Wells and Bateman
[2011] FMCAfam 316
•4 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WELLS & BATEMAN | [2011] FMCAfam 316 |
| FAMILY LAW – Interim arrangements for care of child aged 9 – child has been living predominantly with father for three years – mother asserts child expressing strong wish to live with her – mother has not returned child – best interests. |
| Family Law Act 1975 (Cth), s.60CC |
| Cowling & Cowling [1998] FamCA 19 Stevenson & Hughes (1993) FLC 92-363 |
| Applicant: | MR WELLS |
| Respondent: | MS BATEMAN |
| File Number: | ADC 500 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 4 March 2011 |
| Date of Last Submission: | 4 March 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 4 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Andersons Solicitors |
| Solicitors for the Respondent: | R J Cole & Partners |
ORDERS
The mother through her agent Mr B return the child [X] born [in] 2001 to the father’s agent Ms W no later than 6:00pm on 5 March 2011 at [B].
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The child live with the father.
The child spend time with the mother on alternate weekends during school terms from 4:00pm Friday until 6:00pm the following Sunday or Monday in the event that Monday is a public holiday commencing on 18 March 2011 onwards.
The father, if he has not already done so, be at liberty to re-enrol the child at the [H] School and each party be restrained from changing the child’s school enrolment without the written consent of the other.
The parties enrol at the [N] Children's Contact Centre supervised handover program as soon as practicable but no later than 10 March 2011 NOTING the court requests that the Director of the [N] Children's Contact Centre (or their nominee) give earnest consideration to the parties’ application for enrolment of the parties to the Centre being expedited and prioritise.
Until such time as the parties have been accepted into the [N] Children's Contact Centre supervised handover program the mother collect the child from the [H] School at the beginning of each period referred to in order 3 hereof and return him via her agent Mr B at [B] to the father’s agent Ms W.
In the event that Mr B is unable to facilitate such handover the mother give notice to the father via text message of this fact twenty four (24) hours before, in which circumstances she is authorised to return the child to Ms W within the foyer of the Sturt Police Station.
Each party be restrained and an injunction issue restraining them from discussing these proceedings with the child.
THE COURT FURTHER ORDERS THAT:
If the mother fails to comply with order 1 hereof a recovery issue without further reference to the mother.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2001 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to
Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The matter is fixed for final hearing before Federal Magistrate Brown on 11 & 12 August 2011 at 10am NOTING 2 days allowed.
Further consideration of the matter is adjourned to 15 April 2011 at 9:30am and in particular, consideration of the time the child should spend with the mother during school holidays and on other special occassions, at which stage it is anticipated the Independent Children’s Lawyer will have been appointed and consideration can be given to what is the appropriate form of family assessment required in this matter prior to trial.
IT IS NOTED that publication of this judgment under the pseudonym Wells & Bateman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 500 of 2011
| MR WELLS |
Applicant
And
| MS BATEMAN |
Respondent
REASONS FOR JUDGMENT
The reasons for judgment were delivered orally, immediately following the interim hearing, which was highly controversial, particularly so far as the views held by the child concerned. As the matter is proceeding further and an order made for the independent representation of the child, it is appropriate that the reasons be transcribed.
The matter of Wells & Bateman is listed before me today. The applicant in the proceedings is Mr Wells. The respondent is
Ms Bateman. They are the parents of one child, [X], who was born [in] 2001. I will refer to Mr Wells and Ms Bateman as the mother and father respectively, in these reasons for judgment.
The proceedings come before me at an interim stage. The Court is often asked to make interim orders, in respect of children, against backgrounds of urgency and dispute. And so it is in this matter.
The father commenced these proceedings on 11 February 2011. At his request, the application he brought was given an urgent hearing date on 18 February 2011.
At that stage he sought orders that [X] be returned to his care, and failing his return, that a recovery order should issue directing police officers from the Federal and South Australian Police to recover the child and return him to Mr Wells.
The matter came before me for the first time on 18 February 2011.
Ms Bateman, the mother, had prepared some material in response. It is her position that the parties should have equal shared parental responsibility for [X], and he should, in the interim and on a final basis, live with her and spend alternate weekends in his father’s care, as well as for half of each school holiday period.
It seems common ground between the parties that they were involved in a relationship between about 1998 and 2005. After the parties separated, it seems to be the position that [X] was to live predominantly with his mother, and spend time with his father. This situation changed at some time in early January 2008.
There is an informal agreement, which both parties appear to have signed, at the Sturt police station, which ostensibly at least, indicates that [X] was to live with his father from 29 January 2008 onwards, and spend time with his Mother every second weekend.
Accordingly, it is the father’s position that there is a long-standing arrangement, whereby, [X] lives predominantly with him and spends regular periods of time with his mother. It is the father’s position that this agreement was essentially initiated by the mother.
The mother’s position is different. It is her position that Mr Wells, the father, is a manipulative and violent person. She asserts that she did not understand the agreement which was presented to her. In any event, she says she was not in a position to agree to such an agreement because of the power in balance in the parties’ relationship. Essentially, she asserts that, Mr Wells foisted that agreement upon her.
One of the drawbacks of an interim hearing is that it does not allow me to resolve factual issues between the parties in the matter of how [X] came into the father’s care as in many matters between the parties. I am not able to resolve that issue at this stage.
What is common ground between the parties is that [X] has lived with his father predominantly since early 2008. It is the mother’s position that [X] has, of late, begun to indicate very strongly to her that he wishes to live in her household predominantly.
It is her position that she has made this known to the father who is well aware of [X]’s view in respect of the matter. Further she was of the belief that the parties were going to trial a transition of [X] into her care throughout 2011.
The mother has deposed that there was an unfortunate incident involving [X], when she was in the process of returning [X] to his father, when he ran off and put himself at risk. It is her view, I think, that ostensibly after this, Mr Wells indicated his acquiescence to [X] spending the vast majority of the recent long school holidays with her.
In any event, it is common ground between the parties, that
Ms Bateman enrolled [X] at a school close to where she lives in the Southern suburbs of Adelaide. Previously, he had attended [H] School, which is near where the father lives in [suburb omitted].
The father objects to what he sees as the mother making unilateral decisions in respect of [X]. Parents of children are required to consult with one another about major long-term issues to do with their child or children. One of those issues is which school or type of education a child will receive.
The father is critical of the mother for not consulting with him about this issue of schooling. This formed part of the background to his application. He also believes that [X] should be returned to his care and re-enrolled in the school which he previously attended.
It is the mother’s position that to compel the child to return to his father’s household will cause the child psychological harm. She says that [X] has repeated to her on several occasions that, if this happens, he will run away from his father’s household and will kill himself. Given [X]’s behaviour before, the mother submits that this is a significant risk.
It is also the mother’s position that the father’s partner, [Ms M], has been abusive to the child and has subjected him to inappropriate discipline and assault in the past. The allegations are resolutely refuted by both Mr Wells and his partner, who have provided affidavits for the Court.
When the matter came before me on 18 February, there was a significant level of emotion between the parties. Over the objection of the father, I referred the parties to a family dispute resolution conference, which was to include [X]. The conference was to take place on 24 February at 10 in the morning.
I did that because the mother had put at the centre of her case her position that [X] was a child who was strongly saying that he wanted to live with his mother rather than his father, and it would distress him if this did not occur. And indeed, more seriously, if he did not get his wishes fulfilled he may potentially act in a way which would put him at risk.
As I recall, the father was opposed to such an intervention. He said he had arranged for the child to see a counsellor and psychologist, a Ms H, and that was the appropriate way to deal with [X]’s emotional issues. He was also concerned that for the child to be interviewed by a new person may place him under more, rather than less, stress.
At the time I indicated to Ms Horvat, who is Mr Wells’s barrister, that I was confident that the family consultant would be able to talk with the child in a respectful and safe way. Ms Bateman had no objection to such a conference taking place.
However, on 18 February, it was my view that [X] should return to the care of his father. I reached that view because of the long-standing nature of the arrangement, whereby [X] had lived with his father. I was also concerned at what appeared to be the unilateral nature of the mother’s action in respect of [X].
It may ultimately prove to be the case that there was some ambivalence or uncertainty about what the parties did or did not agree about what would happen to [X] over the long Christmas school holiday, and what that meant for his future care arrangements. However, it is clear to me that the parties do not have a trusting relationship with one another. As a result, they do not communicate well or effectively.
In those circumstances, I consider it imprudent of the mother to have considered that she had the father’s approval, not only to resume the predominant care of [X], but also to enrol him in the school of her preference. Anyway, that was the order I made. Unfortunately, since 18 February 2011, there has been an increase, rather than a reduction, in the level of conflict between the parties.
One of my roles in these proceedings is, as far as I can, to make the proceedings as less adversarial as possible, but rather focus on outcomes which will encourage, rather than retard, the parties concerned having an effective parenting relationship with one another in future. I am also to endeavour to ensure that the proceedings are conducted in a way which is child-focused.
That is one of the rationales behind getting experts involved in court cases sooner, rather than later. As a result. pursuant to section 11F of the Family Law Act, I engaged Ms T to speak with the parties, and indeed with [X], and report back to me.
Ms T’s advice to me is not tested in any way at this stage, but she has an advantage over me in these proceedings, in that she has met with [X]. She has also spoken directly with each of the parties, and as a result of speaking directly with them, is in a position to make some sort of direct assessment of what sort of people and parents they are.
Ms T indicated that Mr Wells gave a detailed and non-vindictive account of events, and expressed his concern about the impact of the current proceedings on [X]. To Ms T, Mr Wells confirmed the evidence which is provided in his affidavit material, that it is his view that [X] has been doing well in his care.
It was his view that [X] was a very difficult child when he first came to him to live in 2008, but it is Mr Wells’s view that he has done much to improve [X]’s behaviour. Mr Wells made it clear that he understood that the mother wanted [X] to return to her care in 2010/2011, but he also, for his part, made it equally clear that he did not think that this was necessarily likely to be in [X]’s best interests.
The tenor of what Mr Wells told Ms T was that he was concerned about the potential for [X] being placed in a position, where he understood that it was what he said which would be the sole factor in determining where he would live.
In her account to Ms T of what had occurred to the parties during their relationship and afterwards, Ms Bateman made it clear that it was her view that [X] was not safe in the father and [Ms M]’s care. She alluded to an instant in March 2010, when [X] had apparently been injured. She raised concerns about the father’s mental state, and the stability, I think of, the relationship between Mr Wells and [Ms M].
Importantly, Ms T interviewed [X] himself, who was described as a verbose child, but one with whom rapport was established easily. However, in Ms T’s expert impression [X] was a conflicted child, who was displaying symptoms of anxiety. Ms T thought that [X] was being influenced by adult ideas and seemed to have a significant amount of knowledge regarding the Court process.
In terms of the central issue in this case, at different times, when he was interviewed, [X] expressed a wish to live with each of his parents. He also said that he was concerned that what he informed his parents, about this issue was likely to hurt their feelings. This of course, is the risk to which Mr Wells alluded.
Children, who are not fully developed intellectually should not be placed in a position of thinking what they want or say may hurt the feelings of one or other of their parents.
Anyway, [X] said that he wanted to live with his mother because, to paraphrase him - he had not lived with her for three years; because he had seen his “mum’s face bawling”; because he wanted to get to know his older brother [Y] before he left home; and because [omitted] school was very caring and got its attitude up. When he was asked why he wanted to live with his father, [X] could not list any reasons for this.
Ms Horvat submits that some of these views may possibly be as a result of adult influence. She says that [X] saying that he wanted to live with his mother, because he had not lived with her for three years, seems to be indicative of him wanting to be even-handed to both his parents. As I say, it is the case that [X] has lived with his father for about three years, though, how easily the child is able to calculate that period, is unclear to me
In terms of the school, Ms Horvat submits the preferences the child expresses for that school seem to be influenced by adult considerations rather than the preferences of a child. As to issues pertaining to [Y], she is on, behalf of her client, dubious about that as a reason, given [X]’s age. She is also concerned that one of the factors, “mum’s face bawling”, seems to indicate a desire on the child’s part to reduce his mother’s anguish.
Anyway, when she provided the feedback to the parties, Ms T expressed her concern about [X]’s emotional wellbeing, given what she perceived was his significant knowledge of the issues in dispute between the parties. At that stage, the mother went to some length to say that it was not her who had been discussing issues with [X].
Ms T also indicated strongly that she did not think it was a good thing that [X] should feel that he was making decisions about his future care arrangements. In response to this statement the mother is reported to have asked what was the appropriate age.
In her advice, Ms T said she held concerns about [X] and urged the Court to think of mechanisms which would minimise [X] being exposed to the acrimonious conflict between his parents, so he could be absolved of feeling responsible for this current impasse. In terms of the future management of the matter, Ms T recommended that there should be a full family assessment report.
It is the position that [X] has not returned to his father’s care, as I envisaged, following spending time with his mother on the weekend of 25 February. Both parties have filed affidavit material in regards to what has happened since 25 February.
It is the mother’s position that [X] has resolutely refused to return to his father’s care, no matter how closely and strongly she urges him to go. In addition there seems to have been an unpleasant incident between the parties at [B], where [X] is usually exchanged between them, which involved police.
The matter came before me last on 1 March 2011. I expressed my concern, that it was my view, as [X] remained at the fulcrum of the dispute between the parties, and that I was unlikely to change my view as to what should happen, pending final hearing in respect of [X]’s care, just because of the way he had behaved recently, given the contents of Ms T’s advice to me.
Anyway, given this indication on my part, there was some informal agreement reached between the parties that [X] would go back to his father’s care on 2 March. However, once again this agreement did not materialise.
Mr Wells was apparently travelling to the agreed handover point, when he received a telephone call from [X] directly, who said he did not think he would be coming. He also said he did not want to go to [H].
Mr Wells is critical of the mother for engaging the child in this way. It remains his position that for reasons unclear to him, the mother is intent on influencing the child, whether that is done consciously or unconsciously on her part, he is unaware.
I have previously remarked that, I have some difficulty in comprehending an adult parent would not be in a position to deal with a child of [X]’s age, though, I accept I do not know [X] directly, and it does seem to be the position that he is a child of strong personality. I reached this conclusion because Ms T describes him as being a verbose child. Clearly he is a child who is not averse to saying things.
Anyway, I have to decide this matter within the framework of Family Law Act, at the interim stage, when I cannot make concluded findings a fact. I must bear in mind the best interest of the child as the paramount or most important consideration.
In determining how [X]’s best interests are served, I must look to a long list of matters contained in the Family Law Act in section 60CC.
The best interest provisions of the Act rest on twin pillars. I have to consider the benefits of the child having a meaningful relationship with both of his parents, and also the need to protect the child from physical or psychological harm arising from him being subjected to or exposed to abuse, neglect, or family violence.
It is essentially the mother’s case, as I understand it, that at this stage the overwhelming need that [X] has is that he should be protected from psychological harm, which will about if his ostensible views, as reported by her are not immediately met. This means that forthwith, he should live with her and spend time with his father.
The additional best interest considerations set out in section 60CC(3) are more numerous. They include the views of the child concerned, and in this context, the mother asserts that [X] is expressing strong views to live with her.
At this stage, I am worried about [X] suffering psychological harm, but I am not convinced that this is as a result of factors in the father’s household alone. He and his partner, Ms M, refute any suggestion that they would harm [X].
I am also concerned that the struggle between the parties is the factor that may be causing psychological harm to [X]. As such, it seems to me clear that [X] has to live more with one parent than the other at this stage.
In all proceedings related to children, before I make any order, I have to consider whether the presumption of equal shared parental responsibility applies. At the interim stage I have authority not to apply the presumption when I consider it not appropriate for such an order to be made. I think this is clearly a case when it is not appropriate for the presumption to be applied. For the reasons outlined the parties’ parenting relationship is clearly strained and raw.
As I say, it is my view that [X] needs to live more with one parent than the other, at this stage. Both parties agree with this proposition but disagree vigorously as to who that parent should be. The mother is strongly opposed to the child returning to his father’s care. She became upset during the proceedings, I think, and left the Court room. I am told by her counsel that she felt physically ill. Anyway, she left the Court room.
Although it might be said that I am drawing a long bow, I do have some concerns that she may have some inability to protect or quarantine the child from the emotions which she feels in this case. Those emotions are obviously very powerful.
In terms of the additional considerations, a child’s views are important. However, in assessing those views I have to look at the child’s maturity and level of understanding of the issues, which pertain to his or her care, before turning to determine what weight should be given to the child’s concerns/views.
In this case, [X] is a young child. He cannot be described as a mature child. It is also apparent, I think, that he is feeling the weight which these proceedings have created in terms of being responsible for making one or other, or possibly, both his parents happy.
It seems to me that [X] has a close relationship with each of his parents. The father concedes that [X] enjoys spending time with his mother. It is regrettable, I think, that the parties are not able to work out some way of resolving their difficulties without coming to Court and engaging in these bitter proceedings. But I am not critical of them for that, because clearly, this is a very difficult situation.
I have to consider the likely effect of any changes in the child’s circumstances. And this, I think, is a significant matter in a case such as this one. On any view, there is a long-standing arrangement whereby [X] lives with his father and goes to the [H] School.
He will have friends at his primary school. He has a routine there. Changes to a child’s living arrangements, particularly a child of [X]’s age, I think, have to be carefully managed. It is usually not a good thing for one parent to bring long-standing arrangements to an end without proper reference and authorisation from the other parent concerned.
I think, at this difficult point, [X] can have a meaningful level of relationship with each of his parents, if he lives more with one parent than the other, and spends time on the weekend with that other parent. Given how long [X] has live predominately with Mr Wells, I think [X] should return to live with him and spend time with Ms Bateman on weekends.
Ms Bateman’s fallback position is that I should make orders which would see [X] spending more time with her, particularly at weekends than presently occurs. I am concerned that that is not workable at this stage, because of tensions between the parties.
I am also concerned that somehow or other, whether consciously or unwittingly, [X] has the perception that he can determine what is the appropriate outcome of this case. He is not old enough to determine what is the appropriate outcome, particularly, because as a result of his immaturity, he is liable to be influenced by all sorts of factors. He may be influenced by what he sees as the mother’s emotional frailty for all I know, and his understandable desire to make her happy. I do not know if that is the case or not, but it is a possibility.
The other side of the coin is that deep down his living with his mother is what he prefers, and this has always been the case. But I am unable to establish this fact at this interim stage of proceedings.
I think that what the Full Court said in cases like Cowling & Cowling[1], and Cilento & Cilento[2] – although those cases predate the amendments to the Act brought about by the shared parental responsibility legislation – but what the Full Court said in those cases remains germane. Namely, that at the interim stage, the Court should be careful about changing long-standing arrangements for a child’s care, unless there are strong indications relevant to the child’s welfare and wellbeing. The mother says that this is a case where there are such indications.
[1] See Cowling & Cowling [1998] FamCA 19,
[2] See Cilento & Cilento (1980) FLC 90-847
Ms T did not find such indications, other than the child was being emotionally involved in this case. Ms Bateman, by necessary implication, asserts that there are such indications. Mr Wells denies that this case raises any specific welfare concerns.
The mother’s case is that the father is a violent and unstable person. The father refutes that assertion. I have to take allegations of family violence seriously, but the fact remains, that the parties have been separated for a significant period of time.
The arrangement of 2008, whether it was consensual or foisted upon the mother, is a long-standing arrangement. At this stage, I do not think it would be in [X]’s best interest if, because of what had happened at handover, because of what the mother asserts is his view and psychological frailty, that I change these long-standing arrangements for his care.
I will however fix the matter for final hearing, and as I already indicated, I will make an order that [X] be independently represented. I will allocate the earliest practical date for hearing.
In my view, there needs to be mechanisms to isolate [X] from the anxieties and emotions of the parties at handover. The obvious place to provide such mechanisms is at a children’s contact centre. Regrettably, there is very often a waiting list for parties to avail themselves of such contact centres.
But I will make an order that the parties do things necessary to enrol in the handover program at the [N] Children's Contact Centre, which is, as I understand it, the centre closest to where the mother lives.
It will not be a convenient place for the father, but he is willing to go there. I will also request the director of the centre give earnest consideration to expediting the parties’ respective applications to take part in the centre’s supervised handover program.
It is my view that the mother should return [X] to the father’s care. She has indicated her willingness to engage an agent to return [X]. Her agent is her partner Mr B. She proposes, and the father agrees, that that should occur at 4 o’clock tomorrow at [B]. And the father, again with a view to minimising potential conflict, proposes using his sister, Ms W, to collect the child.
As I have already observed, children take their cues from the emotions of the people surrounding them. Whether [X] is acting out his mother’s distress, is unclear to me. Whether the mother is actively attempting to influence [X], is also unclear to me.
But having formed the view that [X]’s best interests will be served by living with his father, regrettable as it may seem, if there is not compliance with that order, I will have to make an order, and I will make an order, that a recovery order issue directing police to go and collect him and deliver him to where I have determined his best interests will be promoted at this interim stage.
I have some foreboding as to what the arrangements should be for [X] to be collected and returned, until the parties get into the [N] Children's Contact Centre. But as I say, it is up to the parties to ensure that there is adherence to these orders. The parties are bound by my orders.
It is their responsibility to encourage the child to comply with orders, to encourage and cajole the child to comply with my orders. If that fails, if necessary, direct the child, as a parent, that there is to be no negotiation, and the child will do as he or she is told. That may be thought to be an old-fashioned attitude, but I think it flows from what the Full Court has said in cases such as Stevenson & Hughes.[3]
[3] See Stevenson & Hughes (1993) FLC 92-363 at 79,815-6
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 4 March 2011
0
0
1