Wright and Samuel (No.2)
[2014] FCCA 1519
•23 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WRIGHT & SAMUEL (No.2) | [2014] FCCA 1519 |
| Catchwords: FAMILY LAW – Children – mother’s second application to have child live with her in Victoria – earlier hearing in 2009 – child’s views – whether one consideration can be determinative. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC |
| KB & TC (2005) FLC 93-224 Carpenter and Lunn (2008) FLC 93-382 Chappell and Chappell (2008) FLC 93-377 Godfrey & Sanders [2007] FamCA 102 Hall & Hall (1979) 5 Fam LR 609; FLC 90-713 Mills & Watson [2008] FMCAfam 2 Samuel & Wright [2009] FMCAfam 1170 Sproat & Brimm [2013] FCCA 1823 Taylor & Barker (2007) FLC 93-345 |
| Applicant: | MS WRIGHT |
| Respondent: | MR SAMUEL |
| File Number: | DGC 1698 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 5 & 6 February 2014 |
| Date of Last Submission: | 6 February 2014 |
| Delivered at: | Launceston |
| Delivered on: | 23 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Swart |
| Solicitors for the Applicant: | Robin Harrison & Associates |
| Counsel for the Respondent: | Mr G Tucker |
| Solicitors for the Respondent: | Grant Tucker |
| Counsel for the Independent Child’s Lawyer: | Mr P Welch |
| Solicitors for the Independent Child’s Lawyer: | Philip Welch |
ORDERS
That save for Order No. 3 thereof, the Orders of this Court of 20 November 2009 (“the 2009 Orders”) remain in full force and effect.
That Order No. 3 of the 2009 Orders is discharged.
That [X] born [omitted] 2003 (“the child”) is to spend time and communicate with MS WRIGHT (“the mother”) as follows:
(a)In Victoria for four weeks during the child’s long summer school holidays, commencing on 28 December in odd numbered years and commencing on 22 December in even numbered years;
(b)In Victoria for one week during the child’s school holiday at the end of Term 1 each year (“the mother’s week”), provided that if that school holiday includes the Easter weekend (Good Friday to Easter Monday), the Easter weekend shall be included in the mother’s week in even numbered years;
(c)In Victoria during the Tasmanian Easter school break in even numbered years when that Easter school break does not coincide with the child’s school holiday at the end of Term 1;
(d)In Victoria for two weeks during the child’s school holiday at the end of Term 2 each year;
(e)In Victoria for one week during the child’s school holiday at the end of Term 3 each year;
(f)At such other times as may be agreed between MR SAMUEL (“the father”) and the mother from time to time;
(g)In Tasmania at other reasonable times upon the mother giving the father reasonable notice of her intention to be in Tasmania;
(h)By telephone or internet at any reasonable times.
That the mother’s Application filed 7 June 2012 and the father’s Response filed 13 July 2012 are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wright & Samuel (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
DGC 1698 of 2012
| MS WRIGHT |
Applicant
And
| MR SAMUEL |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant in this matter is MS WRIGHT (“the mother”) and the respondent is MR SAMUEL (“the father”) and this is the second time that it has fallen to me to decide whether their child [X] born [omitted] 2003 (“the child”) should live with the mother in Victoria or with the father in Tasmania.
After a three day hearing in 2009, I provided the parties with written reasons why I considered it to be in [X]’s best interests to remain living in Tasmania with his father.[1] For convenience I will refer to those written reasons as “my earlier decision”.
[1] Dated 20 November 2009 and published in anonymous form as Samuel & Wright [2009] FMCAfam 1170
The orders that I made at that time were as follows:
(1) That MR SAMUEL (“the father”) and MS WRIGHT (“the mother”) have equal shared parental responsibility for [X] born [in] 2003 (“the child”).
(2) That the child is to live with the father, with such to commence at the end of the current Tasmanian school term or when the mother moves to live in Victoria, whichever is the sooner.
(3) That the child is to spend time and communicate with the mother as follows:
(a) In Victoria for five weeks during the child’s long summer school holidays, commencing on 28 December in odd numbered years and commencing on 22 December in even numbered years;
(b) In Victoria for two weeks during the child’s May/June school holiday each year;
(c) In Victoria for one week during the child’s August/September school holiday each year;
(d) In Victoria for at least half of the child’s Easter school break each year as agreed but failing agreement during the first half in even numbered years and the second half in odd numbered years;
(e) During other reasonable times in Tasmania upon the mother providing the father with reasonable notice of her intention to be in Tasmania;
(f) Telephone or internet communication at any reasonable times.
(4) That for the purpose of the preceding Order hereof the parties are to contribute to the costs of the airfares for the child (and any necessary accompanying person) as may be agreed between them, but failing agreement the mother is to book and pay for such airfares from Tasmania to Victoria and the father is to book and pay for such airfares from Victoria to Tasmania.
(5) That each party is restrained from denigrating the other parent in the presence of the child or from allowing the child to remain in the presence of any person denigrating the other parent.
In my earlier decision, I set out the background to the matter as follows:
The parties commenced their relationship in 2002. The child was born in late 2003. The parties married in January 2006 and separated in January 2007. Both have re-partnered.
The father and his new partner have had a child; a daughter ([A]) who was born in 2008. The mother and her new partner have had two more children; a son ([Y]) born in 2008 and a daughter ([Z]) who was born approximately one month before the hearing of this matter.
Since the parties separated, the father has had regular contact with [X], apart from two extensive periods when the mother unilaterally stopped contact, contrary to the father's wishes. I shall refer to that more below.
The mother wishes to leave Tasmania to live in Victoria with her new partner. She wants to take [X] with her, but she made it very clear that she will be moving to Victoria with her other two children even if she is not allowed to take him to live there.
Since that time, [X] has been living with his father in Tasmania and visiting his mother in Victoria in accordance the orders of 20 November 2009.
The father has continued to live in Launceston, Tasmania with his family. He is employed full-time and his partner, Ms H, works part-time when he is available to look after the children. Since my earlier decision, the father and his partner have had two more children and at the time of the hearing they were expecting another child in April 2014.
The mother lives in [suburb omitted], Victoria with her partner and two children. She does not work outside the home. Her son, [Y] has been diagnosed as being autistic. Her partner, Mr A, is employed full-time.
The mother filed her current application to have [X] live with her approximately 2½ years after my earlier decision. It was filed in Dandenong on 7 June 2012, and shortly thereafter an order was made by consent transferring the proceedings to be heard in Tasmania.
A meeting with a Family Consultant on 29 October 2012 did not resolve their dispute, so the court requested that an Independent Child’s Lawyer (“ICL”) be appointed. That order was made on 28 November 2012 and the Legal Aid Commission of Tasmania re-appointed Mr Welch (who had been the ICL in 2009).
A Child Inclusive Conference with Senior Family Consultant [name omitted] (“the Family Consultant”) on 3 April 2013 did not resolve the parties’ dispute. The report of that Conference is dated 16 April 2013 (“the CIC Report”).
On 19 August 2013 a Family Report by the Family Consultant (“the Family Report”) was released to the parties and the ICL, and this matter came on for hearing on 5 February 2014.
The positions of the parents and the ICL
At the start of the hearing, the orders sought by the mother were:
1. That the parties have equal shared parental responsibility for the child …
2. ·That the child live with the Mother in Melbourne.
3. That the child spend 8 and a half weeks with the Father during the school holidays.
4. Any other times to be agreed between the parties.
The mother appeared to base her case for a change of [X]’s residence from Tasmania to Victoria almost entirely upon [X]’s expressed views in relation to the matter. That was expressed in the Case Outline submitted on her behalf as follows:[2]
The child [X] is 10 years and 3 months of age. He was in the primary care of the Mother up until 2009 and now at age 10 years and 3 months he is expressing a strong wish to live with the Mother in Melbourne. He states he has a stronger relationship with his Mother. He has a strong relationship with his siblings in Melbourne, [Y] and [Z] and he has expressed that wish on two occasions, at the 11 F conference and at the Family Report and also when he spoke with the Independent Children’s Lawyer to live with his Mother in Melbourne.
and
If the Court were not to order a change of residence there is a possibility that the child will feel resentful. The child has been asked on a number of occasions what his wishes are and he may feel that he has not been listened to and that his views are not important if there is no recognition that he has strongly advocated for living in Melbourne with his Mother.
[2] See pages 4 and 5 of her Case Outline
The orders being sought by the father were:
1. That the Initiating Application filed by the [mother] … be and is hereby dismissed.
2. That Order 3 of the Orders dated the 20th November 2009 be revoked and in lieu thereof the following substituted:-
That the child is to spend time and communicate with the mother as follows:-
(a) One week in each of [X]’s mid term school holidays;
(b) Three weeks during [X]’s Christmas school holidays commencing from the 22nd December in even years and from the 2nd January in odd years;
(c) Telephone or electronic communication at any reasonable time;
(d) For periods in Tasmania to be agreed upon the provision of reasonable notice;
(e) Such further or other times as agreed between the parties from time to time including any reasonable time in Victoria.
The father’s case was essentially that [X] is well settled in Tasmania and “It is in dispute that [X] has consistently expressed a wish to live with the mother. Certainly, it is accepted that [X] may have said that to the mother at or about holiday times”.[3] Further, his Case Outline stated that, in view of [X]’s age, any views expressed by him should “be given minimal weight or no weight in the circumstances”.[4]
[3] Father’s Case outline at paragraph C3
[4] See paragraph C4(a)
In the Case Outline filed by the ICL, he stated that there is evidence “that [X] has a strong relationship with each of his parents and that he feels a ‘special connection’ to his Mother” and that “he is wishing to live with the Mother in Victoria”.[5]
[5] ICL’s Case Outline at paragraphs 10 and 11
The ICL said this at paragraph 12 of his Case Outline:
The Court will need to consider, having heard the evidence, whether or not nevertheless it is in [X]’s interest to act on those views especially as he is in a loving and stable household in the care of the Father and his partner … and has been since the orders made in November 2009.
The ICL then expressed a tentative view, without then having had the benefit of hearing the parties or the Family Consultant, that there ought to be no change to the residential arrangements for [X].[6] After hearing the evidence, the ICL expressed that as a firm view.
[6] ICL’s Case Outline at paragraph 13
Terminology
In my earlier decision, I referred to Carpenter and Lunn, and Chappell and Chappell and Mills & Watson,[7] indicating that I saw grammatical common sense in using the term “contact” interchangeably with “spend time”. I still see sense in using those terms interchangeably.
[7] Carpenter and Lunn (2008) FLC 93-382, Chappell and Chappell (2008) FLC 93-377 and Mills & Watson [2008] FMCAfam 2
I will also simply refer to the two days of the hearing as “Day 1” and “Day 2” where appropriate.
The evidence
I had before me the following affidavits:
·For the Mother: two from the mother and one from her partner;
·For the father: one from the father and one from his partner; and
·For the ICL: one affidavit from the child’s 2013 school teacher.
The parents and their respective partners were cross-examined but the teacher was not.
In addition, the CIC Report and the Family Report by the Family Consultant were admitted into evidence. The Family Consultant was cross-examined.
Relevant law
As stated in my earlier decision, proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”) and section 60CA provides that the court must consider the best interests of the child as the paramount consideration.
I do not propose to repeat what I said about the applicable law in my earlier decision. However, there have been some amendments to the law since that time. Item 45 of Schedule 1, Part 2 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the Amending Act”) provides that the amendments made inter alia by Items 17 to 21 of Part 1 “apply in relation to proceedings instituted on or after commencement”. In other words, the amendments to section 60CC of the Family Law Act 1975 do not apply to proceedings instituted before 7 June 2012.
Significantly, however, these proceedings were commenced on 7 June 2012, being the very first day upon which the amendments took place.
As the title to the Amending Act suggests, most of the amendments relate to family violence issues. I dealt with family violence in my earlier decision and there is nothing to suggest that it has any further relevance now. For that reason, I am of the view that only one of the amendments to section 60CC is of any particular relevance to this matter now – that being the substitution of paragraph (c) which formerly read:
(c) 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;
with
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Having said that, the section still contains paragraph (m) which refers to “any other fact or circumstance that the court thinks is relevant”, so the willingness and alibility of each parent to facilitate and encourage a close and continuing relationship between a child and the other parent can still be taken into account in appropriate circumstances.
I note again that the Court is not restricted to considering only the proposals put forward by the parties.[8]
[8] See paragraph 25 of my earlier decision and KB & TC (2005) FLC 93-224.
In deciding what orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit of having meaningful relationships with both parents
In their Case Outlines, both parties appear to recognise that the child needs to maintain a meaningful relationship with the other parent. However, while the mother states that she is “well aware of the need for the child to continue a strong relationship with the Father and she does support and will continue to support that relationship”,[9] the father expresses a concern that the mother may not adequately support his relationship with the child.[10]
[9] At page 4 of her Case Outline
[10] See paragraph 3(a) of his Case Outline and paragraph`26 of his affidavit.
I am satisfied that both parties consider it to be important for [X] to maintain a meaningful relationship with the other parent. However, I also share some concerns about the mother’s ability to promote his relationship with his father, so I will discuss that further below.
Protecting the children from harm from abuse neglect or family violence
There is nothing to suggest that the child is abused or neglected in either household, and as stated above, I dealt with family violence in my earlier decision. There is nothing to suggest that family violence has any further relevance now.
Relevant additional considerations
The child’s views
As stated above, the mother appears to base her case almost entirely upon [X]’s expressed views in relation to where he should live.
In her affidavit filed on 18 December 2013, the mother had said:
17. I say that [X] after a period of 12 to 18 months became more accepting of the situation that he was to live with his father, however, over the past 18 months he has become more and more vocal about his desire to live with me. He has been telling me things about what is happening at this father's home which I now acknowledge may well be him making up stories in order to support his case for returning to Melbourne nevertheless. The dynamics of the Father’s family has changed substantially since he was first living with his father in that there are now three very young children living in that household with him and another on the way. He has become increasingly resistant to getting on the plane to return to his father. He becomes very clingy, very tearful and tells me that he does not want to go home and he wants to miss his flight…
18. Whilst I do not talk to [X] about the court hearing he is well aware of the fact that I have made an application for him to come to Melbourne and he keeps asking me what has happened, why is nobody listening to him and saying he would like to speak to the Judge and tell him that he wants to live in Melbourne…
In his trial affidavit, the father said this in relation to the child’s views:
11. [X] has said to me in the past that he would like to live with his mother but these conversations have only occurred upon returning home from a recent visit with his mother. He would often say he wanted to live with her when he is being told off within the first week or two of returning from a visit with his mother. I am aware that [X] has spoken to his Lawyer as well, with the same response but he had also only just returned a few days earlier from a five week stay with his mother. [X] has also mentioned in conversation that it is not always better at the “other place”.
12. [X] has mentioned on several occasions that he would like to go to [R] High School in Tasmania. He has never mentioned anything about wanting to go to a High School in Victoria. Although he has mentioned [R], he may well end up at [omitted] High due to the school zones and [X] is aware of this.
13. I still believe [X] is far too young and immature to know what is best for himself. He is unable to make a simple decision such as what to wear on a 25 degree day let alone where he should permanently live.
On 3 April 2013 the Family Consultant had said the following in the CIC Report in relation to [X]’s expressed views:
[X] said that at the end of his holidays with his mother he feels that he wants to stay longer and when asked how much longer, he mentioned a week or two weeks. He added that he does like coming home (to his father) “if (there is) something to come back for” and then mentioned the Christmas presents he has left behind when going to Melbourne to spend time with his mother.
[X], as is typical of a child of his age, was quite materially focussed. He spoke of the outings he goes on when on holidays with his mother and the money he can obtain there by keeping his room tidy.
The family consultant drew a scale from 0 - 10 and established that [X] understood that 10 was the maximum or highest score and 0 was the lowest score and that he understood what was meant by being “very, very close” or “not at all close” emotionally to a family member.
On the scale [X] rated his mother at 9 and said that he was closest to her, that he has “more feelings” with her. [X] rated his Dad and [Ms H] the same - 7 - and went on to state that he would just “prefer to live with Mum” and mentioned feeling happier there. He said that there were “no little siblings to annoy him” because his mother “got them stuff to keep them busy”. When asked if his father knew his views, [X] responded that he did and that his father had explained that being in his father’s home was because “it’s where the judge said it’s best to live”. When asked what he would miss if he did not live here with his father, [X] responded “my toys, my stuff”. When the family consultant asked whether he would miss his friends, [X] said that he would still see them (meaning on visits) and when asked about missing his father and [Ms H], [X] said “Yeah a bit”.
[X] was specifically asked about whether he had any problems or worries living with his father and he said “No - I just want to live with Mum”.
She went on to say:
There was some complexity in assessing [X]’s views. Child inclusive assessments are considered preliminary assessments provided by Child Dispute Services. The family consultant had not previously met either of the parents or [X]. He is a young boy of nine years and somewhat serious in nature. Early in the interview he appeared to have accepted his situation and his father’s explanations about it. Later on in the interview he spoke more of his connection with his mother. There did not seem to have been any obvious influencing or coaching of [X] by either parent, rather, his thoughts and comments appeared to “unfold” as the interview progressed.
It may be that he has been influenced by factors such as the positive and fun times he has on holidays with his mother. One of the attractions for him of visits with his mother may be her greater ability to extend him with activities and conversation during their time together (than the father and his partner provide). His mother is quite articulate in expressing herself and has a very positive and enthusiastic presentation which would be stimulating for [X].
[X] obviously considers that his times with his mother are “special” and this is not solely accounted for by the fact that he might get somewhat spoilt as his mother has missed him. [X] continues to feel closer to his mother despite it being three and a half years that he has been living with his father.
However, the Family Consultant also stated that there is some complexity in considering the child’s best interests which cannot be adequately addressed by a CIC assessment. She went on to recommend that a more thorough Family Report might be of assistance if the mother wished to pursue her application. Not surprisingly, a Family Report was obtained.
The Family Consultant said this in the Family Report:[11]
Ms Wright has tended to spoil [X] with plenty of attention, presents and exciting activities when she sees him. She reported that she likes going on different outings at weekends with her family and so this is likely to continue for [X] if he lives in her household. This contrasts somewhat with the more routine aspects of life for [X] in his father’s home where there are regular routines such as [sport omitted] training and games and so forth and possibly not as many outings. It is beneficial to children to play a sport or have a regular interest which involves commitment and so on.
[X] is used to being treated as very special when he spends time with his mother. It is likely that this would alter and the mother’s parenting techniques would need to change if [X] were to be in her care and the realities of everyday life have to be accommodated. There may be some resentment from the other two children or even the mother’s partner if this did not alter. [X] may become more challenging to manage if he is not getting his own way or the special attention he has become used to from his mother.
[11] At paragraphs 48 and 49
She went on to say:
Due to his special relationship with his mother, [X] is at times treated as being older than nine years by her. However he is still only a young child. Hence his views about wanting to live with his mother require careful weighing up in the context of his experiences in each home.[12]
[12] At paragraph 50
When the Family Consultant was cross-examined by the mother’s counsel, this exchange took place on Day 1:
Question: In both your reports, you note that [X] conveyed to you on both occasions and more than once in each occasion he has had strong wishes to live with his mother; is that correct?
Answer: Yes. He said that he would prefer to live with his mother.
Question: And what did you understand to be his reason for preferring to live with his mother?
Answer: I think that his reasons and his experiences of his mother is that they have a close relationship and … when he’s with her, he feels special. He enjoys his relationships with his siblings there and his extended family there. He enjoys the exciting outings and the electronic equipment that he has there. So there were, you know, several reasons, if you like, that he gave for that preference.
Shortly after that, this exchange took place:
Question: When you go through all of [X]’s reasons and the logical things that he can say, the outings, the relationships with the siblings and the things that he can do in mum’s house compared to the things in dad’s house, really what it comes down to, in his case, is that he just wants to live with his mother because he feels the closest to her of everyone in the world, isn’t it?
Answer: Well, possibly. Kids in his age bracket are very influenced by other things as well and in [X]’s case, quite significantly. And I suppose the difficulty with evaluating that is that his time with his mum has been holiday time for some years now, when parents do plan special activities and outings and spoil the child they haven’t seen and so on. So his experiences in his mother’s household are of a young boy who is celebrated, if you like, and loved very much. But he’s also loved very much in his father’s household, where there is a different routine and a different – you know, the school and all sorts of other aspects of life that are part of his experience there and where he also feels very close to his father and his stepmother and they rated, as I said, as an eight. So [X]’s experiences also, I think, have been affected by things like the emotional exchanges with his mum. For example, when he’s leaving her there’s usually lots of tears on both sides and that can influence a child as well, in terms of the other parent needing them or feeling that connection because their mother is so upset and they’re, therefore, upset and so on. And I think that has all been part of his experience with his mum.
This exchange took place during the cross-examination by the mother’s counsel later on Day 1:
Question: Again in your family report assessment he rated his mother as the person that he felt the closest to. Is it not then entirely possible that the continued expression of his wish to live with his mother is him expressing the deep wish of his heart?
Answer: Look, I think that is putting [the question] in a very emotionally-laden way. I think that he is happy where he is. He has got good friendships and he loves his father and his [stepmother]. He loves his mother and as I said, he expresses a closeness to her that has the edge over his relationship in that sense with his father and his stepmother. Now, he is not a mature child. He is very attracted to aspects of the life in Melbourne, and … for him to try and compare those two experiences is … just impossible, really. So there is no magical age at which a child’s wishes therefore become incredibly significant …
It is important to remember that this “additional consideration” also requires the court to take into account factors other than a child’s simple statement of view. Section 60CC(3)(a) reads as follows:
(a) 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;[13]
[13] My emphasis
It is also important to note that the child’s views must also be weighed against the other considerations set out in section 60CC and I will refer below to the circumstances in which just one consideration might become decisive in determining the outcome of a matter.
The relationships of the child with the parents and other people
In her discussions with the child for both the CIC Report and the Family Report, the Family Consultant asked the child to rate his relationships with his parents and other people on a scale of zero to ten, where zero represents being “not at all close” to that person and ten is “very, very close” to that person. When she was asked to explain the scale during her cross-examination by the mother’s counsel, the Family Consultant said this:
It’s a very simply visual technique to use with children. I draw a line on the whiteboard in the office. At one end of the line is a zero and at the other end of the line is a number 10 and I used it on both occasions when I saw [X] - for the Child Inclusive Conference in the April and then for the Family Report interviews in the August. And, usually, at one end of the scale the zero represents not at all close to a family member or another significant person and a 10 is very, very close to a family member or another significant person. And I establish that a child understands what is meant by closeness and sometimes that needs a bit of talking through with the child, what that means. And then, I get the child to plot where different people are in relation to the zero and the 10. When I did that with [X], there was a shift in terms of how he perceived his father and [Ms H] (his father’s partner). They moved up to eight; both of them were at an eight. The mother remained higher than that on a nine and the mother’s partner, Mr A, was a six on that at the August assessment. So I guess, in a sense, that also shows the difference in relationships between the two households. In his mother’s home, his mother is the focus for him, in his father’s home, the closeness he feels is balanced between his father and his stepmother and there’s a less close relationship with his stepfather, Mr A.
The Family Consultant had said this in the Family Report about [X]’s relationships with the significant people in his life:
38. [X] was asked to undertake the ratings scale that he had previously completed (at the child inclusive conference) in relation to family members, without reference to what he had done a few months earlier. This time friends were included as well. As he had done previously [X] rated his mother at 9 (the highest score reflecting whom he felt closest too) then this time he rated his father and [Ms H] as 8 (previously 7), [Mr A] was still rated 6, [Y] was 7½ again and [X] said “I really love him, he’s so cute and funny, I love playing with him”. Similarly he gave [Z] a 7 and said that she was “really funny”. The other children have increased in ratings from the previous time. As regards friends, [X] has two very significant friends – [W] and [N]. He said that [W] was his friend at school and rated him an 8 and [N] is a neighbourhood friend who goes to a different school and he commented that they were best friends and “I like him as much as my brother” (meaning [Y]) and gave him 7½.
39. [X] seemed more favourably disposed to his Melbourne half-siblings than his Launceston ones. This may in part be due to the constancy of sibling issues when living around the clock with one another as compared to holiday visits with siblings. It may also be because his mother probably keeps his connections to [Y] and [Z] alive for him by telling him stories about the funny things they do.
It is clear from all the evidence that [X] has very close relationships with his mother, his father, his father’s partner, his siblings and two friends. His relationship with his mother’s partner was rated by him as being less close, but I surmise that his lower rating for his stepfather may well be a product of the fact that his stepfather works and as a consequence contact between them is more limited than his contact with the other three significant adults in his life.
The extent to which each parent has taken part in decision making about the child, or spending time or communicating with the child
These parents have clearly demonstrated that they wish to be very involved in [X]’s life, so I need say no more about this consideration.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Nothing appears to have changed in relation to this since my earlier decision. Essentially, the options of [X] living in either Victoria or Tasmania still involve similar difficulties and expense in relation to his contact with the parent with whom he will not be living.
The capacity to provide for the child’s needs
In my earlier decision I said that I had no doubts about either party’s capacity to provide for [X]’s physical and intellectual needs. I have no reason to change that view.
The parenting capacities of all four significant adults in [X]’s life were well summarised in the Family Report as follows under the heading “Evaluation”:
43. [X] is a young boy who feels a “special connection” to his mother. She feels the same about him. His father also acknowledges that [X] is close to his mother. Mr Samuel and his partner are caring parents of all four children. Ms H was impressive as a stepmother to [X]. She obviously loves him and is skilled at the challenges of being a parent to all four children. She was sensitive to the issues for Ms Wright and [X], living apart from one another.
44. Mr Samuel, in contrast to Ms Wright, does not show his feelings readily. However he is quietly and strongly committed to his family. He has apparently involved himself with the school for [X]’s benefit and in [X]’s [sport omitted]. He has a loving relationship with his younger children and showed much delight in his youngest daughter … when seen in the playroom with her.
45. Ms Wright and Mr A are also caring and committed parents. It appears that Ms Wright undertakes the major share of the parenting tasks being full time at home (as does Ms H in the other home) and is acknowledged by Mr A as highly skilled as a parent. They jointly participate in weekend activities and each alternate weekend they have care of Mr A’s two other daughters.
It is clear from the family report and all the evidence during the hearing that [X] is very fortunate to have four loving and competent adults in his life. However, that is not to say that they are perfect, because no parent ever is.
The Family Consultant was clearly surprised that when the mother came to Tasmania for the Family Report interviews, she had not tried to make any arrangements to spend time with [X] until the Family Consultant raised the issue. In relation to that, the Family Report states:
She gave various explanations including that she had to return to Melbourne for [Y] to go to school and for her partner to return to work. It is surmised that possibly Ms Wright is at times too busy with her family life to fully appreciate [X]’s needs, or that possibly, her priorities get confused sometimes.
In the Family Report, the Family Consultant clearly suggested that the mother has a tendency to spoil [X] when he is with her. She said this:[14]
[14] At paragraphs 48 and 49
Ms Wright has tended to spoil [X] with plenty of attention, presents and exciting activities when she sees him. She reported that she likes going on different outings at weekends with her family and so this is likely to continue for [X] if he lives in her household.
and
[X] is used to being treated as very special when he spends time with his mother.
During her cross-examination, the Family Consultant also suggested that the mother sometimes may not set appropriate boundaries in relation to [X]’s behaviour and expectations. She said:
[X] is a complex child, challenging child in a school environment. I think he presents challenges in the home environment as well, and he does like to get his own way. He does push the boundaries in his behaviour, and in that regard, I think that it’s more complex than him wanting to go and live with his mum and therefore if we valued and listened to him, he should go. I think it’s a lot more complex than that, and we need to look at his behaviour in a broader context than that this all might be to do with him wanting to live with his mum, because it’s not just that. It’s his way of being in the world that needs consistent boundaries, as the teacher talked about, and clear expectations, and one of my concerns is that, with his mother, he pushes the boundaries and gets his own way more than is the case with his father and his stepmother.
When a child is not seen as often as a parent might like, it is easy to understand why that parent may spoil the child or set unrealistic boundaries to behaviour. However, it is quite clear to me that in this case the mother needs to give more thought to the way in which she gives [X] such special attention, because it may not always be in his best interests.
The attitudes of the parents to the child and parental responsibilities
I was impressed by the unchallenged affidavit evidence of the child’s teacher. Because that evidence was unchallenged, I do not need to repeat it here. However, it showed in very clear terms how committed the father and his partner are in relation to [X]’s welfare generally, and to improving his education outcomes.
However, in saying that I am not being critical of the mother’s attitude to the child’s education. The teacher acknowledged that the mother may have spoken on a number of occasions to the school principal.
Any family violence involving the child or family member, and any family violence orders
As stated above, there is nothing to suggest that family violence has any relevance in relation to this matter now.
The likely effect of any change in the child’s circumstances
The Family Consultant said this at paragraph 49 of the Family Report:
[X] is used to being treated as very special when he spends time with his mother. It is likely that this would alter and the mother’s parenting techniques would need to change if [X] were to be in her care and the realities of everyday life have to be accommodated. There may be some resentment from the other two children or even the mother’s partner if this did not alter. [X] may become more challenging to manage if he is not getting his own way or the special attention he has become used to from his mother. [X] has a good relationship with [Y] and [Z] but it is likely that the frustrations he experiences with [A] at times would be similar to what he would experience if he were to live full time with [Y] and [Z] in the future. [Y] appears to be progressing well but he still faces many challenges in life given his autism spectrum disorder. He requires a lot of extra time and attention which would likely impact on the amount of attention that [X] would receive from his mother.
In my view, that paragraph summarises much of the risk involved in changing [X]’s residence from Tasmania to Victoria. As things stand, [X] is well settled in the home of his father and stepmother. In my view, it would be a mistake to take that risk.
Is it preferable to make an order least likely to lead to further proceedings?
The Family Consultant suggested in the Family Report that “the arrangement could be looked at again in the future when [X] is more mature” and that it could “be appropriate for such a move to be undertaken when he completes Grade 6 and would be moving to a new school anyway for his high school years”.[15]
[15] At paragraph 52
In my view, it would be a mistake for the court to flag that as a possibility at this time. That is because:
·it would create a significant period of unnecessary uncertainty for [X] and everybody else involved in this matter (and none of them need possible further litigation hanging over them like a Damoclean sword); and
·it would be likely to give the mother some false hope that could again be dashed.
It is important to remember that [X] is only 10 years old and will not be moving to high school before 2016. In addition, he clearly has some good friends in Tasmania (who rate as highly as his siblings on his 0 to 10 scale), and he is very involved in his [sport omitted]. It is just not possible to predict the circumstances that will pertain towards the end of next year, so the court must deal with a situation in which [X] is generally well settled in his father’s household and happy and well supported at school.
I should also point out that when she was cross-examined by the ICL, the Family Consultant said:
… at the moment, what’s needed is final orders that say where he’s going to live … full stop ….
In those circumstances, I must state clearly for the record that the orders that I make today are final orders and they are not intended to be up for re-negotiation just as [X] approaches his high school years.
Discussion
As stated above, the mother appeared to base her case for a change of [X]’s residence from Tasmania to Victoria almost entirely upon the child’s expressed views. She maintained that position in spite of the Family Consultant’s clear statement at paragraph 54 of the Family Report, which reads as follows:
It is recommended that [X] continue to live with his father and spend school holiday time with his mother and other additional time as agreed between the parents …
However, I am not bound by the recommendations of the Family Consultant. I must base my decision upon a consideration of all the evidence. As my brother Judge Scarlett observed in Sproat & Brimm:[16]
There is no magic in a Family Report or a Court Expert Report, but such a report is usually a most useful resource for a Court making parenting orders. It is the judge who must decide, having considered all the evidence (Hall & Hall[17]).
[16] Sproat & Brimm [2013] FCCA 1823 at paragraph 107
[17] Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
As I have stated, I must weigh up [X]’s expressed views against all the other relevant considerations under section 60CC, and in Godfrey & Sanders,[18] Kay J (sitting as the Full Court) said this:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case
[18] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
However, in a case that is really finely balanced, one criterion could become decisive in determining the outcome. For example, in Taylor & Barker [19] the decisive criterion was the happiness and contentment of the child’s primary carer. Further, there may be cases that are not so finely balanced, where one of the section 60CC considerations is so strongly determinative of a particular result that all others are overwhelmed by it. This is not one of those cases.
[19] Taylor & Barker (2007) FLC 93-345
It should be clear from what I have said above that I do not believe it to be in [X]’s best interests for his residence to be changed. However, it is not appropriate simply to dismiss the applications that are before the court, because there has been a change in circumstances that requires some “tweaking” of the orders in relation to the time that [X] spends with his mother. The change in circumstances is that the Tasmanian school year now comprises four terms, whereas Tasmania was the only State with a three term school year at the time that the orders were made in 2009. This has meant that the long summer school holiday is now shorter and there is an additional term school holiday during the year.
In relation to that, the Family Consultant made this recommendation:[20]
It is recommended that [X] spend time with his mother for four weeks of the long summer school holidays, for two weeks during the Term 1 School holidays and for one week during the Term 2 and 3 school holidays each year.
[20] At paragraph 55 of the Family Report
In general, I agree with her recommendation. However, because I consider the time he spends with his mother should to be more evenly spread throughout the year, I will:
·provide that [X] spend a two week block with his mother during the mid-year holiday; and
·make an order in relation to the Easter school break when it does not coincide with the school holiday at the end of Term 1.
The orders that I make are set out at the start of these Reasons.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 23/7/14
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