West and West - [2011] FMCAfam 1447

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEST & WEST

[2011] FMCAfam 1447

FAMILY LAW – Parenting orders – whether husband will promote children’s relationship with wife – whether children at risk in mother’s care.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAC

Applicant:

MS WEST

Respondent:

MR WEST

File Number:

DGC 1265 of 2010

Judgment of:

Phipps FM

Hearing dates:

18, 19 & 20 July 2011

Date of Last Submission:

20 July 2011

Delivered at:

Dandenong

Delivered on:

22 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Davis

Solicitors for the Applicant:

Robert Wood & Associates

Counsel for the Respondent:

Mr Arnold

Solicitors for the Respondent:

Lampe Family Lawyers

ORDERS

The husband and the wife have equal shared parental responsibility for the children [Y] born [in] 2007 and [X] born [in] 2002.
The children live with the wife.
The children spend time and communicate with the husband as follows:
(a)During school terms:
(i)From after school Thursday to before school Monday each alternate week commencing with the first weekend in each school term,
(ii)From after school Thursday to before school Friday each alternate week commencing with the second week of each school term.
(b)For half school term holidays as agreed and if not agreed the first half;
(c)For half of the 2011/2012 summer holidays as agreed and if not agreed from 5.00pm on 1 January 2012 until 5.00pm on 21 January 2012;
(d)Half of all other summer holidays as agreed and if not agreed the first half in 2012/2013 and in alternate years thereafter and the second half in 2013/2014 and in alternate years thereafter;
(e)Unless otherwise agreed from 5.00pm 25 December 2011 until 5.00pm 26 December 2011 and in alternate years thereafter;
(f)Unless otherwise agreed from 5.00pm 24 December 2012 until 5.00pm 25 December 2012 and in alternate years thereafter;
(g)If the children are otherwise spending time with husband the time is suspended from 5.00pm 24 December 2011 until 5.00pm 25 December 2011 and in alternate years thereafter and from 5.00pm 25 December 2012 until 5.00pm 26 December 2012 and in alternate years thereafter;
(h)For four hours on each of the children’s and husband’s birthdays as agreed and if not agreed from 4.00pm to 8.00pm;
(i)If the children are otherwise spending time with the husband the time is suspended for four hours on each of the children’s and mother’s birthdays as agreed and if not agreed from 4.00pm to 8.00pm;
(j)From 10.00am until 5.00pm on Father’s Day;
(k)If the children are otherwise spending time with the husband time is suspended from 10.00am until 5.00pm on Mother’s Day;
(l)By telephone at all reasonable times;
(m)Otherwise as agreed.
The child [X] be enrolled in a school in the [Suburb A] area.

IT IS NOTED that publication of this judgment under the pseudonym West & West is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 1265 of 2010

MS WEST

Applicant

And

MR WEST

Respondent

REASONS FOR JUDGMENT

Introduction

The husband and wife have two children [X] born [in] 2002 and [Y] born [in] 2007. Pursuant to interim orders made by consent on 8 December 2010 they live with the wife from 5.00pm Friday to 5.00pm Sunday on alternate weeks and from 5.00pm Thursday to 5.00pm Saturday on alternate weeks and otherwise with their father.
The mother now proposes that the children live with her and spend alternate weekends from after school Friday until before school Monday and one other night in the alternate week with their father plus half school holidays and on special days. The father proposes that the children live with him and spend alternate weekends from Thursday night after school to before school Monday, with the mother and one night in alternate weeks, half school holidays and on special days.
The mother has an older daughter from a previous relationship, [Z] who is aged 13.
The parties met in 2001 and commenced living together in about 2002. They married [in] 2004 and separated [in] 2009. The mother then travelled to England for two months with [Z]. [Z]'s father lives in England. The two boys stayed with their father. The mother says she wished to take the boys with her but the father did not agree. When the mother returned the parties attended mediation and in October 2009 negotiated arrangements with the children spending part of the week four days/three days with each parent.
This continued until the end of October 2010 when the husband refused to return the children to the mother because of an allegation that [Z] had sexually interfered with [Y]. The children did not see the mother until orders were made on 8 December 2010. The wife commenced the application in April 2010 and until December it had been a property application only.
Until separation the parties lived in a property they had purchased at [address omitted], [Suburb B]. The husband still lives there. The wife has re partnered and lives in [Suburb A]. The property proceedings have been settled. The husband retains the former matrimonial and the wife receives payment of $300,000. The husband works full time, although he works from home for some of the time, and relies on his parents to assist with the care of the children when they are with him.
The wife says that during her pregnancy with [Y] she began to feel depressed. A few months after the birth things had not begun to improve. She saw a medical practitioner and tests showed that she had an active thyroid. The doctor prescribed some medication without much improvement and symptoms re emerged. In the middle of 2008 she was prescribed an antidepressant and she saw a psychiatrist on two occasions.
She saw a psychologist on a number of occasions, the last occasion being 20 April 2011. She said that the psychologist told her that she did not need to come back unless she felt she needed to. The wife says that she is settled in her new relationship and happy and well.
An issue in the case is the mother’s relationship with her daughter [Z]. The wife describes difficulties between herself and [Z] and between [Z] and the husband.
The Child Protection Services of the Department of Human Services has had involvement with the mother. One occasion involved [Z] in August 2010. The mother says that during an argument with [Z] she left the house. [Z] told the child protection officers that her mother had hit her in the face and the report says that [Z] presented with a bruise to her right eye. The wife says she hit [Z] on the arm.
The Department of Human Services report expressed concerns about [Z]'s emotional health and psychological well-being as well as her vulnerability being increased by the cumulative effects over time which include historic traumatic events perpetrated by her stepfather as well as the mother’s violence towards her. Concerns were expressed about the mother's mental health.
The child protection officers continued to be involved with the mother and [Z] until early 2011 and then were satisfied that there were no longer any protective concerns concerning [Z]. Both the mother and [Z] had counselling which is now finished. Mr G, the family report writer, interviewed [Z] in July 2011. [Z] told him she was getting on "pretty well" with her mother and that they no longer had counselling but it was there if they needed it in the future. She appeared to feel life was steady and that she was relatively happy. She stated that she enjoyed time with her brothers, but could retreat to her room if needed. She missed the boys and would be much happier if they were there more often. She felt things were going fairly well. She saw her grandparents regularly and continued to have positive and supportive interaction with them.
The wife has a defacto partner Mr S. They commenced seeing each other in early 2010 and started living together in a house Mr S built in [Suburb A] in early 2011. Mr S’s children, a daughter aged 24 and the son 2 live with them.
Mr S gave evidence. He is happy with the arrangement and the children. He considers the relationship a permanent one. The wife considers the arrangement is permanent. She says emotionality she is well and happy. Mr G observed the children [X] and [Y] at home in the mother's house and in the father's house and he said they appear to be well settled in both households, where they had their own rooms and play areas. In particular, Mr G observed that the children interacted easily with Mr S and with their sister [Z].
Both the wife and Mr S say their relationship is happy and stable and so will continue. The objective evidence supports them. The wife, previously emotionally fragile, no longer needs counselling. Mr G expresses no concerns about her presentation and, most importantly when the welfare of the children is concerned, they present as happy and well cared for in the household of the wife and Mr S. If the children live predominantly with the mother they will be living in a household which is stable and likely to endure.
The events of November and December when the husband prevented the mother from seeing the children are clearly relevant. The husband says that [Y] told him that [Z] touched his penis. This was reported to the Department of Human Services. [Y] was interviewed and said that [Z] had touched his willy. It is noteworthy that subsequently a child protection officer, when speaking to the husband, expressed concerns that aspects of [Y]’s statement appeared to be prepared and quite extensive for a three-year-old child. The wife and [Z] were interviewed and denied that the event or events had happened.
This discussion took place on 29 October 2010. The child protection officer informed the husband that the matter had been addressed through the wife agreeing to supervise contact between [Y] and [Z]. The husband informed the child protection officer that his solicitor had sent the mother a letter dictating that the boys would not return to her care until alternative arrangements have been made for [Z] to live elsewhere. The child protection officer informed the husband that this was a completely unreasonable expectation. The child protection officer said to the husband that it is not fair on the boys that they have not seen their mother and that they are likely to feel stuck in the middle of both their parents as a result of these events. The husband informed the child protection officer that the boys had not requested to see their mother.
Mr G prepared two reports. In the first dated 8 December, 2010 the wife told Mr G that in general the October 2009 plan worked all right. She said that the incident and subsequent intervention by the Department of Human Services had changed this and she now believed the boys were best in her care. She did not believe the husband supported the children's relationship with her or with their older sibling or extended maternal family.
The father maintained serious concerns about the mother's capacity to parent, in particular to responsibly contain [Z]. From the father's perspective, prior to separation, the household was chaotic with the mother and [Z] often clashing and this spilling over to the boys and to the marital relationship.
In the second report, dated 12 July 2011 the mother's perspective was that not much had changed except their living arrangements. She did not believe the father to be sufficiently available to care for the boys because he worked full time. She questioned the logic of the amount of time the children spent with paternal grandparents when she was readily available.
The husband maintained a concern regarding the mother's ability to parent and supervise the boys and [Z] while in her care. He considered that the boys have continued to do well in his care. He recognized that it can be very busy and that his work commitments impact on his time with the children at times. But he considered this worked well for the children. His parents are both healthy and capable of supporting his parenting.
The husband pointed out to Mr G that the children have always lived with him in the current home and are well entrenched in the area with friends nearby and other parents from the school who will sometimes collect the children and otherwise help. Mr G noted that if [X] goes to live with the wife that will mean a change of school from [Suburb B] to [Suburb A].
Mr G interviewed [X], [Y] and [Z]. [X] said several times he wanted more time with his mother. Mr G said that [X]’s overall appeared to miss longer time when his mother and maintained a sense of fairness about more evenly distributed time. He got on well with Mr S and he enjoyed playing with [Z].
In his first report Mr G did not make a recommendation but said that there were a number of options, one of which included a continuation of the previous equal time arrangements. In his second report he said that is no longer an option. Nobody was proposing it and the distance between the parties’ homes, 40km and about 40 minutes drive made it impractical. Whichever parent the children lived with he proposed substantial weekend time and half school holidays with the other parent.
[Y] is only four but said he would like to spend more time with his mother. In an exercise with cards he chose smiley cards for his mother and cranky cards for his father and [X]. He chose happy cards for himself and [Z].
Mr G's interview with [Z] has been described above. In summary she is getting on well with her mother and with her brothers.
Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that a child’s best interest is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC
The parties agree on an order for equal shared parental responsibility. The consequence of the making of this order is that s.65DAC requires parties to consult and make a genuine effort to reach agreement about major long-term issues affecting their child or children. Despite the difficulties between them the parties should be able to meet this requirement.
Since I propose to make an order for shared parental responsibility s.65DAC applies. This requires the court, when it makes an order, or intends to make an order, for shared parental responsibility, to consider whether equal time would be in the best interests of the children and reasonably practicable or if not equal time then whether substantial and significant time would be in the best interests of the children and reasonably practicable. Substantial and significant time is defined.
I do not need to consider equal time because neither party proposes it and because of the distance the parties residences it is not reasonably practicable. I will need to consider the substantial and significant provisions.
I turn to the best interests considerations in s.60CC

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child's parent

Whichever arrangement is put in place the children will have a meaningful relationship with each parent.

The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence

The difficulties in the relationship between the mother and [Z] and the incident where the mother struck [Z] and [Z] left home for a few days must be considered. It is relevant as well to the mother's capacity to care for the children.
The mother acknowledges that she struck [Z] on the arm. The Department of Human Services investigation substantiated a risk to [Z] and accepted that [Z] had been struck in the face and there was bruising. On the balance of probabilities I consider that that is what happened. The incident was family violence within the definition contained in s.4 of the Family Law Act 1975 (Cth) and so what must be assessed is the risk of [X] and [Y] being exposed to any further incident or incidents of family violence between the mother and [Z].
Following the incident both the mother and [Z] had counselling specifically dealing with their relationship. The mother was seeing a psychologist but no longer does and does not feel a need to. The Department of Human Services have ceased their involvement with the family. Mr G interviewed [Z] and that showed a current satisfactory relationship between [Z] and her mother. The evidence shows little current risk of the children being exposed to family violence involving the wife and [Z] or of any disputes between the wife and [Z] beyond those normal for a child of [Z]'s age.
The allegation of sexual abuse of [Y] by [Z] must be considered. It is within the definition of abuse of a child in s.4 of the Family Law Act 1975 (Cth). It was resolved by the Department of Human Services by the wife undertaking not to leave [Y] and [Z] together unsupervised. Similar provision is included in the consent orders of 8 December 2010.
A positive finding one way or the other about the alleged incident or incidents is not possible. [Z] denied the incident or incidents when interviewed by child protection officers. The wife does not believe it happened. The child protection officer who spoke to the father considered [Z]'s statements appeared rehearsed.
Mr G has seen all three children since this alleged incident and sees no problems in the relationship between [Z] and her siblings, in fact the opposite. There is no suggestion of any difficulty in the relationship between [Y] and [Z] since the children’s time with their mother resumed in December 2010. The risk of abuse by [Z] is so small it is not relevant to the question of whether the children should live with the husband and spend time with the wife or live with the wife and spend time with the husband. There is no need for an order restricting or controlling [Z]’s contact with her brothers.

Additional considerations

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

[X] aged 8½, when interviewed has said that he wants to spend more time with his mother. Within the limits of his age of four [Y] has said the same. This cannot be achieved for practical reasons by having equal time or something approaching equal time between the parents. The only way the children can have more time with their mother is if they live with her in something approaching her proposal.

The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child)

The children have a very good relationship with each parent. Mr G's observations show this. The time before separation was difficult in the family and since separation they have spent more time with their father than their mother, not always with their mother's agreement. It cannot be said that either of the parents is the primary carer.
Their relationship with their half sister [Z] is important. All three children enjoy each other's company and the sibling relationship will be promoted if the children are living predominantly in the mother's household.

The children obviously have a good relationship with the paternal grandparents. They have taken a substantial role in caring for the children since the parties separated. The children will spend less time with their grandparents when living with their mother.
The mother's partner is significant. The children have a good relationship with him.

The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

This consideration is emphasized by the wife and commented upon by Mr G
Mr G expresses the opinion that the husband has demonstrated an ongoing reluctance to fully support the boy's relationship with their mother and certainly their older sibling. He notes that the mother has been available on holidays and at other times and it would appear the father has not recognized the importance of the boy's time with the mother.
The mother says that when she returned from England she had difficulty negotiating with the father to have time, although eventually the problem was resolved through mediation. She says there was difficulty in telephone communication. There was the episode where the wife did not see the children from the end of October to early December 2010. The wife says she was unable to negotiate holiday time with the husband for term holidays in 2011.
What must be considered is the husband's likely attitude in the future. The episode in October, November and December 2010 shows, at best, a lack of insight by the husband into the importance of the children's relationship with their mother. He was told by a child protection officer that the claim that [Z] had touched [Y]’s penis had been investigated. He was told that [Y] had repeated the statement when interviewed but the officer had doubts about [Y]’s statement because the words appeared to be rehearsed and quite extensive for a three-year-old child. He was told that the child protection officers were satisfied that there was no risk to [Y] upon the mother undertaking not to leave [Z] and [Y] together and unsupervised.
The husband was told that his stated requirement that [Z] not be present in the house while [Y] was there was unreasonable and unfair to [X] and [Y] and yet he persisted with that stand until the court date of 8 December 2010. Consent orders were made on that date which provided for the children's time with their mother. The husband had no choice but to consent because in the face of the approach of the child protection officers the court would inevitably have made similar orders.
It may have been reasonable for the husband to obtain advice from his lawyers after speaking to the child protection officer, but it was not reasonable to wait until the court date of 8 December 2010 before agreeing to the children resuming their relationship with their mother.
The orders of 8 December 2010 provided for the Christmas holidays but not term holidays. The mother wanted to negotiate time for school term holidays but the husband did not. His explanation in one of his affidavits says that he decided to wait until court.
By the first term holidays 2010 the Department of Human Services had ceased their involvement with the wife arising out of both the incident with [Z] and the incident with [Y]. The children had spent a block period of time with the wife in the Christmas holidays. Until the end of October 2010 the children had spent equal time with each parent. There is no reason why the children were not entitled to have some longer periods of holiday time with each parent.
The October incident and the failure to agree on holiday time shows a reluctance by the husband to promote the children's relationship with the wife beyond any legitimate concerns he may have had about her capacity to care for and manage the children, including [Z]. Should he have the care of the children for the majority of the time there is a risk that he will use this greater level of control to limit the children's relationship with the wife.
The wife has never attempted to limit the children's time with the husband under either the mediated settlement or court orders. The wife shows that she acknowledges the importance of the children's relationship with the husband and the need to promote it.

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 (including any grandparent or other relative of the child), with whom he or she has been living

The children lived in the former matrimonial home until separation and have spent a substantial amount of time living their since. [X] goes to school in [Suburb B] and if he is to live with his mother he will have to change to a school in [Suburb A]. Mr G has commented on how the change will affect [X], and I must take this into account.
If the children live with their mother, apart from spending less time with their father, they will see much less of their paternal grandparents and again I must take this into account.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The parents live about 40 minutes drive apart. This is a significant consideration in determining equal time if it was relevant and in determining equal and significant time but it does not assist in deciding who the children should live with.

The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

The husband submits that the wife’s history of care raises doubts about the wife’s ability to manage a household and the care of the children, including [Z], and that her ability to manage [Z] affects her ability to care for [X] and [Y]. This is a matter which concerned Mr G.
The combination of Mr G's reports and his oral evidence is that his opinion is that the children should live with the wife provided the court is satisfied about the mother's ability to do so. The matters of concern were the mother’s psychological state and issues involving [Z] and [Y].
One of the matters of concern to the mother which Mr G noted was that property proceedings were not resolved. They have now been resolved with a payment to the wife of $300,000. The mother’s psychological state is stable and the relationship between her and [Z] satisfactory. The children are happy with her and wish to see more of her. The mother is in a stable relationship.
The difficulties the mother had in managing a household and caring for children, including [Z] are in the past and she shows she does have the capacity to care for the children and provide for their needs.
The children have been well cared for while with the husband. Mr G comments on this. A significant amount of the care has involved the husband’s parents. Mr G says there are concerns regarding how much time the father is available to their children full-time and how much time they are in the paternal grandparents care. He considers that the long term viability is somewhat open to argument.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

There are no particular characteristics of the children which are relevant.

If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact

The children are not Aboriginal children or Torres Strait Islander children.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Both parents love the children and take their responsibility seriously.

Any family violence involving the child or a member of the child's family

There are none other than those already dealt with.

Any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested by a person

There are no relevant orders

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 children

This consideration is not relevant.

Any other fact or circumstance that the court thinks is relevant

There are no other relevant circumstances.

Discussion

The balance of the best interest considerations favours the children living with the wife. This will accord with the children's views that they want more time with their mother. It will strengthen their relationship with their older sister. The wife will promote the children's relationship with the husband whereas, as Mr G notes, the husband has demonstrated an ongoing reluctance to fully support the boy's relationship with their mother and certainly their older sibling.
The wife has a stable relationship with Mr S, suitable accommodation and adequate finances. She will work only part time at most and so can provide for the children's day-to-day care. The husband can provide for the children's day-to-day care but he is dependent upon his parent’s assistance.
The change will remove the children from what Mr G describes as their entrenched environment which will affect [X] more than [Y] because [X] will have to change schools, but this does not outweigh the other considerations.
Mr G says that whichever parent the children live with it is clear to him that the children wish, and need, substantial time with the other parent. He suggests from after school Thursday until before school Monday in one week and from after school Thursday to before school Friday before school in the next week. He proposes week about in school term holidays. The parties agreed on times for 2010/2011 summer holidays so that the children spent two periods, one of 7 days and one of 13 days with the wife.
The wife proposes alternate weekends from Friday night to Monday morning. Mr G's expert opinion is persuasive. It better accords with the statutory description of substantial and significant time. Mr G acknowledges the difficulties caused by the travel but says this can be managed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 22 December 2011