W and W - [2002] FMCAfam 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2002] FMCAfam 46

FAMILY LAW – Children – residence – wishes of the child.

Applicant:

M W

Respondent:

R A W

File No:

ZC 2910 of 2001

Delivered on:

18 January 2002

Delivered at:

Canberra

Hearing Dates:

17 & 18 January 2002

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:

Ms Burgess

Solicitors for the Applicant:

Legal Aid Office (ACT), 4 Mort Street,
Canberra City ACT 2601

Counsel for the Respondent:

Ms Simpson

Solicitors for the Respondent:

Creaghe Lisle, St Georges Court, 52-54
Gurwood Street, Wagga Wagga NSW 2650

ORDERS

That the child, C S W, born 1 March 1989, reside with her mother;
That the mother have the responsibility for the day-to-day care, welfare and development of the child;
That the child have contact with the father as follows:
(a)For the first half of each mid year school holiday period;
(b)For the first three weeks of the Christmas holiday period commencing in odd numbered years, and the last three weeks of the Christmas holiday period commencing in even numbered years;
(c)Telephone contact on any day between 6pm and 8pm.
That the parties share equally in the cost of travel for the purpose of contact and to this end, the mother pay for the cost of travel from the father's residence at the conclusion, of each contact period and that the father to pay all travel costs from the mother's residence at the commencement of each contact period.
The parties shall inform the other of any accidents or medical emergency relating to the child as soon as practicable.
That the mother provide the father with copies of all school reports in relation to the child.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

ZC 2910 of 2001

M W

Applicant

And

R A W

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the residence of a child, C S W. C was born on
1 March 1989, and is therefore almost 13 years of age.

Background

The father and mother married on 31 July 1983. There are two other children in the marriage apart from C. They are B, who was born on
2 April 1983, and is therefore 18 years of age, going on 19; and J, who was born 20 December 1984, and is therefore aged 17. The mother has a daughter from a previous relationship – J R – who is 22 years of age.
The parties separated in May 1996. There was litigation between them concerning the residence of the children. A family report which was prepared at the time indicates that B and J both expressed a wish to live with the father – that being particularly the case in relation to B, and that C did not express a wish one way or the other. The upshot in any event was that consent orders were made on 20 February 1997 that all children would reside with the father.
It appears that, when the orders were agreed to, both the parties lived in W, but that it was anticipated that the mother might move away. That move eventuated and it would appear that by the time the orders were actually taken out, she had moved to B in Queensland.
The orders provided for holiday contact, and all three children travelled to Queensland for that purpose until 1999. After this B and J ceased coming to Queensland and such contact as has occurred between them and the mother has been limited to occasions when the mother has been in W. C however has continued to go to Queensland for holiday contact.
The father has re-married. His present wife, J W, has two children of a previous marriage or relationship. They are S, whose date of birth does not appear to be in evidence but as the father says she is one year older than C, therefore would be aged 13 or 14; and another daughter, S, aged nine.
The future of the relationship between the father and his present wife is somewhat uncertain. The counsellor who prepared the Family Report reports that Mrs J W was considering leaving because of the stresses associated with this litigation and all that is implied in it. Mrs W herself said in evidence that this would only be the case if problems occurred, such as occurred in October and November this year, which I will relate later in this judgment.
The mother’s contact with the children has not always gone smoothly, to put it mildly. Problems commenced in January 1998 when the mother failed to return B from contact. It appears this was based on a wish expressed at the time by B to live with the mother. The upshot was that the Family Court made an order that the mother return B to the father.
In July 1999 the mother failed to return C from contact, again based it seems, on a wish expressed by C. Orders were made that the mother return C to the father. The mother failed to do so. A recovery order issued. That order was made on 16 July 1999, but its operation was stayed until 19 July, to give the mother the opportunity to return C. The mother did not return C. It was necessary for the recovery to be executed, and the police to take her. As a result of that incident a contravention application was filed by the father and the mother was ordered to enter into a recognizance to abide by the terms of the court order.
The next problem occurred in July 2001 when the mother again failed to return C. On this occasion she went into hiding, staying at a women's refuge in Brisbane. Again orders were made for C’s return and it appears that she was returned without a recovery order having to be executed. As a result of this, another contravention application was brought, and the mother was sentenced to two weeks imprisonment, which sentence was suspended on her entering a further recognizance.
The period between C’s return and the following holidays was not entirely free of incident. C attended the Department of Community Services in W, unbeknown to the father, although apparently with the connivance of the mother via her sister.
The next holidays were in October 2001, and C again went to contact in Queensland. She was due to return on 14 October, and on this occasion the mother put her on a bus in B. However, she apparently got off the bus in Brisbane, contacted the Salvation Army, who in turn contacted the police, who in turn contacted the mother. The mother travelled to Brisbane and collected C and went to stay at her daughter J's home. J lives in C near Brisbane. They apparently remained at this home for a time. On 19 October the mother again put C on a bus, this time leaving from Brisbane. She and J had arranged to go to the RSL Club in C that same evening. It was apparent that C was aware of this, because that night she turned up at the club. She apparently got off the bus at T, caught a bus back to Brisbane, and then a train to C.
On 26 October, C was again put on a bus at B. Again she got off in Brisbane, and again took a train to C, where she went to J's house. That incident appears to have been perhaps associated with illness on the part of C. In any event J put her on a bus the following day. This time she did not get off, and returned to W.
On 30 October however C caught a bus in W and travelled to Queensland. For this purpose she stole money from her brother. She arrived in Bundaberg on 1 November. Arrangements were made to return her by air. Her mother took her to the airport at B on
4 November. Her mother however left prior to the departure of the aircraft, and C did not get on that aircraft. That was the last of the efforts made to effect her return to W. She continued to remain in Queensland after that, and was enrolled in a school in B. She did go to W for contact with the father, by arrangement between the parties, from 21 December to 8 January.

Discussion

The Family Law Act requires that, in making a decision as to where C should reside, I should regard her best interests as the paramount consideration. The father gave evidence that C's presence in his household is good for the family dynamics involving her siblings and her step-siblings – S and S – that it makes for a happier household for that family. I understand this. I understand that the father would want to have C live with them for this purpose. I do not suggest that is the only reason he wants C to live with him. However, whilst this is not irrelevant, it can only play a subordinate role in my decision. It is C's best interests, and not those of other members of the family, that I must regard as the paramount consideration.
In determining what is in C's best interests, the Family Law Act in section 68F(2) sets out a number of matters that I have to have regard to. I will discuss each of those.
The first matter concerns any wishes expressed by the child and any factors, such as the child's maturity or level of understanding, that I think relevant to the weight that I should give to those wishes.
C was interviewed by Ms Daphne Dawson, a counsellor of the Family Court, who has prepared a family report in this matter. Ms Dawson reported that C was adamant that she wished to reside with her mother. All her responses led to this conclusion. C was interviewed twice, once after she had been with her mother, and again after she had spent some time with her father. I interpolate not a great deal of time, it would appear on the evidence. She admitted she loves all the members of her family, and even got on well with Mrs J W at times. Nevertheless it was her wish to reside with her father.
The reasons given for this wish have been somewhat inconsistent. When C spoke to her mother after getting off the bus in October, she gave her reasons for getting off the bus and not returning to Brisbane as, firstly, she had been sexually abused, secondly that her step-sister S was “into drugs” and thirdly that she did not like her stepmother.
The allegation of sexual abuse has not been fleshed out in these proceedings, but it appears to involve the partner of C's maternal grandmother. C did not mention this to Ms Dawson as a reason for not wanting to live at her father's place. I am forced to conclude this reason is something in the nature as a rationalisation on the part of C as to why she should live with her mother.
In relation to the second of these reasons, there is no clear evidence as to what this is about. Again it appears that this complaint was not explicitly made to Ms Dawson.
As far as the third matter – the relationship with C's stepmother – is concerned, I am satisfied that there are some problems with this relationship, but I am not satisfied those problems are serious. I think it more likely that this reason is also in the nature of a rationalisation.
The reasons that C gave to Ms Dawson for wanting to reside with her mother were all positive concerning her mother and how she loved her mother.
I accept Ms Dawson's assessment in this matter. I am satisfied that C’s wish is a genuine wish. There is no cogent evidence that this wish is a result of manipulation by the mother. The strength of those wishes is illustrated by the events of October 2001. I will return to the significance of this in due course.
It has been suggested that these wishes may have modified, or at least there may be some ambivalence on C’s part and an acceptance by C that she should not “vote with her feet” if an order was made that she return to her father.
There is conflicting evidence about whether her wishes have been modified. No arrangements were made for her to be re-interviewed by Ms Dawson. In the circumstances I prefer to rely on the report by Ms Dawson. I am not sure that the statements made to other people were not either made because those people would want to hear such reports, or that they are necessarily more than transitory, that is statement of a transitory intention, which might change if circumstances change.
The second matter that 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. I am satisfied that C has a good relationship with both her parents. I am satisfied that her wish to reside with her mother is not related to any breakdown of the relationship with her father. I am satisfied from reading the Family Report that she has a good relationship with her brother J and a close relationship with her sister, B.
According to the father, she also has a good relationship with S and S. There is no external or independent evidence supporting this and, according to the mother, C has, as I have related before, indicated problems in relation to S. The evidence does not permit a firm finding in relation to this. The evidence from the Family Report is that there are problems with C's relationship with her stepmother. I have already quoted the section of the Report which says that C said that she got on well with Ms J W “at times”. I repeat that, notwithstanding that I believe there are some problems in that relationship I do not accept that these are serious problems.
It also appears that C gets on well with her half-sister, J.
Subsection (c) of section 68F(2) requires me to consider 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 any other child, or other person, with whom he or she has been living.
If an order is made that C reside with the mother she will be separated from her father and her siblings, B and J. It is clear from the evidence she is close to B and I accept she has a good relationship with J.
However, this needs to be looked at in context. Two things are relevant here. The first is that both B and J have left school. B is 18. Whether they will continue to live in the father's household in the longer term must be a matter of speculation. However, I am prepared to assume that it is likely that they will remain in W and that if C were to live with her father she would see a good deal of her siblings. This is a significant factor. It is prima facie for the benefit of any child that he or she should see as much as possible of his or her siblings and have a close relationship with those siblings. The second is that C, when interviewed by Mrs Dawson, had been living apart from her siblings for some time and expressed a wish which would inevitably mean a separation from those siblings.
If C was to live with her mother, she would be separated from her father and I am satisfied she has a good relationship with her father. Also of significance is the fact that she lived with her father from 1996 until October of 2001, some five years. That is a significant status quo. It would require significant and substantial reasons, to alter it. If an order is made that C reside with her father, she will be separated from her mother and I have some concerns about this and the impact it may have. I believe that at the moment she is probably closer to her mother than her father. I will return to this, which is inextricably linked up with her wishes, in due course.
Subsection (d) of section 68F(2) requires me to consider the practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relationships, relations, and direct contact with both parents on a regular basis. This is a factor in this case in that the parties are separated by a substantial distance. However it cuts both ways. No matter who C resides with, there will be difficulty and expense in relation to contact, and contact can only occur in school holidays.
If I accede to the father's application, which is that the mother accompany C to W at the conclusion of contact, the expense involved in contact would be increased. Nevertheless, I am not prepared to conclude that that increase in expense would actually prevent contact occurring during school holidays. I do not believe that subsection (d) is a factor which weighs in either direction.
Subsection (e) requires me to consider the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs. I believe both parents have an adequate capacity to do these things. However, I have criticisms of the mother which I will deal with later which in part relate to this aspect of the case.
Subsection (f) requires me to consider the child's maturity, sex and background. It goes on to speak of Aboriginal people and requires me to consider any other characteristic of the child that I think is relevant. I do not believe this has any significance in this case.
Subsection (g) deals with issues of violence, as also do subsections (i) and (j). This is also not relevant in the present case.
Subsection (h) requires me to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. I have a number of criticisms of the mother in this respect. They are not set out in any order of magnitude. The first is that during the various incidents of October and November of 2001, the mother showed a marked reluctance to keep the father informed of developments of where C was. At times, she was positively evasive in this respect. This is to be deprecated.
I have already mentioned allegations of sexual abuse. It appears that C raised these allegations whilst on contact with the mother in October. I am satisfied that the mother did not inform the father of these and indeed had the child travel back to W without the father knowing anything of these allegations. This is a serious dereliction of her responsibilities as a parent.
As well as being evasive in relation to C's whereabouts in October and November, the mother has been less than forthcoming in relation to disclosing her address over a significant period of time prior to October and November.
The mother has inappropriately involved C in the issues between her (the mother) and the father. In October and November the mother took C to various organisations. I will not detail them all but they included the Legal Aid Offices in Brisbane and in B and the Department of Youth and Community Services in C and in B. These were said to be at C's request. She also, it appears, connived in having C go to the Department of Community Services in W. These actions were, in my opinion, quite inappropriate. The issues between the parties in this case are adult issues. They should concern the adults and the child should not have been involved in this way. Moreover, the child should not have been empowered in this way. The mother is rightly criticised by counsel for the father for simply taking the attitude that whatever C wants, C can get. Another example of this is that when C expressed a wish to come to court at the time of the hearing of this case to be with her grandmother, who would be waiting outside prior to giving evidence, the mother acceded to that request. In fairness the mother conceded that it was inappropriate. However it is of concern that she allowed C to come to court.
In 1998, as I have indicated, the mother failed to return B from contact and in 1999 and July 2001, July 2001she failed to return C. She went into hiding at times. It appears she made no real attempt to comply with the court orders. It took the Damoclean sword of a period of imprisonment hanging over her head to get her to attempt to comply with court orders. This is a very serious failure to act as a responsible parent.
The mother has also made comments critical of J W in the presence of C. This relates to an incident during the most recent contact period in W when the mother was in W and had an altercation with J W. She then spoke in derogatory terms of Ms W to the father when C was present. To some degree this can be excused as a loss of self-control in circumstances where J W had also behaved inappropriately. Nevertheless, that sort of conduct is to be deprecated.
The father himself is not free of criticism. I have mentioned the mother bringing C to court. Yesterday B was in court, listening to the cross-examination of her mother. In my view, that showed an inappropriate attitude on the part of the father towards his responsibilities as a parent. It was unwise and inappropriate to involve B, albeit that she is 18 years of age, in this litigation. It should have been foreseen as possible, if not probable that B, who has a close relationship with her sister and who, according to the Family Report has been trying to persuade her to change her mind, might well relate to C the details of the cross-examination of her mother.

I also initially was critical of the father for filing an application that the mother be dealt with for breach of the court orders in respect of the occurrences of October and November 2001. On 14 January this year, he filed such an application, but it was withdrawn at the outset of this case. I have no idea why it was ever filed or what it was thought it might have achieved. If it had proceeded it would have had to have been heard before the residence application and this may well have meant that the residence case could not have been concluded in the time available to hear it. I assumed that the reason for bringing the application was to have the mother sent to prison irrespective of the result of the residence case and that its purpose was for the father to avenge what he may have perceived as wrongs done to him. The father however denied that this was his motive and said that the application was recommended by his solicitor. On reflection, I am not prepared to visit my criticisms on the father who may have been the innocent victim of a misconceived action on the part of his lawyer.
Subsection (k) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. This is an aspect of this case that causes me concern. If C lives with her father, it is possible that she may run away as she did before, or she may again attempt to thwart being returned. Admittedly, if I made orders as sought by the father, it would be more difficult for her to thwart a return, but it still might be possible. In any event, it would be difficult to stop her running away. This would inevitably result in further litigation and that cannot be in anyone's interests and particularly not C's.
If I could rely with confidence on what she is said to have told the father, stepmother and a friend in relation to accepting my decision and not attempting to subvert it, then my mind would be at ease. However I am not confident that those reported comments were necessarily genuine, or were set in stone such that she would not, at some later stage, change her mind.
It is suggested that the mother may not facilitate further contact. This arises out of a comment she made to Ms Dawson, that she would not force C to go on contact. If there were problems in relation to future contact, then there could be further litigation too and this would be inimical to C's best interests. However, I have some confidence that C will not require to be forced to go to see her father with whom she has a good relationship and so the issue is most unlikely to arise.
It is possible that if C goes to live with her mother, she may find that the advantages she perceives in this are illusory and she may change her mind and wish to return to live with her father. The mother says that, in this situation, she would agree to this occurring and I am satisfied this is genuine. I think the order that would be least likely to lead to further litigation would be one which provided for C to reside with her mother.
Section 68F(2)(l) requires me to consider any other fact or circumstance I think relevant. I will briefly traverse some of these.
Both parents, I am satisfied, can offer satisfactory accommodation for the child and I am satisfied that both will ensure that the child attends school and achieves to the best of her ability. In this respect I believe that the father's fears as expressed to Ms Dawson in the family report are not properly founded.
I am satisfied that both parties would comply with contact orders.
Although the mother has been rightly criticised for allowing C to dictate what she does, I am not convinced that this is not a situation specific to the unusual circumstances that occurred in October and November of last year and that I am not satisfied that she would adopt an inappropriately laissez-faire attitude towards bringing up C.

Conclusion

The decision I must make in this case can ultimately be distilled down to a balance between two factors. On the one hand we have C’s wishes and the possible consequences of making an order that does not accord with those wishes. On the other we have the factors I have indicated in paragraphs 31, 33 and 39 to 44 which would support the contention that the present orders should remain.
C, as I said, is almost 13 years of age; she will be 13 in exactly six weeks. Her wishes, I am satisfied, are clear and her wishes, I am satisfied, are firm. I do not interpret those wishes as being the result of any inappropriate pressure by the mother, or a result of any inappropriate reason such as the mother permitting her an overly libertine lifestyle. Whilst the reasons C gave to the mother for not wanting to live with her father are largely spurious, I do not intend to discount them for this reason. It may well be that a child will have a genuine wish to live with one parent rather than the other but find it impossible to articulate the reasons for that wish and will engage in rationalisation.
In my opinion, where a child of this age expresses a clear and firm wish as to the parent with whom he or she should reside and the reasons for the wish are not inappropriate, then that wish must be given considerable weight and that unless there are substantial reasons why orders should be made which are contrary to those wishes, then the wishes should prevail. This is a matter of balancing those reasons with those wishes.
There are reasons to make orders inconsistent with those wishes. As I have indicated, the actions of the mother in October and November and previously have, in many respects, fallen well short of the conduct that should be expected of a parent. In addition, as I have indicated, whilst C has been with the mother for the last three months or so, she has lived with her father and her siblings for some five years and that is a significant consideration. However, there are also reasons to accede to the child's wishes. As I have already indicated, there is a risk of further litigation if orders are made that she reside with her father.
In the end, it comes to a matter of balance. I am critical of the mother in relation to her conduct in October and November this year and earlier. I am not convinced, however, that it will necessarily impact in relation to the future, that is to say that it was not somewhat situation-specific. I am not satisfied that her giving C her head in relation to allowing her to come to court and taking her to various organisations necessarily implies that she will adopt an inappropriately laissez-faire attitude to her upbringing in the future, or that she will inappropriately accede to her wishes in relation to other issues.
Similarly, whilst her conduct in the other respects I have indicated is to be severely deprecated, I am not satisfied that will necessarily have an impact in relation to the future upbringing of C such that would justify ignoring her wishes. As I have indicated, the wishes of a child of this age need to be given significant weight. In the circumstances, I do not believe that the factors which indicate that C should not be with her mother are sufficient to justify making orders contrary to her wishes. I propose to make orders that C reside with the mother.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: