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FAMILY LAW – Children – Parenting Orders – Variation of parenting orders – best interests of the child considered – application to vary parenting orders – whether orders should be interim orders or final orders – need for finality – parental responsibility – equal shared parental responsibility – sole parental responsibility – “micro-managing”parenting orders – where child resides with mother – whether mother should be restrained from relocating child’s residence from Sydney Metropolitan Area – where father resides in Adelaide – views of the child – whether child should be given the option of deciding with which parent he wishes to reside once he attains the age of 14 years – where mother should be required to provide written opinion from a psychiatrist as to her fitness to parent the child – anger management – whether mother should be required to attend an anger management course – whether mother should be required to attend a parenting course – family violence – whether evidence of family violence should trigger an order that the child should reside with the father rather than the mother – no power to make an order that a party should obtain a report from a psychiatrist other than as a condition of a parenting order.
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Child aged 14 doesn’t get to dictate
Finch & Harris [2016] FCCA 1485 (14 June 2016)
For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1485.html
Consideration
- The Mother raises the issue that there has not been a sufficient change in circumstances to warrant a change to parenting orders (see Rice v Asplund[8]). The Father submits that the child has been expressing the view for several years that he wants to live with his father rather than his mother.
- It is a consideration, set out in paragraph 60CC(3)(a) of the Family Law Act 1975, that the Court should consider 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 the child’s views.
- Section 60CD of the Act provides at subsection (2) that the court may inform itself of views expressed by a child:
- by having regard to anything contained in a report given to the court under subsection 62G(2); or
- by making an order under section 68L for the child’s interests to be independently represented by a lawyer; or
- such other means as the court thinks appropriate.
- In this case, there is no Independent Children’s Lawyer but there are two Family Reports, the first dated 18th September 2012 and the second, an update, dated 26th March 2013. In the earlier Report, prepared when the child was aged nine years, he said he would like to live in Adelaide and he felt safe at his father’s house. There is no more recent information.
- To my mind, this is not sufficient to justify an order that the child should leave the residence of his mother with whom he has lived all his life and go to live with his father. It is not appropriate to give a child of fourteen years the power to dictate with which parent he would like to reside. If he were seventeen and a half years old say, the Court would almost certainly give great weight to his views but that is not the case here.
- I have previously indicated at [17] and [18] above a reluctance to making orders that “micromanage” the parenting by one or other party. If it is the view of the Father that the Mother’s parenting skills are so deficient that she is unable to look after the child without detailed instructions then he should be making a case that the child should live with him. That is not the case here. It is the view of both parties that at least at this time X should remain living with his mother.
- That said there appears to be some merit in the Father’s concerns about the child’s dental and orthodontic needs in particular as well as his more general medical needs. These issues were referred to in paragraphs 13 and 14 of the Family Report released to the parties on 26th March 2013. The Mother stated then and has continued to do so, that she cannot afford to pay for private orthodontic treatment and proposes that the child be treated as a public patient at the Sydney Dental Hospital. However, as the Mother told the Court, the waiting list is a staggering eight years long.
- It appears that the Father is concerned that the child’s needs are not being met in this area and one of the reasons would appear to be financial. In my view, the Father should be given the power to make decisions about specific matters of surgery and orthodontic treatment for the child. It follows to my mind that if the Father is to make arrangements for the child to have surgery or orthodontic treatment through the private health system rather than through the public health system, then he should bear the responsibility for paying for it.
- The parties should have equal shared parental responsibility for normal medical and dental issues relating to the child.
- The Father seeks that the Mother should have a psychiatric assessment as to her suitability to care for the child. It is doubtful that the Court has the power to make a “stand alone” order for the Mother to undergo a psychiatric assessment, although the Court would have the power to do so as a condition of a parenting order if considered appropriate (see L & T[9]). I do not propose to make such an order as I am not persuaded that there is sufficient evidence to justify it.
- Similarly, I am not persuaded that the evidence is sufficient to justify making an order requiring the mother to undergo either an anger management course or a parenting course.
- It does seem clear, however, that the Father’s concerns about the child’s surgical and orthodontic needs have some foundation which is why I propose to make the order providing for him to have sole parental responsibility to make decisions about the child’s treatment in those specific instances. It appears to me that this would be in the best interests of the child.
- I am not satisfied that there is sufficient evidence to warrant making an injunctive order restraining the Mother from removing the child from the Sydney metropolitan area.