A and H
[2002] FMCAfam 402
•11 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & H | [2002] FMCAfam 402 |
| FAMILY LAW – Children – mother relocating interstate on temporary basis – appropriate contact – whether appropriate to reimpose previous parenting regime upon mother’s return. |
Family Law Act 1975, ss.60B, 65E, 68F
B and B: Family Law Reform Act (1997) FLC 92-755
T and N [2001] FMCAfam 222
| Applicant: | Y J A |
| Respondent: | D W H |
| File No: | (P)DNM 2210 of 2000 |
| Delivered on: | 11 December 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 4 December 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Terry |
| Solicitors for the Applicant: | Janet Terry Barrister & Solicitor |
| Counsel for the Respondent: | Mr Cassells |
| Solicitors for the Respondent: | Terrill & Associates |
ORDERS
That the Orders made by the Family Court of Australia at Darwin on
3 August, 2000 be discharged.That the husband and wife have responsibility for making all decisions concerning the long term care, welfare and development of the child of the marriage B R H born the 3rd of December 1996.
That the said child live with the wife and she be permitted to relocate with him to Victoria or to any other location within Australia to which the wife’s husband, M C A may be posted from time to time.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the said child on all occasions when the said child is with him or her.
That in the event that the said child is residing outside of the Northern Territory the husband have contact to him as follows:
(a)for the first half of the April school holidays in 2003 and each odd year after and the second half of the April school holidays in 2004 and each even year thereafter;
(b)for the whole of the mid year school holidays;
(c)for the first half of the September school holidays in 2003 and each odd year thereafter and the second half of the September school holidays in 2004 and each even year thereafter;
(d)for the first half of the Christmas school holidays in 2003 and each odd year thereafter and for the second half of the Christmas school holidays in 2004 and each even year thereafter;
The husband and wife shall share equally the cost of air travel between the residential location of the child and Darwin for each contact period as specified in Order 5 hereof other than the mid year contact period, which shall be the sole financial responsibility of the husband.
That in the event that the wife judges it necessary for the child to be accompanied by a flight attendant on any trip taken by air to enable the child to have contact with the husband she shall be solely responsible for all expense related to such accompaniment of the child.
During all periods that the said child is living interstate, the husband shall have telephone contact to the child on a liberal basis but no less than on one occasion each week at 6.00pm on each Sunday Victorian time or 6.00pm local time on each Sunday in whatever location the child is subsequently living.
That in the event that the child is living in Darwin the husband shall have contact with him on the following basis:
(a)from after school on Friday until the commencement of school on the following Monday in each alternate week;
(b)from after school on Tuesday until the commencement of school on the following Wednesday in the other week;
(c)for half all school holidays being the first half in odd ending years and the second half in even ending years and during school holidays Orders 9 (a) and (b) are suspended;
(d)on such other occasions as the parties may mutually agree from time to time;
(e)in the event that the child’s birthday or the husband’s birthday do not fall on a contact period for two hours if they fall on a school day and for four hours if they fall on a weekend.
That each party keep the other advised of their residential address and land line telephone number and inform the other within seven days of any change to such address or land line telephone number.
That if Mother’s Day is on a weekend when the child is living in Darwin pursuant to Order 9 hereof and would be with the husband, the husband shall have contact with the child on the preceding weekend in lieu thereof.
That if Father’s Day is on a weekend when the child is living in Darwin pursuant to Order 9 hereof and would not be with the husband, the husband shall have contact with the child on the preceding weekend in lieu thereof.
The husband and wife each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as is practicable of each treating doctor or like profession attended by the child.
All applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM 2210 of 2000
| Y J A |
Applicant
And
| D W H |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to competing applications in respect of parenting arrangements for one child, B R H, “B” born the 3rd of November 1996. The parties to these proceedings are B’s parents — his father D W H and his mother Y J A. Although the parties have been divorced since March of 2001, for the sake of convenience only, I will refer to Mr H as the husband in these reasons for judgment and to Mrs A as the wife.
The parties have been separated since the 26th of December 1999. Both have subsequently re-partnered. The wife’s current husband, M C A is a soldier in the Royal Australian Army. From January 2003 he has accepted a posting with the Army in Melbourne. As a result, the wife sought orders from the Court which would have allowed her to relocate with B from Darwin to Melbourne. To his great credit, the husband has not sought to stand in the way of the wife’s desire to move to Melbourne with B. However, as a result of past arrangements in respect of B’s care, there are a number of issues in respect of which the parties are currently in dispute. These issues relate to two main areas. Firstly, what is the appropriate level of contact between B and the husband whilst B is living in Melbourne. Secondly, what arrangements for B’s residence should be reinstituted if, and when, the wife returns to Darwin with Mr A and B.
Background
In order to place these two issues in context, it is necessary to briefly outline the history of the parties to this point and in particular detail orders that have been made by the Family Court at Darwin in the past in respect of B’s care.
The husband was born on the 20th of December 1970. The wife was born on the 23rd of November 1972. Both were born and have lived in Darwin for most of their lives and in fact they met when they were at school together. They each have family members who live in the Darwin area. In the husband’s case both his parents, his three brothers and two sisters live in Darwin. In particular B enjoys a close relationship with his cousin, S P, who is four and a half years old.
The wife is a person who enjoys an Aboriginal heritage. She has a close relationship with her mother and step-father and a younger brother, all of whom live in the Darwin area. She also has a large extended family.
The parties married in Darwin on the 24th of November 1990. There is no dispute between the parties that they separated on the 26th of December, 1999 when the wife left the premises in which she was living with the husband taking B with her. Shortly afterwards, the parties commenced proceedings in respect of arrangements for B’s care in the Family Court at Darwin.
At the time the parties separated, the husband was employed as a paramedic with the St John’s Ambulance Service. As a result he worked on a roster which saw him work for four days in a row followed by four days off. In January of 2000 the parties were able to agree, on an interim basis, that B should live with his father on a regular basis during the four days of his roster when he was not working and at all other times with the wife. This arrangement was formalised in consent orders made by the Family Court on the 3rd of August 2000. In particular, the orders envisaged that B would live with his father from 9.00am on the second day of the husband’s rostered days off until 6.00pm on the fourth day of that period. The orders also allowed for the husband to have contact with B for extended holiday periods and on special occasions, such as his birthday, Christmas and other occasions as agreed between the parties. These orders have persisted until the present time.
The wife commenced the current proceeding in August of 2001. At that time she sought orders from the Court that would have allowed her to relocate with B from Darwin to Brisbane. At that time she wished to pursue a career as a psychologist in Brisbane. She had also formed a relationship with a Mr G, who was also desirous of moving from Darwin to Brisbane. However the relationship did not continue and the wife abandoned her plans to move to Brisbane.
The husband joined the Northern Territory Police on the 28th of January 2001. For the first six months of his employment, he attended the Police College. Thereafter he began to work a regular rotating shift involving day, evening and night shifts interspersed with days off. This arrangement was radically different from the four days on, four days off arrangement that he had had with the Ambulance Service. Nonetheless the parties continued to adhere to the orders that had been made on the 3rd of August 2000. However, the husband became increasingly reliant on his parents and other relatives to assist in the collection and return of B at the end of each of these periods of three days and two nights. Clearly, this arrangement, where every eight days B spent sometime living with his father and sometime living with his mother, did not relate to any specific days of the week and as a result the specific days on which B was living with the husband regularly changed. In addition, because of the husband’s employment with the Police Force, there was no guarantee that the periods of time during which B was living with him related to periods when the husband was not working. Accordingly his family and particularly his sister, Mrs P, and more recently his fiancee, Ms B, regularly assisted him in caring for B when he was working.
The husband currently lives with his fiance M B in a three bedroom home in Northlakes. The husband and Ms B plan to marry in May of 2003. They began to live together around March of this year.
The wife met Mr A in late 2001 and they married on the 28th of June 2002. The wife and Mr A are expecting their first child in January of 2003. At the moment they live in Gray, a suburb of Palmerston. Mrs A is currently employed as a psychologist on a full time basis. As I understand matters she also relies on her family and child care to assist with her care of B.
Mr A is currently posted to East Timor. He has been in the Army since July of 2001. He is originally from Melbourne. He is posted to an infantry battalion. Recently he undertook an aptitude test organised by the Army. This indicated that he had a talent for languages. As a result, he has been posted to the Army School of Languages in Melbourne. This posting will commence on the 20th of January 2003. The posting is for one year. If Mr A successfully completes the course, this will assist him in his ambition to work in Army Intelligence. After he has completed the course it is expected, but is by no means certain, that he will be redeployed in Darwin.
It is against this background that the wife sought orders from the Court that would enable her to relocate with B to Melbourne for a period of at least one year from January 2003. Initially the husband opposed this relocation and sought orders from the Court that would have resulted in B living primarily with him in the event that the wife elected to go to Melbourne with Mr A and the wife having regular contact. He also sought a shared parenting arrangement in the event that the wife did not go to Melbourne or returned to Darwin. However, after some difficult and no doubt heart-felt considerations, the husband has decided that he will not pursue this application and will not stand in the way of the wife’s wish to relocate to Melbourne, notwithstanding that this will result in a substantial interruption of the level of contact he currently has with his son.
However, in spite of this concession, there remain two principle areas of dispute between the parties. Firstly, what level of contact should the husband have with B during the year that it is anticipated that B will be living in Melbourne. Related to this question is the possibility that Mr A will be posted to a location other than Darwin following the completion of his course. In this event, the orders that are made at this stage for the husband’s contact, may persist for a period longer than one year. Secondly, and of major importance to the parties, is the issue of what arrangements should be made in respect of B’s living and care arrangement if and when the wife returns to Darwin with Mr A. The husband seeks the retention of the current arrangement. The wife wishes to discard it and replace it with something that could be described as more conventional.
The issues
It is the wife’s position that the current eight-day cycle on which B moves between the parties is no longer appropriate, and is in fact very unsettling for B. Accordingly, she opposes the reintroduction of this regime in the event that she and B return to live in Darwin. To the contrary, the husband believes that this arrangement has been working well for a number of years. He believes that the arrangement gives B an opportunity to spend time with him and his family in a variety of settings. These include school time, weekends and holidays. Accordingly, he believes that it is in B’s best interests for the regime to be reinstated.
It is the wife’s position that, due to the rotating nature of the regime, it is unsettling for B to move between the parties on the current basis. She points to the fact that the days of the week on which B spends time with the husband are constantly changing as being particularly unsettling for the child. In addition, she asserts that such a fluid arrangement requires there to be a high degree of trust and cooperation between the parties involved in it. For reasons that will be provided in due course, the wife asserts that no such relationship exists between her and the husband and accordingly it is one fraught with difficulties. It is her position that she has been trying to change the regime since at least August of 2001.
Because of her concerns about the nature of the eight day regime, the wife proposes that, upon her return to Darwin, the husband should have contact with B each alternate weekend from after school on Friday until the commencement of school the following Monday. In addition she would propose that the husband have contact for an additional overnight period on a school night in the other week. This, she would argue, would allow the husband to have a mixture of weekend and school time with B. It is the position of both parties that, when B is living in Darwin, time with him during the school holidays should be shared equally between them.
Neither of the parties, nor their respective partners are in a particularly robust financial position. Both the husband and wife acknowledge that it is in B’s best interests that he travel regularly from Melbourne to Darwin to spend time with his father and members of his paternal family. This will be an expensive exercise and will result in financial hardship for both parties. In addition, it is the wife’s position, given B’s age, that it is appropriate that he be accompanied when he travels between Melbourne and Darwin by air. This will result in additional expense. In these circumstances, although the parties agree that they should share equally the cost of B’s travel, they disagree on the number of contact visits that should occur each year. It is the husband’s position that there should be four such visits each school year. Namely for three weeks of the long Christmas holiday; for one week during the Victorian school holidays in April; for two weeks in the mid year Victorian school holidays and for a further period of one week in the September/October Victorian school holiday. This regime would ensure that he would have face to face contact with B approximately every ten weeks. It is his position that this is the bear minimum required to maintain his relationship with his son. In addition he would seek regular and liberal telephone contact with his son and the ability to communicate with him via email.
It is the wife’s position that the contact as sought by the husband will be unduly financially onerous for her and Mr A, particularly as she will not be working following the birth of her child in January of 2003. It is her belief that B will be able to maintain his relationship with his father if he has contact with him for one half of the long Christmas school holiday and for all of the mid year Victorian school holiday. In addition she would propose that B not attend school for one week either after or before this mid year school holiday to enable the husband to have a period of contact with B of three weeks. She would not oppose reasonable and regular telephone contact between the husband and B. However, she does have some reservations that given B’s level of development, he is not yet sufficiently adept to use email. As has already been indicated, the wife has concerns about B travelling unaccompanied by air. Her parents may be available from time to time to accompany him. However, in the event that they are not available, at this stage she would wish B to be accompanied by a flight attendant. Obviously, this would result in further expense.
Accordingly, the principle issues for determination are as follows:
·In the circumstances in which the parties will be from January 2003 until at least January 2004, what is the best means for B to maintain his relationship with his father;
·Given the nature of the relationship between the parties and the changed circumstances that have eventuated since January of 2000 and will continue to eventuate until January of 2004, when B will return to Darwin at the earliest, is it on balance, likely to be in B’s best interest, if and when he returns to live in Darwin, to reinstitute the existing eight day basis on which he moves between the respective homes of his parents or should the more conventional regime preferred by the wife be instituted.
The evidence
As directed, each of the parties filed an affidavit containing his or her evidence in chief. In addition each of them relied on affidavits sworn by other witnesses. In the wife’s case she relied on an affidavit sworn by her husband Mr A. In the husband’s case he relied on affidavits sworn by his fiance, M J B and his sister P D P. Of these witnesses, only Mr A was required for cross-examination. As he is currently on active service in East Timor, it was necessary for him to give his evidence by way of a telephone link.
In addition, the Court was assisted by a family report that had been prepared by Marjorie Loadman. Mrs Loadman is a social worker and a regulation 8 counsellor with the Family Court. She was required to attend Court for cross-examination on the 4th of December 2002 and was cross-examined by counsel for the wife, Ms Terry and by counsel for the husband, Mr Cassells. Both the parties were cross-examined by counsel for the other party.
I found each of the parties to be an honest and decent person. I have no reason to doubt the depth and sincerity of the love they both share for B. There can be no doubting that each of them has B’s best interests to the forefront of his or her heart in these proceedings. However, there was no disguising the antipathy that they each feel for the other. Sadly, they have been engaged in litigation in one form or another since they separated in December of 1999. As a result, they each mistrust the motive of the other in bringing these proceedings and, as is often the case, sought to portray the other in as negative light as possible. As a result, in each of their lengthy affidavits, they recounted incidents over the several years of their relationship and subsequent separation that in my view have little relevance to the present proceedings, other than to demonstrate the depth of the mistrust between them. However, having said that, it is apparent to me that too a large extent, the parties have been able to put aside their differences and cooperate with one another to ensure that B’s best interests are maintained. Happily, it appears that B has not sustained any psychological harm as a result of the dispute between his parents. He is a happy child who enjoys good health and normal development, apart from some asthma, which is exacerbated by viral infections. He is described by both his parents and by Mrs Loadman as being a delightful, if somewhat shy child. This state of affairs, is no doubt a great credit to both his parents and to all the other people who are involved in his care.
The wife describes the husband as being controlling of her; of not being supportive of her Aboriginality and by implication of B’s entitlement to maintain connections with the Aboriginal members of his family and his own aboriginal identity; and of being emotionally unstable. It is her position that, for at least the early portion of his life, the husband was essentially disinterested in B and it fell to her to provide the vast majority of his care.
The husband describes the wife as being both tacitly and actively undermining of his and his family’s relationship with B; of being unwilling to share important information with him regarding B’s health and education and in fact making decisions in respect of both the school that B was to attend and an important surgical procedure that he was to undergo without consultation with him. Both parties accuse the other of adopting the particular position they have done in respect of B’s care as being motivated more by concerns about child support than concerns about B himself. The husband asserting that the wife wants to maximise the child support he has to pay. The wife asserting that the husband wishes to minimise it.
Having outlined the perceptions of each of the parties about the other, it is apparent that regardless of the truth or otherwise of these allegations, the parties do not have an easy relationship. The husband is a police officer. He was punctilious in his evidence and very particular in respect of detail. He sees the current eight regime as being fair to him and to B, although I suspect that he believes only a strict even sharing of parenting time would represent true equity for him. The husband remains extremely bitter about what he sees as untrue allegations made against him by the wife regarding his behaviour at the time the parties separated. In my view, it is not necessary to make positive findings of fact in respect of the various incidents that happened at that time. The parties having long since separated. However, I have no doubt that both parties, but particularly the husband, were gravely emotionally affected by the separation. It would be unusual if it was otherwise.
Because of the events surrounding the separation and what he sees as the wife’s untrue allegations concerning him, the husband has grave fears that the wife will apply for a domestic violence order against him, either out of malice or for some other non bona fide reason. If such an order was made against him, it would result in his dismissal from the Northern Territory Police Force. As a result, he has taken the precaution of tape recording the vast majority of his conversations with the wife and when he collects B for contact he refrains from leaving his car. It is also the position that in the past, the wife’s parents have taken out trespass notices against him. Once again this indicates that the parties do not have an easy relationship with one another.
In addition the husband is critical of the wife in respect of her decision to enrol B in the E School in Darwin. This would have resulted in him being moved from the M Primary School, which was not the husband’s preference. However, B did not in fact attend this school and once it became known to the wife that the husband did not consent to the change of school, the enrolment was cancelled. It was also necessary in the past for B to undergo a circumcision operation, which was recommended by his doctor following the failure of alternate treatment involving the application of steroid ointment. The husband felt aggrieved that he was not involved in this decision and was not fully informed about the progress of the various forms of treatment before it. However, it seems clear that the wife’s solicitor sent a letter to his solicitor prior to the operation advising him of it and once the husband became convinced of the necessity for the operation, he consented to it and was fully involved in supporting B through it.
The husband has also been concerned that in the past that he has not been noted in B’s school records as being one of B’s next of kin and his contact address and other details have been incorrect. The wife has ascribed these difficulties to administration failures at the school rather than to any default on her part. I accept this explanation.
I also accept that Mr A does not have access to firearms outside of his work and has never taken B shooting. The father became concerned when he was told by B himself that he had been hunting with Mr A.
All of these incidents are recounted in order to demonstrate the difficulties the parties have in discussing issues with each other concerning B and the level of mis-communication and misunderstanding that has occurred between them in the past. The husband feels that the wife conceals important details about B from him and wishes to exclude him from important decisions. The wife feels that the husband wishes to interfere unduly with her responsibilities as B’s mother. Obviously there is an artificiality in important matters concerning B being conveyed between the parties by way of a solicitor’s letter. However in respect of the issue of E School and the circumcision operation, once the issues had been brought into the open, the parties were able to compromise and reach a decision that was appropriate for B.
That is not to say that the wife is without fault. She acknowledges that she took B with her on an interstate holiday without the husband’s permission and when he had in fact declined to give his specific authority for the trip. This does no credit and is not behaviour that is calculated to reduce the level of suspicion between the parties.
Although the parties do have a semblance of having a cooperative and working parenting relationship with one another, that relationship is fraught with difficulties. It remains the case that, almost three years after they had separated, they still have considerable difficulties in reaching consensual decisions regarding B’s future care. Each of them characterises the other as being responsible for these difficulties. I think the reality is that they both have contributed to these communication difficulties as a result of their differing personalities and their different perceptions as to how arrangements for B are to be best managed. In my view, it is unlikely that these difficulties will resolve in the short to medium term.
The major source of dispute between the parties has been the continuation of the eight day regime in respect of arrangements for B’s care. It is the wife’s position that she has long felt that this arrangement is unsuitable for both herself and B. It is her position that, as the basis for the regime – that is the husband’s employment as a paramedic and his eight day roster – no longer exists it is inappropriate to continue with the regime. In her evidence the wife indicated her belief that B does not have a routine with the husband but is rather cared for by a variety of his paternal relatives. It is her perception that both B and indeed the school authorities and teachers are confused about the arrangements, particularly in respect of B’s collection after school and the passing of medication between the parties on each hand over.
As has already been indicated, B suffers from asthma which is exacerbated by viral infection. As a result he has been prescribed a puffer which he uses for relief. The wife complains that due to the husband’s work commitments and the changing of his roster, it is not always possible for the puffer to be handed directly between the parties.
During the course of his oral evidence, the husband responded to criticism raised by the wife that his current work roster bore no relevance to the current arrangements for B’s care by indicating that there was a strong possibility that by the time B resumed living in Darwin that he would once again be on a four days on/four days off roster. He deposed that the Northern Territory Police Force were currently trialing such a roster in Katherine and in the event that the Police did not adopt such a roster Territory wide, he would resign from the Police Force and resume his employment as a Paramedic. These were not matters that were raised in his affidavit material. Although I accept the enthusiasm the husband has for such a roster, in my view it is far from certain that he will be working pursuant to such a roster in the event that B does return to Darwin. In my view, there are too many uncertainties in respect of this matter. It seemed to me that the husband enjoys his occupation as a Police Officer and it may well be the case that he will choose to remain in the Force. There can be no certainty that the Northern Territory Police will adopt the four day on/four day off roster in future.
In his evidence, the husband indicated that, although B is at times unsettled when he returns to his father’s home from his mother’s home, he quickly settles down. He concedes that B would not have a conception as to the exact day of the week on which he would be going from one home to the other, however it was his evidence that B knew when he was to go from his mummy’s house to his daddy’s house. Accordingly, the husband does not believe that the current arrangement is unduly unsettling for B.
In my view, the current arrangement is likely to be more unsettling for the wife than for B himself. After all, this is the arrangement that B has known for the vast majority of his life. It seems that he is well adapted to it. I accept that the wife does find it difficult to plan events in future for both herself and B, because of the rolling nature of the routine. These difficulties are exacerbated by the problems the parties have in communicating and confiding in one another and to some extent by the inflexible nature of the husband. Given their differing temperaments and the mistrust they have for each other, the parties are unlikely to have a flexible and readily adaptable shared parenting regime for B. I find that the wife has long been resentful of the routine, which she sees as an unnecessary imposition upon her, particularly when there is no longer any practicable justification for it, in the absence of the husband working a four days on/four days off roster. In my view, she is far more likely to be supportive of a more conventional contact regime if and when she returns to Darwin. This may possibly have the consequence of reducing tensions between the parties, however this is far from certain.
The wife can point to no specific difficulties with the regime other than that involved with the passing of B’s medication from one to the other. The earliest possible date on which the current regime is likely to be resumed is January of 2004. By this time she will have given birth to B’s half brother or half sister and B himself would have advanced at Primary School. Accordingly, it is uncertain what other practical difficulties may be involved in the reintroduction of the regime other than that, as I have already found, the wife is likely to be highly resentful and resistant to it.
As the competing proposals of the parties for the husband’s contact to B during 2003 and possibly thereafter have fiscal implications for each of them, it is necessary to contrast their respective financial positions. There was no dispute between the parties in regards to this evidence. As I have already indicated, neither the husband nor the wife is in a particularly strong financial position.
At the present time the wife is employed as a psychologist by the Somerville Centre. She is currently receiving an income of $40,000.00 per annum. However, due to her pregnancy, she will have to cease her employment shortly. Thereafter, she will be on maternity leave for approximately five months. She hopes to find part time employment in Melbourne as a psychologist towards the middle of 2003. Mr A is a soldier in an infantry battalion. He receives an income of $32,000.00 per annum. At the present time, whilst he is on active service in East Timor, his income is tax free and he receives an additional daily allowance of $125.00, which is also tax free. The tour of duty has been for a period of three months. The wife and Mr A anticipates that they will be able to save some money as a result of Mr A’ tour of duty. When they arrive in Melbourne, they will be provided with a defence service home. However, they will have to pay rent in respect of this property.
I was impressed with the devotion that the husband has displayed to B and to the effort that he has made to maintain his relationship with his son. I accept that he has forgone employment opportunities with the Police outside of Darwin, to be able to maintain his existing level of contact. He is dismissive of the concerns that the wife has raised about the current contact regime, seeing those concerns as being a pretext to reduce the current level of contact that he enjoys with his son.
Although neither Ms P nor Ms B were cross-examined in the proceedings, I have no reason to disbelieve the contents of their respective affidavits. I accept that B has a close and warm relationship with the various members of his paternal family, particularly his cousins. I also accept that B enjoys a close relationship with Ms B and also with her son K, prior to his tragic death.
Similarly I was impressed by Mr A. I accept that he takes his position in respect of B seriously indeed and has the boy’s best interest to the forefront of his heart. It is to the husband’s credit he is accepting of the significant role that Mr A has played and will continue to play in B’s life in future.
Accordingly, in many ways, B is a lucky child to be surrounded by so many people who love him deeply and who are concerned about his well being. It is fortunate that, notwithstanding the acrimonious relationship between the parties, B has developed into a happy and emotionally stable child. Although the mother is resentful of the current regime, there is no evidence before me to indicate that she has sought to undermine B’s obvious strong emotional attachment to his father. In all these circumstances, it is greatly to the husband’s credit that he is prepared to allow the wife and Mr A to pursue their career ambitions in Melbourne. I accept that this was not an easy concession for him to make.
The husband’s income from his employment as a Police Officer is in the vicinity of $50,000.00 per annum when overtime and other penalties are included. His defacto partner, Ms B is employed as a Planning and Development Officer by the Territory Insurance Office. She receives an income of $31,200.00 per annum. However, at the present time, due to the loss of her son, she is on bereavement leave. She and Mr H have a monthly liability for mortgage payments on their home and repayments of a loan in respect of their family car which amount to $2,600.00 per month. In his evidence, the husband indicated that he would be prepared to pay more than half of the cost of B’s travel to and from Darwin if this meant that he would have contact to his son on the basis that he currently seeks.
The Family Report
The Court was assisted in this matter by a Family Report that had been prepared by Margorie Loadman. Mrs Loadman is a social worker and a Family Court counsellor. She holds a Bachelors Degree in Social Work and has in the past worked in the Family Court at Melbourne. She has also been employed as a social worker by the Department of Defence and by the Education Department. In these various roles she has gained experience in interviewing children of various ages and assessing their relationships with their parents. I found her to be a considered and thoughtful witness. I accept her evidence.
The main thrust of her report was in respect of the mother’s proposal to relocate from Darwin to Melbourne. Accordingly, she did not turn her mind in any great detail to the specific issues that now occupy my deliberations.
However, Mrs Loadman’s assessment was that B enjoyed a good relationship with both his parents and indeed with each of their extended families. She also was of the opinion that both Mr H and Mrs A were generally supportive of the other continuing to play a significant role in B’s life. However, she was also of the opinion that both of them were concerned at what they saw as the attempts of the other to achieve a major role in B’s life at the expense of the other. Accordingly there was much suspicion between the parties. This accords with my own impression.
In her report, Mrs Loadman expressed her opinion that the wife was B’s primary care giver and attachment figure. For that reason she recommended that the wife should be permitted to leave Darwin with B. As a result of this opinion, Mrs Loadman wrote as follows in her report:
“If Mrs A is allowed to relocate to Melbourne, I believe that being separated from his father and extended family will have an impact on B, but the effect could be lessened if the issue were sensitively addressed. By this I mean allowing B liberal telephone contact with his father and assuring him that he will see his father during school holidays and other opportunities should the father be in Melbourne at times outside the school holidays.
There is is no evidence that B is reluctant to leave Darwin in fact he says that he is looking forward to it. He stated that he knew his Dad did not want him to go but seemed confident that he would be seeing his Dad during the holidays.
Mr H as a recently qualified policeman may not be able to take leave during the school holidays. In these circumstances, B should still be allowed to spend his holidays in Darwin with Mr H’s family assisting with his care. And should Mr H during a period of leave be in close proximity to B it would be beneficial to their relationship that he has generous contact with B; certainly no less than he would be entitled to if B were living in Darwin.”
In her concluding recommendations, Mrs Loadman indicated her view that B had benefited from the “stability and consistency of contact” that he had had with both his parents and their families. She was of the view that each of them was totally committed to B’s care and that each of them was in a position to take care of both B’s day to day physical and emotional needs. Once again, I agree with this assessment. As I am at pains to point out to the parties, it is my view that they are both competent and dedicated parents.
Mrs Loadman did not appear to be greatly concerned about the current regime whereby B moves from his father’s to his mother’s house and back again. She was of the view that B knew where he would be at any particular time, because he was told that by his parents. The existing arrangement had an appeal for Mrs Loadman in the sense that she thought it enabled B to have regular time with his father and members of his paternal family in a variety of settings. These settings included weekend time, time when B was attending school and his father was going to work and other times when it was necessary for B to be in the care of his aunt or other family members. Mrs Loadman was not of the view that that arrangement had necessarily had a negative impact on B. However, she did indicate that B was aware of the tensions between his two homes and that in future, for the arrangement to be successfully continued, it would be necessary for the parties to be flexible and have a facility to communicate readily with one another.
In terms of the husband’s contact with B during the coming year, Mrs Loadman was concerned, as I am, about the financial burden that will be imposed on the parties. She was of the view that there was a firm bond between father and son and that this relationship would be preserved over the twelve months of B’s absence from Darwin. However, she was of the view that B would benefit greatly from having regular “quality” contact with his father during 2003. Putting aside her concerns about the financial aspects of the contact, she would prefer that there be more rather than less contact between B and his father. She was also of the view that it was important that B have an opportunity to spend holiday time with his mother and interact with his new born sibling. For these reasons, she recommended that there be three periods of contact each year. However, she did not appear unduly concerned about the husband’s proposal that there should be four such periods, other than her concerns about the cost of such contact.
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about all future parenting arrangements for B, although they have been able to agree about some very significant matters.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve B’s best interests.
In this case, as the husband wishes to maintain the regime whereby he has contact with B for three days and two nights of every eight days in the event that B returns to Darwin and the wife opposes this position, it is in my view appropriate for me to set out the matters that Federal Magistrate Ryan listed in the case of T & N [2001] FMCAfam 222 which in my view are useful indicia in determining whether it is appropriate to make orders that amount to either a formal shared parenting arrangement or a quasi shared parenting arrangement. In this case, given the fluidity of the times that B will spend with his father under his father’s preferred regime, it seems to me that this arrangement is tantamount to a shared parenting arrangement. The various matters that Federal Magistrate Ryan thought were relevant are as follows:
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Are the homes sufficiently proximate that the children can maintain their friendship in both homes;
·The prior history of caring for the child. Have the parties demonstrated they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on those matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extracurricular activity.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes;
·Where siblings live.
In order to determine what orders will best address the best interests of B, it is now necessary to turn to the various factors as set out in section 68F(2) of the Family Law Act. These factors are to be applied to the situation as it pertains to B in a common sense way so that whatever orders are ultimately made, will bring about the situation that is most likely to lead to his best interests being served.
Section 68F(2) factors
(a) B’s wishes
B is just 6 years of age. As a result he lacks sufficient insight and maturity for his wishes to be a strongly determinative factor in this matter. In any event, there is not a great deal of evidence of what his wishes are, other than that Mrs Loadman believes that B is looking forward to the prospect of going to live in Melbourne. In particular, there is no evidence as to whether or not B finds the current eight day regime, attractive or otherwise. I suspect that as this arrangement is the only reality that B has known for over half of his life and given his age, he is likely to be accepting of it. What his view may be of a reintroduction of the regime in twelve months time cannot be gauged at present.
Mrs Loadman also indicated that her perception of B was that he expected to see his father regularly during the period of time he was living in Melbourne. I accept that B is likely to have a wish to have as much contact as is possible with his father in the future. Given his age, he is of course not in a position to quantify this in anyway.
(b) The nature of the relationship between the child, his parents and other significant people
The evidence is clear that B enjoys a close and loving relationship with both his mother and his father. In addition, he is accepting of and closely attached to each of his parents’ new partners. Mr A in the case of the wife and Ms B in the case of the husband. I also have no doubt that B enjoys a warm and supportive relationship with other members of both his wider paternal and maternal families. In particular; he is close to his aunt and especially to his cousin, S. Given the involvement of the husband’s family in assisting him with the care of B during his periods of the eight day cycle, this is hardly surprising.
However, I accept that the wife is the most significant figure in B’s life at the present time and is likely to remain so for the immediate future. This certainly was the view of Mrs Loadman and it is, I think, implicit in the position the husband has taken in regards to his consent to the wife relocating to Melbourne with B, that he too accepts that this is the case. Because of the primary position that the wife occupies in respect of the arrangements for the care of B, it is important that her views in respect of future arrangements for B’s care be treated with respect. In my view, it would be imprudent of me to discount her wishes to any large degree. This is particularly so, given the assessment of Mrs Loadman, that success or otherwise of any future regime in respect of the care of B depends on the support of both his parents.
To the credit of both parties, since they separated in December of 1999, they have been able to manage the eight day regime for B’s living arrangements without apparently causing him any great adjustment difficulties. All agree that he is a happy child, who is progressing normally. The parties have also been able to manage the not insignificant difficulty occasioned by the fact that the husband lives in the northern suburbs of Darwin and the wife lives in Palmerston and both have full time employment, the husband’s work involving arduous and ever changing shifts. Accordingly, there is to a large extent, a demonstrable track record that they are able to manage adequately a regime whereby B moves from household to household on an ever changing basis.
However, from the wife’s point of view, there has long been an undercurrent of resentment that the regime has been imposed on her by the husband without any consideration for her needs and for a practical reason that is now outmoded.
Although, there have been disputes between the parties regarding certain aspects of B’s care in the past, they have been able to reach appropriate compromises in respect of those matters. However, as is evident by the fact that many communications between the parties have to be conducted in a formal way and the husband takes the step of tape recording many of his conversations with the wife, I think I would be naïve if I did not think that for the foreseeable future there will be a strong flavour of mutual suspicion in their relationship.
Accordingly, there are both pros and cons in respect of the continuation of the eight day regime, if and when B returns to live in Darwin. There must also be, by necessity, some uncertainty about what will be the state of affairs when that eventuality comes to pass. These are matters that will be discussed under the next heading. I am concerned that there is a strong possibility that, as B gets older and advances at school, there will arise greater practical difficulties in respect of B moving between his parents on the current basis. I have some reservations that given the resentment that the wife feels about the current regime and the obvious difficulties that the parties have in having cordial and open in communications with one another, that these difficulties will become more pronounced in future and may possibly have adverse consequences for B. These factors militate against a reintroduction of the current regime in the event that B does come back to live in Darwin.
(c) The likely effect of any change in the child’s circumstances
The wife has proposed a quite radical change for B for at least the next twelve months. After much soul searching and with some reservations, the husband has agreed to that change. Clearly the change will have an impact on B. He will not enjoy the frequency and immediacy of relationship that he currently enjoys with his father, Ms B, S and very many other members of both his maternal and paternal families, who live in Darwin. However, I am satisfied that the wife and Mr A will be able to sensitively manage this change. It seems that B is accepting of it.
Because of the large role that the husband has played in B’s life to date, it is in my view important, that during 2003 the husband have generous contact to B. Although the relationship between father and son is well developed, given B’s age, it is my view that it would be optimal for B’s best interests if he was able to spend some direct face to face time with his father some ten weeks or so, as the husband proposes. I appreciate that this will result in considerable financial hardship for the parties. The husband has indicated a willingness to assume that burden. The wife has indicated a similar resolve but on a more limited basis. Regularity of contact along the lines sought by the husband will assist B in coming to terms with his change of environment, although in the circumstances of this case, I do not anticipate any great degree of difficulty.
Inevitably, there will be other changes in B’s life between now and January of 2004. He will soon have a sibling with whom he will be living permanently. For a child of B’s age, this is a radical and exciting development. He will also have spent time living predominantly with his mother and Mr A, something he has not known before now. He will also be a year older and be further advanced at school. He will be more mature and more aware of the differentiation between school days, weekends and holidays. There may be all sorts of factors pertaining to his school attendance and activities that may interfere with the easy reintroduction of the current eight day cycle. B himself may have stronger views about whether or not he wishes to revert to the previous regime. Above all, there remains a doubt that Mr A will in fact be posted back to Darwin, though this seems to be the most likely eventuality.
Although I accept the husband’s enthusiasm for the four days on/four days off roster, there can be no guarantee that the husband will in fact be working on such a roster when B returns to live in Darwin. In all these circumstances, it is not easy to over look the period of time that B will be away from Darwin and then blithely assert that it is an easy matter simply to revert to the eight day regime. In my view, there are too many imponderable factors for this to be easily done not the least of these factors are the fact that B will have spent a year living predominantly with his mother; the fact that the wife is deeply resentful of the regime and the current level of communication difficulties that exist between the parties and are not likely to resolve over the period that the wife is away living in Melbourne. In my view, these are all factors that tend towards the imposition of a more conventional regime if and when the wife and Mr A return to live in Darwin with B.
In my view, there is no evidence to indicate that a regime for the husband to have contact with B along the lines advocated by the wife upon her return, will substantially affect B’s entitlement to have a relationship with his father. Under the wife’s proposal, B will have regular contact at fixed times. These times will include weekends and some weekdays. The wife is likely to be supportive of such a regime. The husband may have less days per fortnight with B than he currently enjoys and may be somewhat bitter about this, but in the circumstances of this case, whether the husband has three days per fortnight or some other greater number will not greatly affect the strength of his relationship with his son. As Mrs Loadman remarked in her evidence, the important factor in respect of contact is quality rather than quantity.
(d) The practical difficulties associated with contact
In this case, due to the fact that the wife and B will be living several thousand kilometres away from the husband, there are substantial practical difficulties with the husband having regular contact to B. There are no easy solutions to the distance that will exist between the homes of the husband and the wife and the reality that neither of them is a particularly wealthy person. However, I believe that the parties are willing to work together to overcome these problems. It is B’s entitlement to maintain his relationship with his father. By necessity this will be a heavy burden that each of his parents will have to bear. Each of them has indicated that they are willing to bear some portion of that burden. In determining how that burden should be borne between the parties, it will be necessary for me to contrast their respective financial circumstances. In this regard, I am satisfied that each of them has made a full and frank disclosure of their relevant financial circumstances.
During the next few months the wife and Mr A will incur significant financial expenses relating to the imminent birth of their child and the fact that the wife is leaving the workforce. Although there can be no doubt that Mr A has had the opportunity to save a substantial amount of money whilst on active service in East Timor, the fact remains that his income when he returns to Australia will be a modest one.
The husband and Ms B are decent and hardworking people. The husband has a difficult and demanding job for which he does not receive a lavish salary. However, at the present time, he and Ms B receive a greater sum into their household each week than the wife and Mr A will receive in the early portion of the new year. However, having said that, I bear in mind that they also have significant liabilities in respect of their mortgage and car loan. The husband is also paying child support for B. Ultimately, the costs of contact may affect the calculation of the amount of child support that the husband has to pay for B.
The wife has indicated that she is willing to pay the costs of one half of two trips for contact each year. This is to her credit. However, I must also bear in mind that it is as a result of her desire to move to Melbourne that this has become an issue. The husband has said that he will do his utmost to ensure that B is able to travel to Darwin as often as possible for contact. By this I take it he means that he would be willing to contribute a greater sum towards the costs of travel for contact than the wife. In this respect, he does not advocate that there should be a strict equity between the parties. However, for obvious reasons, I take it that he would prefer this to be the case.
For reasons that I have already provided, I believe that it is appropriate for B to have four contact visits each year with his father. The costs of this travel, which by necessity must be by air, will be substantial. In my view, it is appropriate that the husband and wife share the costs of three such trips per year and in the event that there is a fourth trip, the husband pay the costs of this trip. In my view, this represents a compromise between the competing positions of the parties which recognises the somewhat superior financial position of the husband but also ensures that the wife bears a large proportion of the burden of the costs of contact. As I am at pains to point out to each of the parties, I accept that inevitably the burden will be a heavy one and will result in each of them and their respective partners making many sacrifices in order to ensure that the contact takes place. Sadly, in order to ensure that B maintains his relationship with his father, I can see no other way of going about matters. It is of great credit to Mr A that he is prepared to contribute towards the costs of B’s air travel to see his father.
As has already been indicated, the wife has indicated that it is her preference that B be accompanied on the aeroplane at this stage. In the absence of any available relative, it will be necessary for a flight attendant to be paid to accompany B. Clearly, this will significantly add to the costs of contact.
No evidence was provided to me regarding any special anxiety that B may experience in travelling by aeroplane alone. Many children of B’s age enjoy air travel and are frequent travellers. It is however a long flight from Melbourne to Darwin, although now happily, it is more usually than not a direct flight. I can understand the wife’s anxieties about a child of B’s age travelling unaccompanied such a long way. She indicated that B has travelled with her on a least two occasions to Brisbane and Melbourne from Darwin. Accordingly, he is accustomed to air travel. B has been described by both the parties and Mrs Loadman as being a shy boy. Being shy, it may be daunting for him to travel alone. For example, it may be difficult for him to ask a flight attendant about going to the toilet or some such other matter. On the other hand, I accept, that the airlines are used to children of B’s age travelling alone and are sensitive to their needs.
Clearly, the person who is best placed to judge whether or not B should be accompanied on the aeroplane is the wife herself. In the circumstances of this case, it is in my view appropriate that if she adjudges it necessary that B should be accompanied that she should be pay the costs associated with it.
It is appropriate at this juncture, to discuss the appropriate orders that should be made in respect of telephone contact between B and his father. The wife has proposed that there should be contact by telephone on one fixed occasion per week. The husband seeks contact two or three times per week. In my view, it is not appropriate to make too many fixed times for telephone contact each week. To do so may have the tendency to make the resident parent a captive to the telephone. This may lead to further rancour between the parties. On the other hand, there is nothing to indicate that if a call was made at some other time and B was available to take it that the wife would not allow the contact to take place. For these reasons, I propose making an order that B have telephone contact with his father each Sunday evening at 6.00pm Melbourne time and on a liberal basis at all other reasonable times.
The husband also seeks the ability to communicate with his son by e-mail. It is unclear to me whether or not the wife will have this facility in her home in Melbourne. It is her position that B is only able to use a computer at the moment for the purpose of playing games. Given his age, I would not expect that he would have any great facility with e-mails. He will need his mother’s assistance to send any e-mail to his father and indeed may need her assistance to read any e-mails the husband may send to him. In this regard, I can see no real difference between orthodox cards and letters that may be sent by a parent to a child. In such circumstances, I do not see any necessity to make a formal order. I have confidence that the wife would assist B with any e-mails just as she would assist him with reading any letters from his father or responding by sending a card or letter on his behalf to his father.
(e) The capacity of each parent to meet the child’s needs (including emotional and intellectual needs)
In my view, the evidence in this regard is clear, particularly bearing in mind the opinion of the family report writer, Mrs Loadman. Both parents are capable of providing for B’s emotional needs. They are both devoted parents.
(f) The child’s maturity, sex, background and other characteristics
B is a child of Aboriginal heritage on his mother’s side. The wife proudly identifies as an Aboriginal person. She raised issues regarding her Aboriginality in her affidavit material and in particular, was critical of the husband for not being supportive of B’s Aboriginal heritage.
The basis for this criticism relates to some unfortunate comments that B made to his mother regarding Aboriginal people in general. Those comments were those of a immature child and I am satisfied were not the result of him absorbing the attitudes of either his father or any other member of his father’s family. The husband strongly rejects any suggestion that he is not supportive of B’s Aboriginality. In particular, he points to the fact that he has been an ambulance paramedic and a police officer in the Northern Territory for several years. As a result, in the course of his work, he has had dealings with many Aboriginal people and has become aware of many aspects of Aboriginal culture. Accordingly, I do not believe that he is dismissive of or insensitive to aspects of Aboriginal culture, particularly as they pertain to B. Similarly, I accept that Ms P has herself lived and worked in many remote Aboriginal communities in the Northern Territory. She too, has an insight and an awareness of the difficulties that some Aboriginal people face in everyday life in the Northern Territory. I do not believe that either the husband or Ms P are likely to be dismissive of or undermining of B’s entitlement to identify in future as an Aboriginal person.
Sadly, in this day and age, it is inevitable that children of mixed ethnicity as B is, will confront some form of racism or prejudice as they grow older. The greatest protection for B against the harmful effect of such prejudice is pride in the various elements of his cultural make-up. I am satisfied that both parties can provide the necessary pride that B will need to protect his cultural identity in future.
(g) The need to protect the child from physical or psychological harm
I am satisfied that neither party would actively expose B to any physical or psychological harm. All the evidence indicates that B is a happy and well-adjusted child. He is much loved by both his parents and much wanted.
(h) The attitude to the child and the responsibilities of parenthood
I am satisfied that both parties have a positive attitude towards B and to the responsibilities of parenthood generally. Both have made a number of sacrifices in order to ensure the best for him. In particular, the husband has foregone employment opportunities outside of Darwin in order to maintain his relationship with his son. As I have indicated previously, it is in my view greatly to his credit that he acknowledges that it is likely to be in B’s best interests to go with his mother to live in Melbourne. Cases involving relocation are agonisingly difficult. They inevitably involve two claims of right. On the one hand, the right of one parent to live how and where he or she chooses. On the other hand, there is the right of a child to maintain a meaningful relationship with that parent, which must inevitably be affected by the relocation. Decisions in such cases are often made by parties without thinking through the entirety of their consequences. This observation applies to both decision to move and decisions to oppose any move. In this case, the husband has decided to put aside his wishes for B’s greater good. He has obviously put B’s concerns before his own and recognised that to compel the wife to stay in Darwin may have adverse consequences on her ability to care for B. He is to be commended for this.
(i) Family violence involving a child or member of the child’s family
This is not a relevant consideration in this matter. For reasons already provided, it is not necessary for me to make any finding of fact about what occurred when the parties separated. Obviously, such times are extremely traumatic for all involved. There is no evidence to indicate that either party is inherently violent or has exposed B either directly or indirectly to any violence and that B needs to be protected from such violence.
(j) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents’ circumstances change and as a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
In this case, there is a certain artificiality about making orders in respect of what is appropriate for B’s living arrangements in twelve months time. This is especially so when there is no certainty that he will return to Darwin at this time. In those circumstances, I believe that the orders that I will make are those most likely not to lead to the parties returning to Court in future. In this regard, I accept that the wife has long found the eight day cycle unpalatable to her. Accordingly, I believe that if it was to be reimposed by orders made at this stage, given the uncertainty surrounding the future circumstances of B, this in itself would be likely to lead to more proceedings. In my view, further proceedings between the parties will not lead to them being able to ameliorate the parenting relationship and will, in fact, lead to greater conflict to the potential detriment of B.
Conclusions
Both the husband and the wife have been devoted parents to B since they separated. As a result, in spite of the tensions that exist in the relationship between them, B is firmly attached to both of them. In those circumstances, I am not concerned that the twelve months absence between father and son will unduly diminish the strong bond between them. However, because of the strength of the bond, I am of the view that there should be as much contact as possible between B and his father in the year that it is anticipated that they will be apart. The husband will bear a greater share of the financial burden of this than the wife. However for both households, the expense will be significant.
In my view, it would artificial to return to the pre-existing residence regime for B in the event that the wife returns to live in Darwin after the year in which she and B will have been living in Melbourne. I am concerned that it is not necessarily a simple matter to reinstate this regime after B will have been away, particularly in the circumstances where the wife is opposed to it and the husband and she each acknowledge that they do not enjoy a co-operative parenting relationship. It need only be recalled that the husband still tape records some of his conversations with the wife to demonstrate the extent of their lack of trust in one another. To reimpose the pre-existing regime may appeal to the husband’s sense of equity and fairness, but that is not one of the criteria for making orders in this case. I am of the view that contact between the husband and B of four nights per fortnight as well as for half of all school holidays will best serve B’s best interests and will maintain the strong existing bond between the two of them and indeed with other members of B’s paternal family.
For all these reasons, I believe that the orders as set out at the commencement of these reasons for judgment are in the best interests of the child concerned.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Brown FM
Acting Associate: C M White
Date: 11 December 2002
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