W and L and C
[2001] FMCAfam 64
•18 June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
W & L & C [2001] FMCAfam 64
FAMILY LAW – Residence – contest between mother and stepmother – mother’s peripatetic lifestyle – mother’s various partners and risk to child posed by them – stepmother’s relationship with a man in prison for sexual assault.
| Father: | J W |
| Mother: | K L |
| Intervener: | K C |
| File No: | ZC 2049 of 2000 |
| Delivered on: | 18 June 2001 |
| Delivered at: | Canberra |
| Hearing Dates: | 24 & 25 January 2001 24 May 2001 |
| Judgment of: | Brewster FM |
REPRESENTATION
| Counsel for the Father: | Mr W appeared in person |
| Counsel for the Mother | Ms Tonkin |
| Solicitors for the Mother: | Barker & Barker |
| Counsel for the Intervener: | Ms Godtschalk |
| Solicitors for the Intervener: | Ken Johnston Bedford & Co |
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA
ZC 2049 of 2001
J W
Father
And
K L
Mother
And
K C
Intervener
REASONS FOR JUDGMENT
Introduction
This case concerns competing residence applications with respect to the child C W, born 26 July 1989. C is the daughter of J W and K L. Each of these parents originally sought a residence order in his or her favour. Mr W does not now press his application. The other party to the litigation is K C. Ms C is, in effect, C’s stepmother as she lived for some years with C and Mr W. She seeks an order that C reside with her.
The matter was heard on 24 and 25 January 2001 and judgment was reserved. Before judgment was delivered an application was made on behalf of Ms L to re-open and further evidence was taken on 24 May. On that date the court was informed that C had made allegations that she had been sexually assaulted by Mr W. As a result of this Mr W has been charged and is awaiting a committal hearing in the NSW Local Court. Mr W denies any sexual assault but it is unnecessary to resolve this matter as he conceded that under the circumstances no orders for either residence or contact should be made in his favour at the present time. The issue therefore is whether C should live with her mother or continue to live with her stepmother.
Background
Ms L was born on 6 August 1961 and is therefore 39 years of age. Mr W was born on 6 September 1965 and is therefore aged 35. Ms C was born on 18 November 1969 and is therefore 31 years of age. Mr W and Ms L commenced to live together in 1988. As mentioned above C was born on 26 July 1989 and the parties separated later that year. At the time they were living in Sydney. C remained with Ms L. Mr W and Ms C commenced to live together in late 1993. C came to reside with them in December 1996. In February 2000 Mr W and Ms C separated with Mr W leaving their home in Z. C remained with Ms C until July that year. In July C went to Sydney to stay with her mother for what was anticipated to be a period of holiday contact. In fact her mother decided not to return her. Mr W filed an application for her return. On 17 July I made an order that C should be returned to her father but should reside until further order with Ms C. That order was served on Ms L on 18 July. Ms L did not comply with the order and did not return C to her father. I subsequently issued a recovery order as a result of which C was taken from her mother by police. Interim orders were subsequently made that she continue to reside with Ms C.
One of the issues in this case is Ms L’s rather peripatetic life style and the number of and choice of her partners. It is necessary therefore to set out the history in relation to these matters. It should be noted at the outset that many of the dates and periods set out below are uncertain. Ms L was not a good historian and her memory was quite poor.
The history insofar as the various relationships in which Ms L has been involved is as follows:
a)Ms L married R S in 1982. On 2 January 1984 a son J was born of this marriage. The parties separated in 1985.
b)Some time later Ms L commenced a de facto relationship with M D. On 6 November 1987 a son T was born of this relationship. This relationship ended in late 1987 or in 1988.
c)As previously indicated from some time in 1988 until September 1989 she lived with Mr W.
d)Shortly after the relationship with Mr W ended she commenced a de facto relationship with B F. A daughter L was born of this relationship on 16 August 1990. It is likely that this relationship ended in late 1991 or early 1992. Whilst Ms L’s evidence was confusing it is possible that this relationship was later revived for a period.
e)At some time, perhaps after the end of the relationship with B F, she formed a relationship with P W. She says that this was not a de facto relationship and she lived in Mr W’s parents’ home while Mr W had a one bedroom flat of his own. It appears that she and the children stayed in that flat at times.
f)After this relationship ended she commenced a de facto relationship with S P. This was probably in 1992. It appears that this relationship ended in 1995 or 1996.
g)She then commenced a relationship with D G. It is not clear how long this relationship lasted. There are some indications that it ended in late 1996 but it must have been current in December of that year as Ms L says that he forced her into consenting to an order in the Family Court at this time giving residency of C to Mr W.
h)She commenced a relationship with R A, probably in 1997. That relationship ended in 1999.
i)She later had an involvement with a Mr F. At first this was a true relationship but later it became less significant. By this is meant that what started off as a romantic association became one in which Ms L described the two of them as “sex partners.” Mr F would sometimes stay overnight with her but at no stage did they live together.
j)More recently she has had a relationship with a man called L. This does not appear to have been a de facto relationship.
The history in relation to Ms L’s various residences since the birth of C is as follows:
a)When C was born Ms L was living in A. There were a number of change of residence during this period.
b)At a date that is unclear on the evidence she moved from A to C. From there she moved to I in the Sydney area where she stayed with her sister.
c)After a period of living in I she moved to D where she lived in a house occupied by the parents of Mr W.
d)After a period of living in D she moved back to her sister’s place at I and then shortly afterwards moved to W.
e)About 1993 she moved from W to C and from there to G.
f)From G she moved to F. This appears to have been forced on her as she says the landlord of the G property told her he wanted to use the house as a Youth Refuge.
g)She lived at two addresses at F and then in about 1995 returned to I.
h)In circumstances I will return to later she moved to Y in, it appears, 1996. She says she moved to Y because it was her childhood home and she wanted to move from the Sydney area because of threats made against her. In Y she first stayed in a refuge. She then moved into a house in the suburb of C and then, when she formed the relationship with R A, into his house in M P.
i)When the relationship ended in about 1999 she returned to the Sydney area. She first stayed with her sister in M and then lived for a short time in B.
j)From there she moved to stay with her sister in her house in A before obtaining a Housing Commission house in the same suburb where she currently lives.
k)Her evidence at the hearing in January was to the effect that she proposed to move from A. She said that recently the father of the girlfriend of her son J came to the house armed with a baseball bat, assaulted Ms L and her sister and beat J with the bat. As a result she decided to move some distance from A. To this end she has requested alternative Housing Commission accommodation in M F which is some fifteen to twenty kilometres from A. She proposes that T and L would continue to attend the school in A that they currently attend. She proposed that C, if she were to live with her, would also go to that school. She proposed that all the children should commute by bus or cab. She said that she had been informed by the receptionist at the A school that T and L would be entitled to free bus or taxi transport to continue to attend that school even though they had moved from the feeder area for that school. If this is true, and I have my doubts, it could only be because they have been attending that school. The receptionist was not asked about the situation in relation to C who, apart from couple of days in July, has never attended the A school.
l)In addition to applying to transfer from A she also put her name down to exchange her Housing Commission residence. This apparently is usually easier to arrange than a transfer. This would involve finding a person with a Housing Commission home who would wish to relocate to the A area. She nominated M Fairfield and Guildford as places where she would be prepared to entertain an exchange. The reasons for choosing Fairfield and Guildford, which are quite some distance from A, are unclear and in evidence she said that if she were now offered a swap in either of these situations she would refuse it.
m)In the event she has now decided not to move. This evidence was given at the May hearing. The reason is that her son J has himself moved and the threat from the father of his former girlfriend has therefore apparently abated.
A significant aspect of the case put on behalf of Ms C is that Ms L has been at times irresponsible insofar as the best interests of her children are concerned with her choice of partners. There is substance in this criticism. The evidence reveals the following:
a)Her relationship with M D was an abusive one. She says that he was “bashing” her. She says that she went to the Department of Community Services to seek help in relation to these assaults. There must be some suspicion that Mr D had spent some time in prison as she says that she asked him if he had been in prison and he refused to answer her.
b)Mr W had also spent time in prison between the ages of 18 and 23 although this was for offences of dishonesty and not violence and predated the relationship with Ms L. Of course if this relationship is to be taken into account in assessing Ms L’s suitability as a residence parent then the same consideration applies to Ms C.
c)B F had also been in prison at some stage prior to his relationship with Ms L. It is not clear what offences led to this.
d)She met Mr P when he was in prison. That relationship appears to have lasted three years or so. She does not know what Mr P was in prison for. She said that he was bad tempered and that she was frightened to ask him. She gave evidence that she suspects Mr P may have sexually abused C.
e)While she was living with Mr G Ms L was convicted of attempted robbery. She describes it as a “handbag snatch.” She was given a community service order. She says that she committed this offence at the direction of Mr G who threatened her with violence if she refused. It was after this conviction that she moved to Y. The relationship with Mr G however did not end as he joined her in Y. It should also be noted that the move to Y resulted in a breach of the community service order. She was not dealt with in relation to this until last year and was not given a custodial sentence.
f)At one stage she also had a “friendship” with M C. Mr C was in prison at the time. She wrote him letters which described them as having a brother/sister relationship. Mr C was in gaol for sexual offences involving young children. She said she did not know this at the time and, when she discovered it, ended the association.
In comparison to Ms L, Ms C has had a fairly stable position so far as living arrangements and relationships are concerned. She was living at W when she first met Mr W and through him Ms L and C. She moved from there in 1993 to Z where she has lived until recently. At the hearing in January she said nothing to indicate that any change in her residence was contemplated. However she has now moved to K. I will return to this in due course.
Since breaking up with Mr W Ms C has formed a relationship with G H. This has serious implications insofar as her application that C reside with her is concerned. She does not live with Mr H because he is an inmate of the Q prison. I will return to this aspect of the case later in this judgment.
Ms C has had two other children living with her, D aged 6 and K aged 4. They are the children of Mr W’ cousin L D. Apparently Ms D was unable to care for these children. The position in this respect has now altered. The Department of Community Services has decided that K, who is a ward of the state, should be returned to his mother. Ms C has sought, or proposes to seek, a review of that decision. Proceedings have been instituted in the Family Court by Ms D seeking the return of D. These proceedings were heard earlier this year and judgment has been reserved.
I have already mentioned that C was living with Ms L until 1996. In circumstances that are not entirely clear interim orders were made by consent by the Family Court at Parramatta in December of that year that C reside with her father. This was after Ms L had moved to Y. As previously indicated Ms L claims that her consent was a result of threats from Mr G. Final orders providing for residence with Mr W and contact with Ms L were made in the Family Court at Canberra on
1 December 1998.
Discussion
In deciding whether C should continue to reside with Ms C or whether she should reside with her mother I am required to regard her best interests as the paramount consideration. The Family Law Act in section 68B(2) sets out a series of matters that, if relevant, I must have regard to. I will now discuss the matters set out in that subsection with reference to the evidence in this case and my assessment of the parties. A number of the items set out in the subsection require a consideration of each parent but given the position with respect to Mr W I need not include him in the analysis.
The first matter I am required to consider is any wish expressed by the child.
Two reports were prepared by Ms Sue Connor, an expert appointed pursuant to Order 30A of the Family Law Rules. In interviews conducted with C in July, August and September 2000 C was reluctant to express a wish one way or the other. Her only clear preference was to the effect that she did not want to live with her father. She said that she would be both happy and sad if she stayed in Z or if she moved to Sydney. One reason she expressed for being sad if the decision was to move to Sydney was that she was settled in a school she liked. This is no longer an issue as she no longer attends this school. However I am unable to conclude that this was the only reason she did not express a clear wish to live with her mother. I conclude that C is ambivalent about where she wants to live and her wishes do not play a part in the decision I am required to make.
The next matter I am required to consider is the nature of the relationship of the child with each of the child’s parents and with other persons.
Ms Connor’s report makes it clear that C has a good relationship with both her mother and with Ms C. There is no basis for preferring one party over the other insofar as this criterion is concerned.
It appears from the report that C also has a good relationship with her half-siblings.
Whilst C has not met Mr H (I previously made an order preventing Ms C from taking her to the Q prison) she speaks to him on the telephone and writes to him. It appears that they have a good relationship. I will address the issue of whether or not this restriction should continue later in this judgment.
The next matter I must consider is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child, or other person, with whom she has been living.
If C remains living with Ms C I believe she will miss her mother. A provision whereby she had regular contact with Ms L would ameliorate, but not eliminate, this.
By the same token if she moves to Sydney I believe she would miss Ms C. She has now lived with Ms C for more than four years. She was aged 7 when she came to live with her and she is now almost 12. The same comment in relation to contact applies.
In the light of the uncertainty as regards the residence of K and D I do not propose to include them in my consideration of this aspect of the case.
Whilst the subsection does not expressly include them I propose to have regard under it to the fact that if C moved to Sydney she would live in the same household as her half siblings T and L. Ms Connor’s second report indicates a good relationship between C and those children. This is an important aspect of the case. In considering this I have had particular regard to the judgment of Nicholson CJ in H and H (1995) FLC 92-599 where His Honour refers to some of the literature dealing with the benefits in having a child live with his or her siblings.
I believe I must also have regard to the fact that if C moves to Sydney she will be residing in a family that consists of her natural mother in addition to these half-siblings. Section 60B of the Family Law Act sets out the object of the part of the Act dealing with children and the principles underlying those objects. That section in the main speaks of parents, not stepparents or carers. It states one of the objects of that part as being to ensure that children receive adequate and proper parenting to help them achieve their full potential and states that the principles underlying that object includes the principle that, except where it would be contrary to a child’s best interests, children have a right to know and be cared for by both their parents. I doubt that this section changes the position set out in Rice v Miller (1993) FLC 92-415 at page 80,240 to the effect that “the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the court commences its decision making process” but nevertheless, as was acknowledged in that case, the fact of parenthood is to be regarded as an important and significant factor in any case involving competing residence proposals between a parent and a non parent.
Also I propose under this part of subsection 68B(2) to consider the “status quo” issue in this case.
C has now been living with Ms C for some 4½ years. If a child is in a settled and satisfactory environment, a court should not alter that position except for good reasons. On the whole I am satisfied that Ms C has provided a satisfactory environment for C to live in. There was a time last year when the Police and the Department of Community Services became involved with Ms C. Reports tendered in evidence indicated that at that time the condition of Ms C’s house left much to be desired. She explained that this was a problem for a short period only when she was suffering a degree of depression. I accept this. The Order 30A report indicates that under her care C seems to be a happy well adjusted child with no emotional or behavioural concerns.
I acknowledge however that in some respects the status quo has changed in that the family unit comprising Ms C and C’s father no longer exists.
The next matter I am required to consider is the practical difficulty and expense of the child having contact with Ms L and whether that would substantially affect her right to maintain personal relations and direct contact with her mother on a regular basis.
There is a significant distance between Ms C and Ms L. This would make regular weekend contact between C and her mother impractical if C continued to reside with Ms C. This is a significant consideration in this case.
Nothwithstanding the fact that, if C were to continue to live with Ms C regular weekend contact would be impractical I believe that a close relationship between C and her mother, and her siblings, could continue to be maintained if personal contact occurring mainly during holidays were supplemented by regular telephone contact. The question posed is whether if C remained with Ms C I could be satisfied that such contact would occur. I will address this later in this judgment.
The next matter I am required to consider is the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs.
In my opinion Ms L has in the past failed to meet C’s needs in relation to stability and safety. The stability aspect relates to her frequent moves when C was in her care. The safety aspect relates to certain of her previous partners. I will address this aspect later in the judgment.
I have set out earlier in this judgment the history in relation to Ms L’s various residences. I need not repeat it. Suffice to say that by the time C came to stay with Mr W and Ms C she had made more than thirteen moves and had attended five different schools. It should be appreciated that she was only 7 at the time and would have only been attending school for only a couple of years.
I appreciate that since Ms L has obtained her present government housing she has maintained a stable residence. However at the January hearing she indicated that she proposed to move from that residence. Her proposals in relation to schooling in the event she did move were poorly thought out and I think it likely that her children living with her would have had to change schools yet again. Assuming for the moment that the government would pay to transport the children by bus or taxi to the A school (and in reality this would have to be by taxi as it is hard to imagine a school bus would travel the necessary route) the fact that she included in her choices of alternative residences places that would clearly preclude this indicates that the prospect of the children having to change school was contemplated by her.
Overall I believe that Ms L either does not have a proper appreciation of the possible impact that frequent changes of residence might have on children or, if she is aware of this, does not pay sufficient or any regard to the best interests of her children when making decisions as to where she will live. Despite her recent stability I am not satisfied that C would not again be subjected to more moves if she lived with her mother.
I appreciate that Ms C has recently moved. The reason given for this was that she was being harassed by neighbours. This is not dissimilar to the reasons that Ms L had advanced for her proposed move. She said that the reason she chose was to be closer to C’s father and D and K’s mother. I doubt that being closer to Mr W would have been a factor although being closer to Ms D may have been. I have little doubt however that the primary reason for choosing K is its proximity to Q.
It is unfortunate that, for whatever reason, Ms C has relocated from Z. Z provided the only stable residence C has ever known. Nevertheless there is nothing in Ms C’s history to indicate that a further move is likely.
I should indicate that the trouble with the neighbours commenced before the January hearing and I suspect the possibility of moving to K was contemplated at the time of the hearing. Nothing was said about any possibility Ms C might move. In addition it is not to her credit that she moved before she had advised anyone involved in the case, including the court.
The next matter I am required to consider is the child’s maturity, sex, background (including the need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Straight Islanders) and any other characteristics of the child that the court thinks are relevant. It appears from the evidence that C is part aboriginal but this was never an issue in the case. None of the other matters in this part of the subsection require discussion.
The next matter as set out in Section 68B(2)(g) concerns the need to protect the child from physical or psychological harm caused, or that might be caused, by being subjected to or exposed to violence, abuse or ill treatment. Subsection 68B(2)(i) also deals with violence and I propose to consider both these subsections together. This involves a consideration of the relationship between Ms C and Mr H on the one hand and the history of certain of Ms L’s previous partners on the other.
Ms C became acquainted with Mr H in April 2000. As previously mentioned he is an inmate of the Q prison. A relationship has since developed between him and Ms C to the extent that they plan to live together when this becomes possible. Mr H could become eligible for day release extending into weekend release from November 2002 and release on parole in November 2004.
Mr H’s incarceration relates to a number of offences committed in the early 1990s. It is unnecessary to describe them in detail. They are set out in Exhibit M3 being the judgment of the NSW Court of Criminal Appeal. They involved the sexual assault of three women, robbery and sexual assault of another and the abduction and assault of two other women. It is likely that the last of these did not involve sexual assaults only because the women managed to escape. Each of the incidents of sexual assault involved the abduction of a young woman and one or more of them involved, amongst other things:
·Handcuffing the victim.
·Threats with a knife.
·A clear indication that the victim would, at the end of her ordeal, be killed. This included in one case showing the victim a hole which Mr H said he had dug for her grave.
·A threat to mutilate the victim’s vagina with the knife, to bite off or cut off a nipple, to urinate in her mouth, to make her sit on a gear lever so as to have it inserted in her vagina and to commit or have her commit other indignities.
·Forcing the victim to masturbate him, masturbating infront of her, making her perform fellatio on him, inserting his finger in her vagina and making her do the same with her finger and forcing her to engage in penile/vaginal intercourse.
It can be seen that these offences were serious in the extreme.
It should also be noted that Mr H had previous convictions involving assaulting a woman with a knife, stealing, false pretences, stealing with violence whilst armed and assault occasioning actual bodily harm.
At his sentencing hearing before the District Court in 1996 evidence was given by a psychiatrist, Dr Delaforce. Dr Delaforce diagnosed Mr H as having a disorder called antisocial personality disorder. The essential feature of this condition is a pattern of disregard for and violation of the rights of others. It involves a very low tolerance to frustration, a lack of remorse and a tendency to rationalise one’s behavior. Dr Delaforce was pessimistic as to the prognosis. He said that the probability was that Mr H would re-offend. He said that treatment for the disorder would be ineffective although it might abate in the fourth decade of life. Mr H is now aged 32.
In the District Court Mr H was sentenced to twelve years imprisonment being a minimum term of nine years with an additional term of three years. The Crown appealed. The Court of Criminal Appeal allowed the appeal and set a total term of imprisonment of sixteen years with a minimum term of twelve years. I would imagine that it was only the application of the usual principles of judicial restraint in relation to Crown appeals that prevented a longer sentence. The sentence dated from 23 November 1992.
Ms C became acquainted with Mr H through a friend of hers who in turn had a friend in the Q prison. When they commenced their association, Mr H told her of the type of offences for which he was in prison. It would appear that his description was in general terms and did not involve disclosing all of the sexual assaults involved. Ms C did not inquire as to the details of his offences. It should be noted that in an affidavit sworn by Mr H in these proceedings, he provided no details of the offences and did not disclose all the incidents involved.
As indicated above Mr H swore an affidavit in these proceedings. He also gave oral evidence. In his affidavit he set out the courses he has done and the steps he has taken to rehabilitate himself. He gave the appearance of being an intelligent person and he gave his evidence in a straightforward manner. He did not give the impression of a person who would be prone to violence. He had a realistic attitude to his prospects of complete rehabilitation. He seemed genuine in his resolve to rehabilitate himself.
Under New South Wales law Mr H is classified as a serious offender. This means that issues concerning his release on parole will be considered by the Serious Offenders Review Council. This body will make a recommendation to the Parole Board concerning these matters and is required to treat the protection of the public as the paramount consideration when making this recommendation.
My impressions of Mr H were positive. However I am acutely aware of the dangers of making an assessment of the extent of his rehabilitation from simply seeing him in the witness box. I am conscious also of the opinions expressed by Dr Delaforce. However I believe I am entitled to assume that, given its statutory obligations, the Serious Offenders Review Council would not make a recommendation to the Parole Board without having a report by an expert. When that expert comes to prepare a report he or she will be in a better position than Dr Delaforce to assess the extent to which Mr H remains a threat to the public.
However the concerns I have in relation to any danger posed to C by any third person who might be involved in her life are not confined to Mr H. I have earlier set out the partners of Ms L who had a criminal history. It will be recalled that one of these, Mr D, was violent towards Ms L, another, Mr G used threats of violence to cause her to commit a robbery and a third, Mr P had a “bad temper” such that she was not prepared to enquire as to his past and is suspected by Ms L of sexually abusing C.
This history causes me grave concern. It is not only what we know of these partners but also what we do not know. Mr P had been in prison and it seems likely that Mr D had been in prison also. This is not necessarily a problem. The problem is that Ms L did not know what offences were involved. When I balance the risk posed to C by Mr H, I am unable to conclude that it is greater than the risk that might be posed to her by a person with whom Ms L might form a relationship in the future. Indeed I believe the risk is probably less. Mr H at least is “the devil we know” and it is most unlikely that he will be released on parole prior to the expiry of his head sentence in 2008 unless an appropriate expert has made an evaluation of the risks involved. I cannot trust Ms L to make a proper assessment as to the risks involved to C from persons with whom she might form a relationship.
The next matter I am required to consider is the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents. I will not read this subsection literally and will read the term “responsibilities of parenthood” as encompassing the responsibilities of a step parent.
I have already commented on Ms L’s shortcomings in relation to providing C with a stable and safe upbringing when she was in her care. I will not repeat these matters.
I am critical of Ms L in relation to her actions in not returning C to Z in July 2000. In an affidavit filed on 6 November 2000 she set out the circumstances under which she came to make this decision. She said that when she learnt that Mr W and Ms C had separated she decided not to return C and filed an application for residence in the B Local Court on 12 July. She said that on the same day Mr W came to collect C and she refused to hand her over. The affidavit goes on as follows:
“After 12 July I thought I would hear further from the applicant about arrangements for C including what he proposed for her. I didn’t hear from him and I enrolled C to start school in term 3.
A few days into the school term C was removed from my care by the Australian Federal Police.”
This part of the affidavit represents a gross distortion of the facts. It might be true in a literal sense that she did not hear from Mr W after 12 July but she did hear from his solicitor who spoke to her by telephone and made it clear that C’s return was being sought and that if she were not returned a recovery order would be sought. She was also personally served with an order made by me that she return C.
The reality is that Ms L simply ignored the order that she return C and created a situation whereby the only course open to the court was the issue of a recovery order. A situation whereby a child is taken from a parent by police is most undesirable. Ms L had been warned that this would occur and did nothing. Her actions in this respect are to be deprecated.
An issue that needs to be addressed under this subsection is the attitude of Ms C to the need for C to continue a relationship with her mother. Part of the mother’s case is that Ms C has been obstructive in relation to contact between her and C.
The orders made by the Family Court on 1 December 1998 provided that Ms L have contact with C during the Easter, June/July and Christmas school holidays. These orders were made when Ms L was living in Y.
Contact did not occur during the Easter holidays in 2000. I am not satisfied that there was a proper reason for this but it was not Ms C’s role to make decisions about these matters at that time so I do not visit the consequences of refusal to permit contact at this time on her.
When both Ms L and Ms C were in Canberra with Ms Connor for the purpose of preparing the O.30A report, Ms L sought Ms C’s consent to have some contact with C during the September/October holidays. Ms C declined to consent, saying that it was “her turn” although later on the advice of her solicitor she did permit some contact. This attitude is to be deprecated. It is true that the Family Court orders did not provide for contact during these holidays and that C had been with Ms L for the whole of the previous holidays. Nevertheless she had not had C at Easter and the September/October holidays in that year were longer than usual.
One of the reasons that an application was made to re-open the case in May concerned allegations that Ms C was being obstructive in relation to telephone contact. If this were the case it would indicate a shortcoming insofar as her attitude to this part of her responsibilities is concerned. Ms C denied these allegations and I am unable to conclude that she had been obstructive in the way alleged.
It seems clear that Ms C has a poor opinion of Ms L but I do not find that she has communicated this to C and I am satisfied that she would co-operate in any regime of contact I might order.
The next matter that I am to have regard to is whether it would be preferable to make an order that would be least likely to lead to further proceedings. I do not believe that an order that C reside with her mother would be more likely to lead to further proceedings than an order that she reside with Ms C or vice versa.
The final matter I am required to take into account is any other fact or circumstance that the court thinks is relevant. Under this heading I note that Ms Connor concluded her report by saying that she recommended that C remain in Z with Ms C. However I treat this recommendation with some caution. Ms C no longer lives in Z and Ms Connor was not aware of the details in relation to Mr H.
I also take account of my impressions of the parties. I do not propose to go into detail especially where I could not be sure that any comment I might make might not be relayed to C. While there are significant deficiencies insofar as each of the parties is concerned overall I felt that Ms C exhibited a more responsible “parental” attitude than Ms L and I would feel more confident that C’s needs would be better met if she continued to live with Ms C.
Conclusion
While this is by no means a clear cut case I believe C should remain living with Ms C. Whilst all the matters set out above have played a part there are four main reasons for reaching this decision. These are
a)The fact that C has been cared for by Ms C for more than four years and, although the standard of that care has not always been ideal, in the context of this case it has been satisfactory.
b)The fact that since joining Ms C’s household C has enjoyed a much more stable environment than she experienced in her mother’s household. As previously indicated I am not satisfied that that this stability would continue if she lived with her mother.
c)The fact that, notwithstanding the concerns I have about Mr H, I believe C would be more at risk in her mother’s household than in that of Ms C.
d)My assessment of the parties as referred to in paragraph 66.
The case for changing C’s residence was a strong one. The main factor that would favour such a course is that it would re-unite her with two of her siblings. However on balance I believe that C’s best interests are served by having her continue to live with Ms C.
I now turn to issues concerning contact. I believe that some weekend contact would be appropriate notwithstanding the distance between the parties. I propose to order that this occur one each school term. In most cases where a child resides with a parent school holidays are shared equally. I do not see why this should necessarily apply where a child resides with a step parent, particularly where there are siblings involved. I propose to provide for holiday contact which extends beyond one half of the holidays.
To date the parties have effected a changeover at P. This is about half way between A and Z. The nearest town to halfway between the parties now would probably be Z. However it was Ms C who moved further away from C’s mother, not the other way around. In these circumstances I propose the changeover be at F which, although it is a little further from A than P, ensures that the inconvenience occasioned by Ms C’s move is mainly bourn by her.
The present arrangement is for telephone contact to occur on Mondays at 6pm. I will continue this arrangement.
I point out that if in the future a decision is made that Mr W have contact with C these orders will need to be revisited to take that into account.
The final matter concerns the prohibition in place on C being taken to the Q prison to visit Mr H. I made an order preventing this for two reasons. These were
a)I had not had an opportunity to make any assessment of Mr H.
b)The applications by Mr W that C live with him and by Ms L that C live with her were pending and both these parties opposed C visiting Mr H.
The orders that I will make mean that, unless some change occurs in the future, C will now be living permanently with Ms C. Mr H is, for better or for worse, a part of Ms C’s life. In these circumstances I do not propose to continue the prohibition on C being brought into contact with him.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Federal Magistrate Brewster
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