from the other.
In her first report, Ms Derrington wrote as follows:
“R’s parents demonstrate a profound lack of trust, and a complete inability to communicate about the child. The reports from both parents refer to the child being monitored when speaking on the phone, among reference to many other ways that each parent sees the other as not providing appropriate care for R, and as restricting telephone contact unnecessarily. On both sides, it is expressed that the other side chooses not to communicate about R.”[16]
I suspect that very little has changed in R’s life since Ms Derrington made that observation in December of 2003, other than that the boot is on the other foot, so far as Mr W is concerned.
[16] See Ms Derrington’s family report dated 8 December 2003 at paragraph 50
In spite of these extreme difficulties, it is the case that R loves both his parents and has a good relationship with each of them, although he is perplexed by the level of conflict between them. Sadly, I suspect that this conflict has become the “background noise” of his life and he manages to block-out the worst aspects of it.
In these circumstances, it is difficult to assess who of R’s parents is likely to be more willing to facilitate and support the relationship R has with the other parent. Given the distance between Mount Isa and Darwin and the reliance R will have on telephone contact to communicate with one or other of his parents, it is an important consideration. Overall, I believe that Ms A is less a captive of the past than Mr W is and is so more able to move on, although neither party can be considered to view the other in a positive light because of their long and acrimonious history.
However, on balance, because of the past failings of both parties, I do not consider that the matters for consideration under this sub-heading assume pre-eminence. The considerations which the sub-section enlivens will be problematic, whatever is the outcome in this case.
d) The likely effect of any change in R’s circumstances, including the likely effect of being separated from one of his parents
The matters for consideration under this sub-section are highly relevant in this case. R’s life up to this stage has been one of change and flux. This is the third major set of legal proceedings concerning R’s care. He has moved backwards and forwards between his mother’s and his father’s home. It is the mother’s position that enough is enough and R should remain in her care, without any further changes.
As has previously been indicated, the father is critical of the mother for moving first from Pittsworth to Mount Isa and then moving R’s school and accommodation once again, when she and Mr S had arrived in Mount Isa. He asks the court to view these movements in the context of the mother’s frequent changes of address in the past, particularly between Toowoomba, Brisbane and Central Queensland. In contrast, he points to the fact that he himself has only ever lived in Coopers Plains or Darwin since the parties separated. I think this is somewhat disingenuous because, in my estimation, both parties have led something of an itinerant lifestyle, arising from the demands of being involved in the transport industry.
There is great commonsense in the mother’s position and it is appealing to consider leaving R where he is, without yet another major upheaval in his care. As I have already indicated, it is not generally in the interest of children that there are repeated applications about them regarding their living arrangements. Final orders are intended to be just that “final”. Generally speaking, children benefit from a sense that their care arrangements are stable. In addition, repeated litigation does not encourage parents to have a cooperative approach to parenting.
In my view, the fact that R has been in the mother’s care since April of 2004, particularly after the upheavals of his earlier life, is the strongest factor which militates against a change in living arrangements for R at this stage. On the other hand, Mr Ralph believes that R would be able to cope with such a change, particularly if his mother was supportive of it. However, there is a significant risk that Ms A will be emotionally distraught at such a change and R will feel in some way responsible for his mother’s distress. As Mr Ralph indicates, such a transition must be carefully managed. Sadly, it seems the schism between the paternal and maternal aspects of R’s family will remain pronounced for the foreseeable future.
e) The practical difficulty and expense of R spending time and communicating with his parents
It is obviously a very long way between Darwin and Mount Isa. As I have already indicated, the parties are likely to continue to have problems communicating effectively with one another. Accordingly, whatever is the outcome of these proceedings, there is likely to be some level of difficulty in R spending time and communicating with the parent he is not living with. It is however significant that, in recent times, the parties have worked out an equitable way of exchanging R between them. They arrange to meet at the roadhouse at Renner Springs, which is half way between Darwin and Mount Isa.
In the past, both parents have complained that R has not been made available to speak with him or her on the telephone or such telephone conversations have been monitored. In addition, both parents have complained about the frequency and quality of holiday contact. These problems seemed to have reduced in recent times, although there remains the constant anxiety that R will not be returned after a school holiday.
Overall, I do not think that the matters for consideration under this sub-heading favour one party’s proposals more than the other’s.
f) The capacity of the parties to provide for R’s emotional and intellectual needs
In his reasons for judgment published on 20 April 2004, Federal Magistrate Jarrett was critical of the father for failing to meet R’s emotional needs in the period immediately prior to the hearing, particularly because he had left R to live with Ms R, whilst he pursued his employment as a truck driver. As I have already indicated, this was a major factor which led Ms Derrington to recommend a change in R’s living arrangements in her two family reports.
It is essentially Mr W’s position that financial necessity and his desire to reunite his family in the one location drove him to this expediency, the need for which has passed since he has become well settled in Darwin. In my view, there is some considerable substance to Federal Magistrate Jarrett’s views. I accept however that now the father is in a position to dedicate himself to providing for R, in both a physical and emotional sense.
One of the responsibilities of being a parent is to encourage a close and secure relationship between the child concerned and the other of his or her parents. I am gravely concerned that both parties have shown considerable failings in this regard. I accept that R is currently confused by the conflict between his parents.
The father is critical of the mother for not properly providing for R’s educational needs as evidenced by the fact that he has attended three primary schools in the period since he came into the mother’s care. It is his position that he would provide more educational continuity for R. In my estimation, both parties are likely to be able to provide for R’s educational and physical needs. In spite of my criticisms of both parties, I also think they are both likely to be able to meet Reginald’s emotional needs. As Mr Ralph indicates, R has a good and loving relationship with both his parents.
g) The maturity, sex, lifestyle and background of the child concerned
I do not think that the matters which fall for consideration under this sub-heading are generally relevant in this case.
h) Aboriginality
This sub-heading is not relevant as neither party identifies as an Aboriginal or Torres Strait Islander person.
i) The attitude that each party has demonstrated to the responsibilities of being a parent
For reasons already provided, I do not believe that either of the parties is without fault in terms of his or her attitude towards the responsibilities of being a parent. However, the fact remains that R is a much loved child, who apparently is happy and outgoing. Both parties describe him as “well mannered” and “quick to make friends”. Accordingly, in spite of the criticisms both parties have made of each other and the matters which I have raised in these reasons for judgment, the fact that R is as both parties describe him, are credit to both their parenting of him.
j) Any family violence
k) Any family violence order
I have dealt with these issues under the primary consideration heading and do not propose to revisit them at this stage.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The matters for consideration under this heading are vexed. The acrimonious relationship between the parties, their mistrust of one another and of their respective motives, in so far as R’s care is concerned, have driven the unacceptably high level of litigation in this case. I suspect that the father never accepted the validity of the decision of April of 2004, and was determined to revisit it whenever the opportunity arose.
In such circumstances, if the decision of the court is that the status quo should continue, I doubt that the father would be accepting of such an outcome but rather would want to agitate the issues involved again in future, particularly if, as Mr Ralph believes will occur, there is a worsening of relations between Reginald and Mr S. Accordingly, in my view, the outcome which is least likely to lead to the institution of further proceedings is if R lives with the father in Darwin in future.
I accept that some, including no doubt Ms A, would see such an outcome as meek capitulation by the court in the face of Mr W’s unreasonable litigiousness. However, regardless of the validity or otherwise of this view, it remains my assessment that Mr W has little insight into the potentially detrimental consequences for R of continuous litigation and is likely to continue to hold a blinkered view about what is best for R in future and inevitably, if he is unsuccessful at this stage, he will be unwilling to let the issue drop in future.
Although Mr W may perhaps be criticised for bringing these proceedings so soon after the determination provided by Federal Magistrate Jarrett, the fact remains that Mr Ralph supports his position and sees considerable merit in it. When the matter was initially fixed for hearing, I determined that the preferable course was to order a family report rather than address the issues raised by the rule in Rice & Asplund as a preliminary issue. Given the contents of Mr Ralph’s report, this seems to have been the preferable course.
Conclusions
This is a difficult and finely balanced case, which provides no easy outcome. It is regrettable that this is the third major set of proceedings concerning R, who is just 11 years of age. Like Mr Ralph, I do not question the nature of R’s relationship with either his father or mother. He has a strong and loving relationship with each of them. Both Ms A and Mr W are able to provide R with the love he requires and supply his other physical needs.
This is not a case where R’s views are either clear or decisive. He is perplexed by the seemingly unending conflict between his parents and worried about upsetting either his mother or father by displaying some perceived lack of loyalty to one or other of them. His is not a comfortable position for an 11 year old. It may well be the case that R would greet a decision that he is to live in either Darwin or Mount Isa with approximately level stores of equanimity, content that he had not had to make such a decision. It seems to the case that he is a child who fits in wherever he is and throughout his life to date has become used to change.
Given the finely balanced nature of the case, minor factors are likely to be decisive. This is not a case where there are issues of family violence nor, given the significant periods of time R has spent with both his father and mother in the past, can it be said that he is not likely to have a meaningful relationship with each of them in future. Although obviously, given the geographical constraints of this case, it is inevitable that in future one parent will feel R’s relationship with the other is more significant because he or she has been unsuccessful in these proceedings. Given that the father lives in Darwin and the mother lives in Mount Isa, for obvious reasons, a shared care arrangement for R’s future parenting is impracticable.
I am conscious that both parties, in the absence of skilled legal representation, have had to present their own cases. Both of which suffer from an inadequacy of preparation and the absence of important witnesses. In such circumstances, Mr Ralph’s report and recommendations assume greater importance. This report too is not without its failings. However, I consider Mr Ralph’s report to be full of robust commonsense. I do not dismiss his concerns about the potential for difficulties to arise in the relationship between step-father and step-son, particularly given the high level and endemic nature of the conflict present between the maternal and paternal aspects of R’s family.
What this case boils down to, in my view, is whether the court should take a cautious “wait and see” approach or heed Mr Ralph’s concerns about the likely problems in R’s relationship with Mr S. On balance, I prefer Mr Ralph’s recommendations, notwithstanding my disinclination to overturn a residence order, which was only made a little over two years ago. As I previously indicated, I am concerned about Mr W’s lack of insight and his likely predilection to pursue litigation, until he gets his own way.
However, it is the fact that R is used to change and is not disinclined to move to Darwin to live. It is not an environment with which he is unfamiliar and I accept that he has a hankering to be part of a broader family group, including his half siblings and cousins. It is not unrealistic to expect these feelings will get stronger rather than weaker in future. In addition, R sees a number of material attractions in Darwin, not the least of which is his motorcycle.
In 2003/2004, it was Ms Derrington’s perception that R was pining for his mother, whom she (Ms Derrington) regarded as being his primary carer because of the central role Ms A had assumed from the time of R’s birth. For a child of R’s age, a period of two and a half years is a lengthy one indeed. Much has changed in that time. Of the greatest moment is the fact that Mr W is now fully settled in Darwin. It is no longer necessary for him to travel away from the town for lengthy periods of time due to his work. To a significant degree, I accept that this factor answers one of Ms Derrington’s major criticisms against Mr W.
I am highly cautious about what each of the parties have said about what are R’s wishes in this case. I consider that it is likely that R is highly influenced by the feelings of both his parents and where he is at the time of expressing these purported views. As both Mr Ralph and Ms Allison have observed, when R is in Darwin he wants to be in Darwin, when he is Mount Isa he wants to be in Mount Isa.
I am concerned that both parties have some difficulty in distinguishing their own needs and wants from what is likely to be in R’s best interests. Certainly they are unable to focus conscientiously on what is likely to be best for R. Hence the need for more litigation. In particular, Mr W is unlikely to perceive the complexity of the issues surrounding the case and to become fixated on achieving what he believes is R’s wish.
However, having made these observations, I think there is some truth in Mr Ralph’s view that R is “thinking mostly” of living with his father in Darwin at present. The factors which are tipping him in this direction are the tensions in his relationship with Mr S and his resentment that Mr S attempts to exert some paternal authority over him and his desire to be part of a big family. I am not critical of Mr S. His role is likely to be a difficult one, so far as R is concerned, because of his lack of continuity in R’s life and the parental conflict which has surrounded him until this stage. However, I believe that I would be unwise to discount these factors, which I believe are likely to become more pronounced in future.
In all the circumstances, I am satisfied that it would not be prudent for the court merely to dismiss the father’s application on the basis of the rule in Rice & Asplund alone. As I remarked earlier, there are inherent difficulties in comparing a child’s status and position from the vantage point of family reports alone. Such reports are inevitably somewhat subjective and, more importantly, are also frozen at one particular spot in time. Children’s relationships are often fluid.
The dynamics surrounding R are particularly complex. Accordingly, it would not have been appropriate for the court to dismiss the father’s application in 2006 because of the views Ms Derrington expressed in 2004 and the weight Federal Magistrate Jarrett subsequently gave to them. Ms Derrington had a view about the relationship between R on the one hand and Mr S and G on the other. The relationships were significantly untested at that stage. G has now left home and R himself reports to Mr Ralph some tensions in his relationship with Mr S.
These factors and the change between Mr Derrington’s opinion and Mr Ralph’s are of such moment to justify the re-opening of the issue of where R is to live in future, notwithstanding my disquiet about some aspects of Mr W’s past parenting of R and his obvious enthusiasm for litigation. It is as impossible now as it was in 2004 to forecast how R’s relationship with Mr S will ultimately unwind but there are worrying signs there, which both Ms A and Mr Ralph have noted. Although, for obvious reasons, the mother is more confident about the future than Mr Ralph is.
At the end of these somewhat lengthy reasons for judgment, it is necessary for me to weigh up the evidence and focus on the outcome which I believe will best serve R’s interests. With some considerable hesitation, I have come to the view that R’s best interests will be served if he lives with his father in Darwin. Ms A will be bitterly disappointed at this outcome. However, her relationship with R is secure and abiding. I believe that it will survive the separation. I am also confident that the parties will be able to manage the necessary arrangements for R to spend time with his mother in Queensland during school holidays.
It is appropriate that the parties have equal shared parental responsibility for R pursuant to the provisions of s.61DA. As previously indicated, it is not reasonably practicable for R to spend either equal time or substantial and significant time with his mother due to the very great distance between the parties’ respective homes.
Pursuant to the provisions of s.65DAC, the effect of the order for equal shared parental responsibility is that the parties are required to make joint decisions about major long term issues to do with R. Such long term issues include matters to do with R’s education (both current and future); his religious and cultural upbringing; his health; and most importantly, in the context of these proceedings, any changes in his living arrangements that may make it significantly more difficult for R to be able to spend time with one or other of his parents.
Pursuant to the provisions of section 65DAE the parties do not have to consult about issues that are not major long term ones and in order to avoid confusion, I will make an order that each party shall individually have sole responsibility for making decisions concerning aspects of R’s care, welfare and development, which arise on a day to day basis, when R is in the care of each of them.
The final issue which arises is when precisely R should commence living with this father. In this regard, in order to minimise disruption to R, I have come to the conclusion that he should move to live with his father at the end of the third term Queensland school holiday in 2006.
For all these reasons, the orders of the court will be set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 8 August 2006
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