W and M
[2006] FMCAfam 385
•6 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & M | [2006] FMCAfam 385 |
| FAMILY LAW – Interim hearing – change in living arrangements sought – child’s emotional wellbeing at risk – parent’s ability to maintain a relationship with children – children’s wishes – children’s relationships with their siblings – separating children from other siblings – change in schooling – best interests of children – change in living arrangements ordered. |
| Family Law Act 1975, s.60CC Federal Magistrates Act 1999, s.39 |
| Cowling & Cowling (1998) FLC 92-801 |
| Applicant: | TJW |
| Respondent: | GMM |
| File number: | CAM 390 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing date: | 5 July 2006 |
| Delivered at: | Canberra |
| Delivered on: | 6 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Godtschalk |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Advocate for the Respondent: | Ms J Lloyd |
| Solicitors for the Respondent: | Jeanine Lloyd & Associates |
| Independent Children’s Lawyer: | Ms R Curran |
ORDERS
IT IS ORDERED UNTIL FURTHER ORDER THAT:
The Orders dated 31 May 2004 for the children, AM born January 1993 and EM born October 1994 be discharged.
The children AM and EM shall live with their mother in the U region of New South Wales.
The children AM and EM shall spend time with and communicate with their father as follows:
(3.1)Each alternate weekend from after school on Friday until Sunday at 5.00pm (or Monday 5.00pm if there is a long weekend in New South Wales falling on the father’s weekend) with the parents to share the driving commencing Friday, 28 July 2006;
(3.2)For one half of all NSW school holiday periods with the father’s period to coincide as far as possible with school holiday periods to enable the children to have contact with their sibling MM;
(3.3)Or such other times as agreed between the parties;
(3.4)By telephone each Monday, Wednesday and Sunday or other days as agreed between 5.30pm and 6.30pm by the father telephoning the mother’s landline, and at any reasonable time the children wish to telephone the father or their sister MM;
(3.5)When the children are in the care of their father, they are at liberty to speak to the mother at the same times as set out in Order 3.4 above.
Ms Luise Lang, family consultant attend upon the children AM and EM today, 6 July 2006 at 3.15pm to explain the nature and effect of the Orders. The children are to spend time with and communicate with their mother from after that conference with Ms Lang until 5.00pm on Tuesday, 11 July 2006; with the mother delivering the children to the father’s resident at that time.
The children spend time with and communicate with their father from 5.00pm on 11 July 2006 until 5.00pm on 15 July 2006. The father will return the children to the mother at her parents’ address at the U region in New South Wales.
Both parties are to keep the other advised at all times of their residential addresses and landline telephone numbers and home email addresses.
Neither party is to denigrate the other or permit any member of the household to denigrate the other party.
Neither party is to discuss the proceedings with the children.
The children are to be interviewed by Luise Lang at the end of Term 3 for the purposes of preparation of an updated report regarding the children’s welfare and any recommendations.
The parties are to facilitate any counselling recommended by Luise Lang in respect of themselves or the children.
The mother is to advise the father of school enrolments and extra-curricular activities of the children and will sign all documents necessary to authorise the school to forward all school reports or other information to the father.
Pursuant to section 39(1) of the Federal Magistrates Act 1999 this matter be transferred to the Family Court of Australia.
AND IT IS NOTED THAT:
The children shall live with the mother for the first half of the long summer school holidays in each even-numbered year.
In the event that the mother resumes residence in Canberra, the parties shall review the above arrangements.
The mother and independent child lawyer consent to this matter being transferred to the Children’s Cases Program. The father is to provide his instructions in respect of that possible transfer.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 390 of 2005
| TJM |
Applicant
And
| GMM |
Respondent
REASONS FOR JUDGMENT
Background
This is an ex tempore judgment which has been revised and edited from the transcript.
The parties have three children. The eldest is MM who was born August 1991 and is almost 15. Next is AM born January 1993 who is 13, and the youngest is EM October 1994 who is almost 12. These proceedings only concern the two younger children, AM and EM.
The parents were married in November 1989 and separated in 1999. The care arrangements for the children are accurately summarised in the Family Consultant, Ms Lang’s first report of 26 June 2006:
After the separation in 1999, AM and EM together with their sister, MM resided with their parents on a shared care basis until 2004. A change in residence occurred when GMM sought a Recovery Order after TJW relocated with the younger children to Melbourne. Consent orders were made in May 2004 for the children to live with their father in Canberra and for AM and EM to spend time with their mother during school holiday periods, most long weekends, approximately two weekends per school term [plus phone contact.]
The mother has resided in Melbourne for the last four years. She is now proposing to buy a business with her fiancée in the U region in New South Wales which is approximately two and a half hours from Canberra.
The application
The mother by application filed on 15 May 2006 seeks a change in the living arrangements for AM and EM, both on a final and interim basis. On the interim basis she wants them to live with her.
The affidavit evidence that I have before me is untested. There are many allegations, denials and counter allegations. The mother asserts that EM is miserable with the father and wishes to live with her. AM is less certain. She does not want to upset the father, she wants the mother to come to live in Canberra and wants shared care.
The mother also testifies that the father does not promote the relationship with her, that in fact he positively obstructs it and discourages contact. The father denies this. He also points to the attachment the two girls have to their elder sister, MM.
I am not able to make findings of fact on this untested evidence.
The family reports
The mother’s allegations however find support in two reports of Ms Luise Lang, the Family Consultant. I regard these reports as so important that I will quote from them in some length. In the first report dated 26 June 2006, Ms Lang said:
Summary and Recommendations
· I understand the relationship for GMM and TJW has been a particularly difficult one for many years. Regardless, I am somewhat alarmed by GMM’s overly negative attitude towards TJW and the impact on the children. It would appear that the atmosphere in GMM’s household allows for MM to refer to her mother as a “cow”. I am further alarmed by GMM’s limited capacity to appreciate the impact of the parental conflict on the children and, further, to appreciate the importance of their relationship with their mother. I am particularly concerned about EM’s emotional well-being. If the current situation remains unchanged, her level of anxiety will increase and will impact on her overall functioning if this is not already the case. It is destructive for the girls to experience such pressure in order to maintain a relationship with their mother. A strategy for children to reduce the pressure of parental conflict is alignment with one parent and rejection of the other. There are already early signs of AM aligning herself with her father and older sister.
· In light of the children having the opportunity to maintain a loving relationship with each parent, it might best be achieved if they lived with their mother. It would appear that TJW is more aware of the need to facilitate the girls’ relationship with the other parent. I acknowledge that splitting siblings is seldom recommended and I am mindful that AM in particular has a close relationship with her eldest sibling MM and a good relationship with other members in her father’s household. However, I am concerned for EM’s emotional well being and for both girls’ ability to maintain a relationship with their mother should the current living arrangements continue. If TJW were to relocate to Canberra and an equal shared parenting arrangement were to be considered, I am not convinced that it would be workable unless there was a marked change in the parenting relationship. A duel parenting arrangement best meets the needs of the children providing there is a flexibility to accommodate their needs and providing the parents are able to co-operatively share information about their children.
· Given the difficult nature of the parenting relationship, it might benefit GMM and TJW to attend a post separation parenting program to better understand the impact of parental conflict on children and to develop improved co-parenting strategies.
· Considering the ongoing pressure experienced by the children, they might benefit from professional assistance. It appears EM found counselling helpful. She might feel supported from further counselling until the Court dispute is finalised. Given AM’s reserved nature, she is likely to find counselling confronting, and might better benefit from a less formal program such as a group program for children with separated parents.
· The counselling and group programs are offered by Relationships Australia in both Canberra and Melbourne.
The second report of 4 July 2006 says:
Evaluation and Recommendations
…
4.2 In regards to AM, it appears she copes with the parental conflict by more-or-less aligning herself with the parent present at the time. For example, I understand that when she is in her mother’s care, she displays reluctance to return to her father. Similarly, when in her father’s care, I understand she is resistant to taking a phone call from her mother. There is little doubt that her effort to maintain loyalty to each parent creates much conflict and confusion for her. It is understandable that AM is reluctant or unable to express her views.
4.3 With respect to EM, it would appear that she has had a desperate need to be in her mother’s care for some time. Simultaneously, she loves her father and her distress at the prospect of hurting or disappointing him manifests as extreme.
4.4 As I indicated in my report dated 26/6/06, it is unusual to recommend that siblings be separated. I, however remain concerned for EM. I am concerned that her level of desperation and anxiety might accelerate if she is prevented from living with her mother. GMM has had the responsibility of the children’s primary care for some years. The responsibility includes facilitation of the childs’ relationship with their mother. I remained concerned that there appears to have been a degree of hardship for the girls to enjoy a relationship with their mother unhindered. In regards to MM, she is alienated from TJW. There might be little prospect of her renewing her relationship with her mother until she reaches adulthood and develops a change of perspective.
4.5 I remain inclined to recommend that EM live with her mother. The prospect that TJW might move closer to Canberra would offer EM the opportunity of substantial time with her father and members of his household. In regards to AM it would appear that she is reluctant to be separated from her younger sister. There is little doubt that she is also reluctant to be separated from MM and her father, not to mention other members of her father’s household. If AM were to remain living with her father, and EM with the mother, I am concerned that the arrangement might cause a rift in the sibling relationship and perhaps a growing rift in AM’s relationship with her mother in view of the pressure of the parental conflict. My impression of TJW supported by comments from EM and AM is that she might better facilitate the girls’ relationship with the absent parent. If this were the case, my recommendation would remain that both girls live with the mother.
Conclusions
The test for interim matters set out in Cowling & Cowling (1998) FLC 92-801 is accurately reflected in the headnote:
In determining an interim residence application, the best interests of the child are the paramount consideration. These interests will normally be best met by ensuring stability in the child’s life pending a full hearing of all relevant issues. Where at the date of the hearing the child is well settled in his environment, that stability will usually be promoted by an order providing for a continuation of that arrangement, unless there are overriding indications relevant to the child’s welfare to the contrary, such overriding indications would include convincing proof that the child’s welfare would be really endangered by the child remaining in that environment.
Last evening and this morning I read carefully through the affidavits again, in addition to the two reports of Ms Lang. I am well satisfied from Ms Lang’s report that EM’s emotional wellbeing is at real risk if she continues to live with her father. She is suffering from extreme anxiety in that environment.
I was also satisfied until I had new information brought to my attention this morning that it would not be in the best interests to separate the two younger girls. Before I return to this I want to refer again to comments of Ms Lang in her two recent reports.
After mentioning her concern about EM’s emotional wellbeing Ms Lang highlights the destructive pressure placed on the girls in trying to maintain a relationship with their mother. As a consequence children adopt a strategy of trying to reduce that pressure by aligning with one parent or the other. In Ms Lang’s view there are already early signs of AM aligning herself with her father and older sister. This seems to be borne out in a number of matters that to some extent are untested but for which Ms Lang provides corroborating evidence, in particular the difficulty the mother has in telephone conversations with AM.
Ms Lang returns to that theme in her second report at [4.2] where she says:
4.2 In regards to AM, it appears she copes with the parental conflict by more-or-less aligning herself with the parent present at the time…when she is in her mother’s care, she displays reluctance to return to her father [and vice versa.]
It seems strange to me, and I can only speculate on this, that on the very cusp of my giving a decision after having reserved over night, AM, without seeing Ms Lang or the independent children’s lawyer again, contacts the independent children’s lawyer and expresses adamant views that she wishes to remain with the father. This is the information conveyed to me by the independent children’s lawyer this morning.
But it follows AM having expressed ambivalent views on a number of occasions in the past to both the independent children’s lawyer and to Ms Lang. In these circumstances I can not be satisfied that this is an accurate reflection of her views, although I do not doubt that she told the independent children’s lawyer that they were.
I believe that AM’s best interests, pending a further hearing, are to remain with EM and that they should not be separated. I am aware of the importance of children’s relationships with their siblings. I am particularly conscious also of AM’s relationship with MM and that normally it would be undesirable to separate the children from their elder sibling.
I am also conscious that what I propose will result in a further change in schooling, but I note the children have already apparently changed schools a number of times in the last few years. For example, an attachment to the mother’s affidavit filed on 15 May 2006 says that MM spent about two weeks at one school and then had her school changed again recently.
Notwithstanding that this does involve a further change in living arrangements, in view of Ms Lang’s evidence and noting that she corroborates some of the evidence of the mother, I am of the view that it is in the best interests of the children for this change to occur. The independent children’s lawyer yesterday submitted that it was the best course. She does not in substance change her recommendation to me today, notwithstanding the telephone conversation she had with AM earlier before court.
It accords with EM’s clear and strongly expressed wishes. In my view, having regard to Ms Lang’s report, she is otherwise at risk. The change will clearly reduce the stress for EM. On the untested evidence before me, it is more likely that the mother will promote a relationship with the father than it appears the father is prepared to promote with the mother.
I am satisfied that a change in living arrangements pending the final hearing is in the best interests of the two children. I have reached this view having regard to the factors in section 60CC of the Family Law Act 1975 which the Court is bound to consider in determining the children’s best interests. I note the injunction in section 60CC(2)(b) “to protect the child from … psychological harm”.
I make the orders set out at the commencement of these reasons.
I certify that the preceding twenty-three paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Beau Wilson
Date: 8 September 2006
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