Westcott and Westcott
[2008] FMCAfam 1229
•14 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WESTCOTT & WESTCOTT | [2008] FMCAfam 1229 |
| FAMILY LAW – Parenting orders. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA |
| Applicant: | MS WESTCOTT |
| Respondent: | MR WESTCOTT |
| File Number: | DGC 4994 of 2007 |
| Judgment of: | Phipps FM |
| Hearing dates: | 11, 12 & 13 August 2008 |
| Date of Last Submission: | 13 August 2008 |
| Delivered at: | Dandenong |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | M. J. Leeton |
| Solicitors for the Applicant: | Julie Taylor |
| Counsel for the Respondent: | N. A. James |
| Solicitors for the Respondent: | Reale Lawyers |
ORDERS
THAT all previous orders are discharged.
THAT the mother and the father equal shared parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2004.
THAT until 14 January 2009:
(a)the children live with the mother;
(b)the children spend time with the father after school 14 November 2008 until 7.30pm on 16 November 2008;
(c)
the children spend time with the father from 3.45pm on
23 December 2008 to 7.30 pm on 29 December 2008. At his own expense the father is permitted to take the children to Queensland for this time;
(d)Changeover is to take place at Coles Supermarket, [suburb omitted] unless otherwise agreed.
THAT commencing 14 January 2009:
(a)The children live with the father. The father is to collect the children at 5:00pm outside the Coles Supermarket, [suburb omitted] unless otherwise agreed;
(b)The father is permitted on 14 January 2009 to relocate the children’s residence to Queensland;
(c)The children spend time with the mother:
(i)For all of Queensland Gazetted school term holidays commencing at 3.45pm on the last day of school term until 5.00pm on Sunday before next school term commences;
(ii)During school terms every fourth weekend from 3.45pm Friday until 7.00pm Sunday commencing the fourth weekend in each school term;
(iii)For three weeks of the summer vacation as agreed and if not agreed commencing 23 December 2009 and each alternate year there after and commencing 27 December 2010 and each alternate year thereafter;
(iv)For the purposes of paragraphs 4(c)(i) herein, the time will take place in Victoria with the mother to collect the children at the McDonalds Family Restaurant closest the father’s residence at the commencement of time (unless otherwise agreed) and the father to collect the children outside Coles Supermarket, [suburb omitted] at the end of time (unless otherwise agreed). The mother is to pay the cost of air travel at the commencement of time and the father is to pay the costs of air travel at the conclusion of time.
(v)For the purposes of paragraph 4(c) (ii) the time is to take place in Queensland with changeover to take place at the MacDonald’s Family Restaurant closest to the father’s residence unless otherwise agreed.
THAT the children are to communicate by telephone or internet communication with the party with whom they are not residing at any time as agreed.
THAT each party is to keep the other informed of their current residential address and telephone number.
THAT the father is to provide the mother with copies of school reports, school circulars and the like.
IT IS NOTED that publication of this judgment under the pseudonym Westcott & Westcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 4994 of 2007
| MS WESTCOTT |
Applicant
And
| MR WESTCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother Ms Westcott and the father Mr Westcott have two children, [X] born [in] 2000 and [Y] born [in] 2004. They separated in September 2007 when the mother, without the father's knowledge, left the family home in Queensland with the children and moved to [P] in Victoria to live with her parents. The father and mother now disagree on who the children should live with, the father in Queensland or the mother in Victoria.
A significant issue is the behaviour of the parties during the relationship.
The mother was born [in] 1965 and is aged 43. The father was born [in] 1967 and is aged 41. They met and commenced living together in 1995 or 1996. Both had previously been married and have children from those marriages. The mother has two, [R] born [in] 1989 and [J] born [in] 1992. Both lived with their mother when the parties commenced the relationship.
The father has three children from his previous marriage, two sons aged 21 and 13 and a daughter aged 17. He has had contact with the 21-year-old son and was hoping to establish a relationship, but does not have contact with the others.
In 1997 the parties moved to [C] a country area in Queensland. The town was 35 minutes away and the girls attended the primary school travelling by bus. The property belonged to the father's mother. Initially they lived in a caravan with an annex. The father worked on [omitted] and was away for significant periods of time. The father acknowledges that life would have been difficult for the mother.
Both parties acknowledge that the relationship was happy until 1999. The father's mother came to live with them in 1999. The mother says that her life changed for the worse because the father’s mother was domineering and interfering and did not allow the mother to have any privacy. To Dr A, who prepared a psychiatric report, the mother said that throughout the relationship the father humiliated and bullied herself and the children.
The father alleges that the mother became aggressive and erratic. He alleges that she became verbally aggressive to him, his mother and her daughters. He says at first she was verbally abusive but then she became physically aggressive towards him and his mother.
The parties moved into the township of [C] and then moved to Brisbane in October 2001.
In the mid-2000 the father, with the mother’s agreement, had a vasectomy. There were complications and further operations, following which the father had a long period during which he had to take medication for pain relief. The mother alleges he abused the medication, drank heavily and had dramatic mood swings and was abusive to her daughters. The father denies these allegations. He alleges the mother began having more difficulties with her daughters, particularly the older one, and became more aggressive and abusive. The mother denies these allegations and alleges the father was abusive towards her daughters.
The mother became pregnant again, and [Y] was born [in] 2004. The mother was in hospital [in] April 2004 in preparation for the birth by caesarean section. Her two daughters were staying with friends. The younger girl was raped by a friend or acquaintance of the family. The mother was told, and became so distraught that the doctor decided to cancel the operation and the mother went home. She went into labour the next morning, and had severe complications during the birth.
Each party alleges that the other’s behaviour deteriorated further after the birth of [Y]. Each alleges abuse, including physical abuse, of [R] and [J] by the other party.
Both girls moved out. [R] moved in April 2006 to live with her boyfriend at his parent’s house. She was sixteen. [J] moved out in February 2007 and moved in with [R] and her boyfriend, who by then had their own home. [J] was 15.
A series of incidents occurred in August and September 2007. The parties have conflicting versions of what occurred. The mother left with the children on 10 September 2007 and brought them to Victoria to live without the father's knowledge.
The mother applied in the Victorian Magistrates Court for an intervention order on behalf of herself and the two children. The father attended court on 15 October 2007, unrepresented, and consented, without admissions, to of the order being made.
The father applied for legal aid and a solicitor was appointed. He says he was advised that he would have to participate in family dispute resolution. He says eventually, on 10 December 2007, he was advised that family dispute resolution was not appropriate. He had not sought any contact with the children and says he could not contact the mother because of the intervention order. Consequently six months went by before he saw the children.
The mother filed an application in the Federal Magistrates Court in Dandenong on 3 December 2007. Orders made on 18 February 2008 provided for the father to spend time with his children each week from 3:45 p.m. Thursday until 7.00 p.m. Sunday. After the first few visits he could not afford to keep coming every week, and the 18 March 2008 order changed the time to all school holidays and every alternate week from 4.30 pm Wednesday until 7.00 pm Sunday. The father saw the children for the first time since September 2007 in February 2008.
Relationship between the parents
Ms Lillia Szarski prepared a family report. She says that the mother presented as a very vulnerable, emotionally labile parent and she exhibited signs of distress and at times, of total self absorption.
One of Ms Szarski’s recommendations is that there be a psychiatric report. That was done by Dr. A for both parties. His conclusion about the mother is that while she did not show signs of acute psychiatric disorder there is evidence that she has experienced some personality difficulties throughout her life. He said in particular she is quite mistrustful of others and tends to project the responsibility for most of her difficulties on others.
Ms Szarski reports that the mother alleges a series of events which she felt were mental abuse. Ms Szarski then says that these statements, evident throughout the interview, showed that the mother believed that the father has significant mental health problems. Dr. A's report says there was no evidence of significant anxiety or depression at the father’s interview, nor was there any evidence of underlying psychotic illness.
The mother says that she left because she was frightened and demoralised by the father’s behaviour. As well she suspected him of having an affair with a family friend, somebody she regarded as at one time as her best friend.
In her summary and recommendations Ms Szarski says that the mother continues to demonize her former partner and demonstrates suspicion, and elements of paranoia about his behaviour the veracity of which is difficult to ascertain.
Ms. Szarski interviewed [X]. She says what was evident in his experience was the conflict between his parents. He experienced constant arguments and how angry and destructive that became when they argued. He surmised that his parents usually worked things out, but felt that they had little or no idea how exposed he was to the conflict or his witness to the arguments. His sadness came from experiencing his parents saying mean things to each other and then complaining about each other. His anger came from seeing his parents in conflict with each other and he at times was scared how the arguments might end.
Various incidents were canvassed during the evidence. Several of them were shortly prior to the separation. Part of the father’s evidence is a recording of part of one of these incidents, and a recording of a 000 telephone call by the father. There is also some evidence from others of particular incidents.
The mother's two older daughters left as already described. Each party said it was the behaviour of the other. [R] gave evidence in support of the mother. She alleged violence towards her by the father and towards her boyfriend. The father acknowledges a confrontation with the boyfriend.
What this evidence shows is conflict between the parties, consistent with [X]’s description to Ms Szarski’s and her assessment of its effect on him. It shows behaviour by the mother consistent with Ms Szarski’s assessment of her personality. It shows that the conflict was not one sided. The evidence shows the mother’s emotional state was as described by the professional witnesses. She was not the only participant in the arguments. It is not a case where the mother was abusive towards the father and he was not responding. Both participated in the conflict. Overall the evidence does not show a deliberate course of action by the father to demonise the mother.
Family Law Act
The presumption of equal shared parental responsibility contained in s.61DA of the Family Law Act 1975 (Cth) applies. Neither party says that it is rebutted. Although there has been conflict between the parties, it is not family violence or abuse or other best interests considerations which might rebut the presumption.
The requirement to consider where equal time or substantial and significant time is reasonably practicable and in the best interest of the children is not relevant in this case. The mother proposes that the children live with her in Victoria. The father proposes that the children live with him in Queensland. Neither proposes moving. The time the children can spend with the non resident parent is governed by the distance the parties live apart. Neither equal time nor substantial and significant time is practicable.
This is not a relocation case in the sense that where either is to live is an issue. The mother has moved to Victoria and intends staying in Victoria. The husband does not put forward a proposal that might involve the mother having to move back to Queensland. He proposes that the children live with him in Queensland. He does not intend moving to Victoria. The mother does not put forward an option that she will move back to Queensland. She proposes that the children live with her in Victoria. The court does not have available an option that might involve one or other moving because neither has any proposal for their own and the children’s living arrangements other than where they are at present.
Section 60CA of the Family Law Act provides that the best interests of the children is the paramount consideration. The best interests must be considered in light of the objects of the Act see out in s.60B. Considerations for determining best interests set out in s.60CC.
The two primary considerations are the benefit to the children of having a meaningful relationship with each parent, and the need to protect the children from harm. Except for one issue relevant to the mother's father, the need to protect the children from harm is not relevant. The primary consideration of the benefit to the children of a meaningful relationship with each parent needs to be considered in the light of all the other relevant s.60CC considerations.
The relevant s.60CC considerations are
a)the wishes of the children;
b)the relationship of the children with each of the parties and other people;
c)the willingness to facilitate the relationship with the other parent
d)effect on the children of any change;
e)the practical difficulties in communicating and maintaining contact;
f)the capacity of each party to care for the children;
g)the attitude to the responsibilities of parenthood;
The wishes of the children
[X] is eight. Ms Swarski summarized his responses throughout the interview as follows:
·he desperately wants reconciliation of his parents
·he wants a shared arrangement
·he experiences his parents arguing as being caught in the middle
·he feels strong responsibility for [Y]
·he is sensitive to both of his parents moods
·he has a clear attachment and enjoys and has fun with his father
·he is very aware of his mother's depressive moods
The shared arrangement referred to was [X]'s suggestion that he should spend year about with each parent. The report writer remarks that his ability to conceptualize what that would involve was not well developed. The report writer said that [X] could not conceive of a situation where he did not see each parent on a regular basis.
[Y] is too young to communicate any wishes.
The relationship of the children with each of the parties and other people
The mother was the principle carer of the children throughout the marriage. Since separation, she, with her parents, had the care of the children to exclusion of the father for six months. Since then, the children have lived principally with their mother and her parents but have had regular time with their father.
Ms Szarski describes [X] as more animated with his father and sensitive to his mother’s crying episodes. She says he is close to his father whom he sees as someone who understands and responds to his emotional needs. She says his attachment to his mother is also evident. It has a different quality in that he sees her in different moods and her current depression makes him feel insecure.
Ms Szarski says [X] is protective and a "parent" to [Y]. She says the behaviour may be a recent development since neither parent mentioned the characteristic during interviews.
She describes [Y] as more self-sufficient. He appears to ask for attention when he needs it. He enjoyed the tactile and tumbles with his father, while little physical connection was initially observed in the mother's home. Ms Szarski qualifies the statement by saying that the stressed atmosphere in the home might not have been condusive to observing interaction. She says [Y]'s attachment to his father was evident. She was unable to say whether the attachment between [Y] and his mother is compromised.
The two children have spent much of their lives living with their half-sisters. Ms Szarski noted that [X] did not refer to them. Obviously, if the children are in Queensland the opportunity for them to have a relationship with their half-sisters is greater.
Since she has relocated to Victoria the mother has obtained employment as a [omitted]. She works either a morning shift from 5 am to 1 pm or an afternoon shift from 2.00pm to 10.30pm. Occasionally she has weekend work and time off during the week. She lived with her parents initially when she moved to Victoria but now has her own accommodation. She started living with a new partner at Easter but that relationship ended before the hearing. During that time her partner helped care for children when she was at work. Now they generally sleep at her parents five nights each week. The grandparents drop them off or pick them up from school when the mother cannot.
Ms Szarski saw this as significant. She said children need stability and routine. Here the children have three sets of care arrangements, the mother, the father and the grandparents.
The willingness to facilitate the relationship with the other parent
The mother left Queensland without warning to the father which resulted in the children not seeing their father for six months.
Ms Szarski says the mother did not offer any arrangements for the children to maintain a relationship with their father after the court case and she believed she had a strong chance of succeeding in the claims. Ms Szarski said the mother could not contemplate the possibility of returning to Queensland. After some probing she conceded that "maybe some holidays", but Ms Szarski says this was said in a reluctant and unconvincing manner.
Ms Szarski said she has concerns that the mother sees little or no positive benefit for the children to have a relationship with their father but demonised him to herself, her family and to the writer. This assessment of the mother’s attitude to the father was confirmed when she was giving evidence during the hearing.
Ms Szarski expressed a concern that given the mother's extreme negative perception of the father she may find it difficult to support a positive or at least neutral view for the children and inadvertently or directly influence them with her perception should she be time the full-time carer of the children in a state distanced from the father.
Ms Szarski referred to the possible lack of post separation relationship building or retension between her daughters and their father as relevant to her attitude to maintaining a relationship with the father.
Ms Szarski says that if the mother's negative and suspicious behaviour continues unfettered the children might benefit by being in the father's fulltime care. Unfortunately, the mothers attitude to the father when giving evidence shows the negative and suspicious behaviour continues
Effect on the children of any change
The mother's move to Victoria has obviously affected the children.
Ms Szarski describes the children's relationship with their father's as strong and would suffer if the relationship is intermittent. [X] in particular has suffered from the move.
While Ms Szarski says the six-month interruption has just been repaired and it would be confusing for the children to have further estrangement from either parent, especially their father.
[X] is attending [P] primary school since coming to Melbourne.
Ms Szarski spoke to one of the staff at the school who said she was impressed with [X]'s adaptation. His happiness recently has been evident.
Ms Szarski says if the children returned to Queensland they will be returning to a familiar environment and to a familiar school.
Ms Szarski recommendation ideally is that the mother and children should return to Queensland. Ideally there should be shared care on an equal basis. She says that this is one case where despite the poor parental communication and discord the children crave and need the involvement of both parents.
Ms Szarski recommends that if the mother remains in Victoria the father move to Victoria. Unfortunately, neither party intends moving.
The practical difficulties in communicating and maintaining contact
The practical difficulties in this case exist because of the geographical distance between the parties.
The capacity of each party to care for the children
Both parties have the capacity to care for the physical needs of the children. So far as emotional needs are concerned, the mother’s emotional state and its effect on the children were observed by
Ms Szarski. Her capacity to care for the children is compromised by the nature of the employment that she has. Clearly she has to obtain employment, and it is to her credit that she has. However, what has to be considered is the effect on her capacity to care for the children. The children sleep, mostly, five nights each week, at their grand parents. Ms Szarski says this affects the stability and routine which children need.
The father works part time. He can provide more stable living arrangements than the mother.
The attitude to the responsibilities of parenthood
The mother showed little understanding of the need for the children to have a relationship with their father. She did not appreciate that her working arrangements disadvantage the children. Physically the children are well cared for with the grandparents, but the mother does not appreciate how that affects the children's stability.
Ms. Szarski found the mother's attitude to her daughters living arrangements a matter for concern. The oldest went to live with her boyfriend while still very young and then became principal carer for her younger sister when her sister was fifteen. The mother says they left because of the father's treatment of them. Even if that is correct, the mother’s attitude that the arrangements for her daughters was satisfactory shows a lack of appreciation of the need for parents to be protective of children.
Conclusion
If the children live principally with their father the living arrangements will be more stable. Their emotional relationship with their father is better than with their mother. Their father is emotionally stable while their mother is not.
A significant matter is that the mother's evidence shows that the mother’s attitude to the father has not changed from that observed by Ms Szarski. In those circumstances Ms Szarski considered that the children might benefit from being in their father's full-time care. Ms Szarski saw the living arrangements with their mother where the children spent five nights in most weeks at the grandparents as not promoting the children's stability.
The children's best interests be served by living with their father in Queensland in spending as much time with their mother as is practicable in the circumstances.
There is credible evidence that the mother has alleged she was sexually assaulted by her father when she was young. She denies ever making the allegation and denies she was assaulted. Her Father denies the allegations and his evidence is credible.
The mother was estranged from her parents for many years before moving to live with them in 2007, but this was because they disapproved of her marriage.
The mother’s statements, if made, making the allegation may be another manifestation of her personality traits observed by the professional witnesses.
Whatever she may have said, I am satisfied that there was no abuse. In particular I am satisfied there are no protective concerns about the children and no need to place any restriction on their contact with their maternal grandfather.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Paul Moss
Date: 13 November 2008
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