Westwood and Maple

[2009] FamCA 143

FAMILY COURT OF AUSTRALIA

WESTWOOD & MAPLE [2009] FamCA 143

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court – Parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Westwood

RESPONDENT: Ms Maple

FILE NUMBER: MLC 883 of 2009

DATE DELIVERED: 20 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr G.Q. Ambrose

SOLICITOR FOR THE RESPONDENT: Kennedy Guy

Orders

1. That all proceedings be transferred to the Federal Magistrate Court of Australia.

2. Until further order the child … born … October 2001 live with the mother.

3. That until further order the father spend time with the child as follows:

   (a)on each weekend;

   i.from the conclusion of school on Friday until 7.00pm on Sunday or Monday if it is a long weekend; and

   ii.from the conclusion of school on Wednesday until 7.30pm on that Wednesday;

   (b)during the April 2009 school holidays, from 3.00pm on Friday 10 April 2009 until 7.00pm on Sunday 19 April 2009.

4. That the parties attend upon and at the direction of psychologist Ms M for the purposes of an appointment on 19 March 2009 and for the preparation of a family report to be released b y 9 April 2009 at the joint expense of the parties (with a request that Victoria Legal Aid fund the mother if possible in respect of the cost of that report.

5. That my reasons for judgment this day be transcribed and be placed on the court file.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND IT IS NOTED that at the request of the parties, the matter be not listed in a duty list of the Federal Magistrates Court until after 9 April 2009 at which time, it is hoped that Ms M will have the family report available for the parties to contemplate.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 883 of 2009

MR WESTWOOD

Applicant

And

MS MAPLE

Respondent

REASONS FOR JUDGMENT

1. This dispute is about a child who was born in October 2001.  The child is therefore seven years of age.  The child has been with her father since early in December 2008 and had little contact with her mother.

2. The father's position is that the child is frightened to go home to her mother and does not want to.  The child will happily spend time one or two overnights with her mother, but even that is apparently subject to conditions, and she generally wants to live with her father.

3. The mother's position is that the child is being overheld by the father, who has made a unilateral decision to parent the child without consideration of her views.

4. There are a number of disputed facts in this case.  Consistent with authority, I cannot make a determination or finding about those matters.  I am deciding the case on the evidence before me and in particular, on the undisputed facts.

5. The father is not represented by a lawyer but said he has had legal advice.  In addition, he spoke to the duty lawyer this morning. The father had a psychologist's report which was undertaken by him without knowledge of the mother for the purposes of getting a report on the child.  Having regard to the fact that the child went to the psychologist with her grandparents and not the father, without the knowledge of the mother and having regard to what I have otherwise heard, that report can serve no useful evidentiary purpose.

6. By way of background in this case, it seems common that the mother and the father had a sexual relationship over a number of years but apart from a small period of some months, they did not live together.  They did however spend a lot of time together, particularly on weekends. Curiously, the mother says that the Child Support Agency was told that the child was in a shared care arrangement.  That may come back to haunt one or both of the parties if there has been a dishonest revenue or pension issue.

7. The child has lived with the mother on a full‑time basis but with the father on weekends and some annual holidays.  On any view that I can discern, the mother has been the predominant parent.  The mother also has twins aged 12 who have also been in the child’s life since her birth.  They curiously seem to have been ignored by the father in all of this.

8. The mother says that the father's motivation in all of this is a financial one, having regard to his obligations to the Child Support Agency.  The father says on the other hand that the mother is likely to hurt the child as he has witnessed her hurt her other children.  He says she smacks the child and is verbally abusive to her.  Ironically, I have no evidence of any involvement by the Department of Human Services.

9. I do however have a letter annexed to the mother's affidavit from the principal of the school at which the child attended last year.  That letter refers to the fact that the child began at the school in January 2007 and therefore the school had seen her during her preparatory and grade 1 years.  In a bullet point comment, the principal said that the child’s attendance at school was regular and punctual.  Her presentation was clean and tidy and she was in school uniform.  He said her lunches were appropriate and adequate and there was positive social interaction with other students.  She certainly presented as happy in the school environment and was involved in the school's learning programs.

10. The two older children also attended the same school.  According to the principal, the mother was the main carer of all three children and therefore the contact between the school and the parent was with the mother.  He said that the mother also attended the parent/teacher meetings and developed an excellent rapport with the class teachers and office staff and had also been willing to offer her assistance in school activities.

11. All of that seems to be rather oddly inconsistent with the picture painted by the father.  Importantly, leaving aside the father's concern, all would appear to be normally as one would say, domestic bliss.  The father works full‑time but has flexible hours and when he is not able to have the child in his care, she goes into after-school care or he is assisted by his parents.  For her part, the mother works as a cleaner during school hours.

12. The troubling feature of what I am asked to do relates to the fact that the mother did not bring an application in this case seeking orders until after she obtained legal aid and even then, she only applied for legal aid on 5 February, at which time the child had already been enrolled, if not already commenced school.  I do not however propose to hold that against her as a disqualifying feature and I am certain that it will become the subject of future proceedings.

13. Thus, what I have is a situation in which the child has lived with her mother as her main carer up until December.  According to the mother, in 2008 the father's role in the child’s life was, to use her words, occasions every two weeks and in addition to that, in 2008, there were three occasions when the father collected the child and had her overnight at his home.  She said that from the middle of 2008 until the end of October 2008, she recorded his overnight visits as being one in July, one in August, two in October, a two-day period in November, then a single day in November and then a further two-day period in November.

14. In December, according to the mother, and it seems consistent with the father's evidence, things changed.  According to the mother, on 4 December 2008 which was a Thursday, she had agreed with the father that he would collect the child from dancing class.  When the father did that and returned the child the mother was not at home.  According to the mother, she was delayed with dancing rehearsals for one of the other children and she telephoned the father on the mobile phone.  Some of those facts may be in dispute as well, but what is common is that when she did arrive, there was something of an argument involving another child and ultimately the father drove off with the subject child.

15. There appears then to have been a prearranged weekend that followed that Thursday night, where the child was to spend time with her paternal grandparents and that in fact occurred.  On the following Sunday which was 7 December, the child came back to her mother.  On all accounts, everything went back to normal.  There did not seem to be any problems between the parties then and that seems to be the case on both parties' accounts, until the conclusion of the school year which occurred on 18 December. 

16. There is certainly a dispute about what occurred that day but what is not in dispute is that the child went with her father.  The mother said that she was powerless to stop him and did not wish to create a scene at the school.  There is certainly a dispute about what happened over the ensuing weeks of the summer holidays.  I am unable to decipher exactly what happened and who had what telephone calls and did what, but in this case, I do not think it really matters. 

17. The father says that the mother did not contact the child and that will also be the subject of some dispute.  In her affidavit, the mother set out that she had telephoned the child on several occasions and had attempted to keep the telephone conversations light by asking her about her school.  She went on to say that she did not know where the child was attending school, nor what arrangements had been made for the child’s care outside of school.  One thing which seems clear is the father certainly did not tell the mother where the child was going to school, nor what care arrangements had occurred, and I find that extremely troubling.

18. That is the extent of the mother's relevant evidence, other than to say that she denies the abuse assertions of the father.  The father's evidence is set out in the affidavit which he filed on 4 February 2009.  He set out the past living arrangements between the child and the mother, along with the other children.  He described the home as a Housing Commission house with three bedrooms, where the kitchen doors were off their hinges, tiles were falling off walls, there were nails hanging out of fences, tiles were lifting from floors and there was a continuous sewer problem with excrement in the backyard on occasions. In contradistinction to that, he was living in a house where the child would have her own bedroom.

19. In his affidavit, he went on to say that there had been a shared care arrangement between the father and the mother, but on any view, it is certainly not an equal time arrangement, nor is it one in which I could say that the responsibilities carried out by each party were anywhere near equal.  What the father then went on to say was that the current arrangements were that the child was living with him and had contact with the mother on special occasions and by phone, and on the special occasions, he initiated those arrangements.  That does not seem to be consistent with what has been occurring.

20. In respect of the proposals for future arrangements, he said that the mother was to have the child every second weekend, providing there was no violence or abuse, hence my earlier comment about his conditional suggestions. 

21. In relation to the past activities - and this is relevant to the question of why I refused the psychologist's report being admitted into evidence - he said that the child had attended counselling with a school counsellor, but he was not notified, and when he asked what was happening about the school counsellor, the  mother replied, "Which one?"  He said he did not know how many school counsellors the child had been to see when she was with her mother.

22. There are two curious features about that piece of evidence and no doubt this will be clear in any future hearing.  The first is if he was having regular time, it is odd that he did not know those facts, in addition to which I find it puzzling that he did not attend the school to find out all of the things about which he was raising with the mother.  The second thing is that it is quite different for a child to go to a school counsellor, on the referral from a principal or teacher from a psychologist that the father was pursuing.

23. In his evidence, the father said that he had seen the mother kick, smack, hit and verbally abuse the two older children and verbally abuse and physically smack and hit the subject child.  He then set out what he said occurred on 4 December and returning the child home, finding the mother not there.  He said that when he said goodbye to the child, he drove off and then heard a scream.  Looking back in the mirror, he saw the child screaming, standing on the verandah and crying.  He then returned, the child jumped in the car and he said that he took her away.

24. There is perhaps nothing unusual about that, other than the fact that there was clearly no parental responsibility exercised nor any discussion between parents.  He added that he then telephoned the CSA - by which I presume he meant the Child Support Agency - and when they were not there, as one might understand at 9 o'clock at night, he then called DOCS, which I presume he meant was the Department of Community Services in New South Wales.  Again, why a parent would not contact the other parent escapes me.

25. This is not a case where I could find, even on the untested evidence, that there should be a change in this child's way of daily life and certainly not on the basis of a unilateral decision.  I find even on the limited evidence that the mother has been the person responsible for the child’s daily care.  It is certainly not appropriate to simply change a significant way of life for a child just because as a seven-year-old, she says she is frightened or unhappy, particularly in circumstances where there has been no dialogue between the parents.  It behoves parents to sit down and work out what the problem is, and that certainly did not happen here.

26. Part VII of the Family Law Act is what tells me what I am obliged to do in this case. Section 64B sets out what sort of parenting orders a court can make and how they are to be made. But the principles underlying Part VII are set out in s 60B. The objects are to ensure that the best interests of the children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. It is also an object to protect children from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence.

27. Even on the basis of what the father has said in this case, I have some concerns about the mother's household, but not on any basis such that I could make any adverse findings.

28. It is important also to understand that the objects of the section are also to ensure that children receive adequate and proper parenting.  That does not seem to be happening in this case.  Parents are also obliged to ensure that every decision they make about their children is directed not only for the best interests of the child generally, but also that children have a right to know and be cared for by both of their parents and to spend time with their parents on a regular basis.  That is not happening here either.

29. The underlying object of the law is to ensure that parents jointly share duties and responsibilities concerning the welfare and development of their children.  That certainly has not happened here.

30. The fundamental tenet of the Family Law Act in relation to parenting of children is that parents should agree about the future parenting of their children if they obviously can. I am very curious as to why something happened in December that has stopped all of that occurring.

31. Section 60CA of the Act says that in deciding whether to make a particular parenting order in relation to a child, a court must consider the best interests of the child as the paramount consideration.  I am then referred to s 60CC which sets out primary and additional considerations.  The first primary consideration is whether there is benefit of the child having a meaningful relationship with both parents.  As a result of the orders I propose to make, both parents will have a relationship with the child and it will depend upon what they do as to how meaningful that is.  At the present stage, however, I can only say that it seems that the child is only having a relationship with one of her parents.

32. Clearly, it is another primary consideration to protect the child from physical and psychological harm.  The father certainly makes allegations about physical harm but there are also psychological considerations as well.  I am not at all clear on what that evidence will be.

33. The additional considerations thereafter, include the views expressed by a child.  Having regard to the fact that the child is seven years of age, I would be surprised if any psychologist would tell me that I should give significant weight to the sort of considerations that I need to make. 

34. I am obliged to consider the nature of the relationship with each parent.  Apart from the fact that the child has indicated to her father that she is frightened of her mother, there does not seem to be any other reason why both parents could not have a significant role in this child's life.

35. Another consideration is 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.  All the evidence seems to suggest that prior to December 2008, there were no problems about the mother encouraging a relationship between father and child, but I cannot say that I find the same in relation to the period subsequent to that on the part of the father.

36. I expressed earlier my concern about what impact any change there would be in the child’s life by being separated from either of her parents.  It seems to me the appropriate course of action is for the child to go back to the starting line where she was prior to December 2008 and the parents act as they should have in the first place.

37. There is no logical reason why the father cannot have an ongoing and significant role in the child’s life, because on what he told me, he is living reasonably close by to the mother.  I do not propose to make any findings about the attitude to the child and the responsibilities of parenthood, other than those things that I have already mentioned, but I have a feeling of disquiet about what has been going on.

38. I want to stress that I am not diminishing the importance of family violence.  If it turns out that the father's evidence is right about what has been happening in the mother's household, it does not augur well for the child’s future. 

39. In my view, it would be in the best interests of the child therefore to live with her mother on a full‑time basis as she was, but to have significant and set time so that there is no further argument between the parties, certainly with her father.

40. In every case, however, the law requires that I start under s 61DA that a presumption should be applied that it is in the best interests of the parents to have equal shared parental responsibility for a child such as this child.  The Act provides for the rebuttal of the presumption if there is a finding of family violence.  In this case, I am not prepared to make a finding that that has occurred from the evidence that I have before me.

1. However, s 61DA(4) says that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.  At this stage, on the matters that I have already expressed, it would not be appropriate for the child's parents to have equal shared parental responsibility and therefore I rebut the presumption on an interim basis.  That is not to say, however, that a court, having an opportunity to examine all of the factors in this case, might not make an order that it is appropriate for both parents to act in a shared way in relation to the future decisions for the child. 

2. In the circumstances, it is appropriate that I make an order that the child be returned to her mother and that she spend time with her father, at least on a weekly basis, if that can be arranged.

3. I started out this morning by also indicating to the parties that this is a case that should have been in the Federal Magistrates Court in the first place and I propose to transfer it accordingly.  I am going to give the parties an opportunity now to sit down and work out what arrangements they can make between themselves in relation to what time the father is to spend with the child and the formal arrangements in relation to the handover of the child back to her mother.  I will give the parties some time to do that.  If they cannot, then I will set the parameters for the future, pending further determination by the Federal Magistrates Court of Australia.

I certify that the preceding Forty Three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:  Elizabeth Hore

Date:  26 February 2009