ANS & JAPS
[2006] FMCAfam 213
•9 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANS & JAPS | [2006] FMCAfam 213 |
| FAMILY LAW – Parenting – interim contact – final orders made in 2003 –application by father to increase contact – final hearing part–heard November 2005 – parties referred to Keeping contact programme – whether change in arrangements in the interim in 9 year old child’s best interests. |
| Family Law Act 1975 |
Cowling v Cowling (1998) FLC 92-801
| Applicant: | ANS |
| Respondent: | JAPS |
| File Number: | PAM 630 of 2002 |
| Judgment of: | Sexton FM |
| Hearing dates: | 3 May 2006 |
| Date of Last Submission: | 3 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2006 |
REPRESENTATION
| Solicitors for the father: | Hugh Byrne Solicitors |
| Solicitors for the mother: | Maclaren Lawyers |
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
MJNS have additional contact with the father on alternate Wednesdays from after school until before school on Thursday, such contact to take place on the Wednesday of the week in which the father’s wife’s children are not living in the father’s household, commencing Wednesday 10 May 2006 and the father to collect and deliver MJNS personally to and from school.
The father to facilitate MJNS telephoning the mother in private on alternate Wednesday evenings when MJNS is in his care.
Unless agreed otherwise between the parties, the father to ensure MJNS attends all soccer training sessions and games when MJNS is in his care.
Unless otherwise agreed between the parties, or unless MJNS is too ill to attend school, the father to ensure MJNS attends school every school day when MJNS is in his care.
Neither party denigrate the other or make negative comments about the other or any member of the other party’s household in the presence or hearing of MJNS.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 9 November 2006 at 9.45a.m. before me for further mention.
Each party have liberty to re-list at 7 days notice.
The parties to participate in the Unifam Keeping Contact program at Parramatta as soon as practicable and to attend all appointments as arranged by Unifam.
Unifam to notify the court forthwith if a party has failed to attend an appointment or failed to cooperate with the program providers.
Unifam to advise the court no later than 48 hours prior to the adjourned date as to the parties’ progress.
AND THE COURT NOTES that the parties are presently on the waiting list for inclusion in the Keeping Contact program at Unifam, Parramatta.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 630 of 2002
| ANS |
Applicant
And
| JAPS |
Respondent
REASONS FOR JUDGMENT
This case concerns a child, MJNS who will be 10 in August. The court made orders on a final basis following a hearing at the end of 2002 when MJNS was 6. Those orders provided for MJNS to live with the mother and have alternate weekends, special days and half school holidays with the father. There were some minor changes to those orders in 2003 which did not affect the face to face time MJNS spent with each parent. Last year, the father applied to increase the amount of time MJNS spends with him. The mother unsuccessfully sought to have the father’s application summarily dismissed and the matter was listed for final hearing in November 2005. Mr Rodd Hibbard, child and family counsellor, prepared a family report and gave oral evidence at hearing. As a result of his evidence, with the consent of the parties, the hearing was adjourned to enable the parties to complete the Keeping Contact program run by Unifam in Parramatta. Unfortunately, despite Unifam’s advice at the time, the parties have not yet started the program because of the heavy demand for places in the program. Unifam anticipate the parties will not commence the programme for another two months. The parties remain in agreement about attending this program, but are in dispute about the interim parenting arrangements.
On 16 November 2005, after hearing submissions from both parties, the Court ordered, for the period of the adjournment between November 2005 and April 2006, that MJNS have additional contact with his father on alternate Wednesday afternoons until 7.00p.m. extending to overnight from the time school started this year. This order was extended until the interim hearing on 3 May 2006. The mother now asks the court not to reinstate any kind of order for contact on alternate Wednesdays. The father asks that alternate overnight Wednesday contact continue until the matter is finally resolved or determined.
Each party filed an affidavit in support of the orders sought and Mr Hibbard prepared a further brief report after meeting again with MJNS on 20 April 2006. Mr Hibbard did not meet again with either parent.
The overriding principle in determining parenting issues is that the best interests of the child is the paramount consideration. The Full Court in Cowling v Cowling (1998) FLC 92-801 held that in determining an interim residence application, the best interests of the child will normally be best met by ensuring stability in a child’s life pending a full hearing of all relevant issues. The Full Court held that if a child is well settled the child’s stability will usually be promoted by an order providing for a continuation of that arrangement. These principles are applied in interim parenting cases generally.
It is not disputed that the parenting arrangements for MJNS were consistent from the end of 2002 until November 2005. MJNS lived with his mother and enjoyed regular contact with his father on alternate weekends and during school holidays. In November 2005, the court ordered that MJNS’s time with his father increase. At the time of the interim hearing on 3 May 2006, MJNS was having contact with his father on alternate weekends, for half school holidays and on alternate Wednesday nights. He has been in this routine since he returned to school in February of this year.
The father says the new routine is working well for MJNS. The mother says the new routine is not working well for MJNS. Given the limited time in which MJNS has been in the new routine, and the differences in each party’s positions as to how he is coping with the change, I am not satisfied MJNS is well settled. I have therefore considered the factors set out in section 68F(2) of the Family Law Act1975 as far as they are relevant to the question of whether or not the overnight Wednesday contact should continue, pending a final determination or resolution of the proceedings:
a)What are MJNS’s wishes and how much importance should the court give those wishes?
b)What is the nature of the relationship between MJNS and each parent and other people in MJNS’s life?
c)What is the likely effect of any change in MJNS’s circumstances?
d)What attitude has each parent shown to the responsibilities of being a parent?
e)What parenting arrangements would minimise the risk of there being further court proceedings about the child?
MJNS’s wishes
The parties hold markedly different views as to MJNS’s attitude to the additional contact on alternate Wednesday evenings. The mother deposes to MJNS saying to her after every occasion of overnight Wednesday contact since February this year “I cried last night and asked if I could ring you. Dad said no.” She said in or around mid-March after a Wednesday overnight contact period, MJNS reported to her “I cried and wanted to come home. Dad said come no, it’s just like the weekend.” The mother deposes to MJNS also saying “I don’t want to stay at Dad’s on Wednesday night. I like having dinner with him but want to come home afterwards.” These comments followed a Wednesday night when the parties had a disagreement on the phone. On Wednesday 29 March 2006, the mother reports MJNS saying “I am too tired and sick to go to school. I will miss you. I don’t want to stay at Dad’s tonight.”
The father deposes to MJNS enjoying their Wednesday nights together. After an unsettled night initially, he reports that MJNS has been sleeping well. He says MJNS is excited to see him at the end of the school day and has enjoyed his father attending school assemblies on Thursday mornings.
In his oral evidence at hearing in November 2005, Mr Hibbard said:
If they [the parents] can have a cessation of warfare then MJNS might be freed up enough to be able to actually talk about what he really wants and how he wants it. I don’t think he’s able to at the moment.
MJNS says what he thinks they want to hear [re both parents]. It’s his way of trying to keep the peace but in fact it creates more havoc.
In his report of April 2006, Mr Hibbard said:
MJNS again presented as a happy, co-operative young boy, who again stressed his wish not to have to choose between or criticise his parents.
MJNS told Mr Hibbard he worries about both his parents when he is away from them. For various reasons he said he would prefer Wednesday night contact to end at 7.00p.m. but if he were to stay overnight he would like to be able to telephone his mother and CPS before bed. Mr Hibbard could not assess the basis for his preference, but suggested MJNS may feel isolated given his step-siblings are not with him. MJNS reported his mother telling him his younger brother misses him. There is no evidence before me to suggest the mother has given MJNS any encouragement to enjoy the additional contact with his father. The evidence is to the contrary.
I find Mr Hibbard’s view set out in his report of April 2006 on MJNS’s expressed wishes inconclusive. I am satisfied MJNS is still finding it difficult to say what he really wants, given his continuing sense of responsibility to look after each parent and to please them both. I therefore give this factor minimal weight.
Nature of MJNS’s relationship with each parent
There is no dispute that MJNS loves both his parents and has a strong attachment to them both. Mr Hibbard says in his evidence in November 2005:
I can’t stress enough that he [MJNS] loves both his parents and he wants to have contact with both his parents, and he stressed that over and over again to me. But I think he’s really feeling stuck about how to deal with it.
This is a factor I take into account.
Likely effect of change in MJNS’s circumstances
MJNS was in a regular routine from the time orders were made at the end of 2002 until November 2005. However, Mr Hibbard said in his report of July 2005 that the arrangements were not working well for MJNS:
MJNS’s difficulties in moving between two households, are exacerbated by the ongoing distrust and communication difficulties experienced by both parents.
These difficulties existed well before the hearing of November 2005 when the order was made for additional contact. It is plain from Mr Hibbard’s second report that nothing has changed to alleviate the pressures MJNS is experiencing. Since November 2005 MJNS has, during school terms, been spending additional time with his father on alternate Wednesday evenings, extended to overnight 3 months ago. MJNS has spent 7 Wednesdays overnight with his father. I have concerns about the possible effect on MJNS if arrangements are changed again pending the parties’ participation in the Keeping Contact program. I give some weight to this factor.
Attitude of each parent shown to the responsibilities of parenthood
Mr Hibbard made these remarks when giving oral evidence in November 2005:
I don’t think MJNS feels he has either parent’s permission to have a relationship with the other parent and therefore it puts him in a bind … the parents have got to support him here and give their permission so that he feels free to have a relationship with the other parent, and with the other step-parent too.
I am not persuaded on the basis of the affidavit evidence before me that either party has yet given MJNS that ‘permission’. The conflict between them continues and MJNS continues to be aware of it. Both parties continue to find fault with the other in front of MJNS. MJNS’s excited reaction to the news his parents were going to be manager and assistant coach for his soccer team gives some insight into the pain he feels at his parents’ estrangement. His sad reaction when told the arrangement has broken down is an expression of his sense of hopelessness: “I knew this was going happen.”
The mother deposes to a conversation she had with MJNS on 29 March 2006 when MJNS did not want to go to school and told his mother he did not want to spend that night [a Wednesday] with the father:
MJNS: I think I like the 7 p.m. dinner better.
Mother: Do you want me to help you talk to your Dad about it.
MJNS: He says no, I have to go.
The mother said nothing positive to MJNS in this conversation about staying overnight with his father.
The father deposes to this conversation he had with MJNS:
Father: I’m not going to be able to help out with the soccer team anymore.
MJNS: Why not?
Father: Well your mum’s the manager of the team and she doesn’t want me to be the assistant coach.
MJNS: I knew this was going to happen. Mum asked me if I wanted you to be assistant coach because if I did she would not be the manager and I said I didn’t want to choose.
The father blamed the mother for his inability to help with the coaching. The mother put MJNS in the invidious position of having to choose between his parents, the very position MJNS tells Mr Hibbard so clearly that he wants to avoid.
While I accept Mr Byrne’s submission that the father showed some insight into MJNS’s emotional needs when he took him to see his brother on CPS’s first day of pre-school, I am not satisfied the father demonstrated insight into his needs when he allowed MJNS to miss his soccer training and when the father kept him home from school on his last day of term. Quite apart from the impact on MJNS of missing out on enjoyable events, the father would have known his decisions would upset the mother and that MJNS would be caught up once again in the dispute between his parents. Mr Hibbard said in November 2005:
one of the things that I was most acutely aware of in this situation is just how the child felt stuck in the middle and felt being pulled in both directions and it seemed that unless the parents are able to develop a better form of communication, he’s going to be just torn apart by it and will eventually have to make a choice, which I don’t think will be in his best interests…
I think there is a battle going on that needs to cease for the child’s sake and if the parents don’t work out a way of stopping the battle, their son is going to be the one that’s damaged and that’s my primary concern.
It seemed to me the hostility was quite entrenched and that there needed to be something major done to stop it.
What orders would be least likely to lead to the institution of further proceedings between the parties?
Mr Tilly submits that given the issues which have arisen since MJNS started overnight contact with the father, if the additional contact continues, more problems are likely to arise leading to further applications to the Court. Mr Tilly submits the court should accept the experiment is over and return to the 2002 arrangements at least until the parties have learned to manage their disagreements more effectively. On the basis of Mr Hibbard’s views about the parties’ attitude to each other, and my finding that nothing has changed significantly since November last year, I am not confident that whatever orders the court makes, the parties will not seek the court’s further intervention. I give this factor minimal weight.
Conclusion
There is merit in the submissions of both parties’ legal representatives. I accept Mr Tilly’s contention that more problems might arise if the additional contact continues, given the parties have already had disagreements about soccer practices and MJNS’s attendance at school. I also accept Mr Byrne’s submission that the father’s evidence suggests MJNS has enjoyed the additional time with his father. It is clear to me that the fundamental issue in this case concerns the parties’ inability to think of MJNS first when making decisions which affect him and the parties’ inability or unwillingness to affirm his relationship with the other party and their partners. I find each party is reluctant to accept responsibility for this situation preferring to blame the other party. MJNS is at risk of serious long term emotional harm as a consequence of his parents’ behaviour, as Mr Hibbard said in oral evidence.
It was anticipated in November 2005 when the final hearing was adjourned that the parties would have completed or at least made substantial progress in the Keeping Contact program by the time the matter came back before the court in April 2006. Had the parties started the program as anticipated, it is likely these proceedings could have been avoided. The delay has been unfortunate for MJNS. Mr Tilly submits the delay will have seriously disadvantaged the mother’s case if the additional contact continues. He says “effectively the father wins”. Mr Tilly argues that the weekday contact was introduced as an experiment and the court should accept the experiment has failed. He urges the court to accept Mr Hibbard’s opinion, set out in his July report, that until the parties have addressed their difficulties, it would be best to leave the 2002 arrangements in place. However, Mr Tilly only referred to part of Mr Hibbard’s evidence. In relation to additional contact Mr Hibbard noted:
I think that could be a positive experience provided that both parents approached it as a positive experience for him, and nothing else.
The mother has not followed Mr Hibbard’s advice. She says nothing in her affidavit about encouraging MJNS to enjoy the extra time with his father or to any steps she has taken to make it a positive experience for him. Her evidence is consistent with MJNS’s remarks to Mr Hibbard about what his mother has said to him about him being away from home on Wednesday nights. The father, in turn, has needlessly antagonised the mother causing stress to MJNS. I find that very little has changed between the parties and hence for MJNS since November 2005 when the hearing was adjourned. I am not persuaded anything will change for the better for MJNS until the parties have spent significant time in the Keeping Contact program.
When I made the order on 16 November 2005 for MJNS to have additional contact with the father, I expressed the order to continue “until the adjourned date”. I said at the time it was a trial period.
I asked the parties to affirm the new arrangements with MJNS, to help him see the new arrangements as positive and approved by both his parents. As I have already said, this has not happened.
I do not agree with Mr Tilley that if the additional contact continues, the father wins. This case is not about one party winning or losing. It is about what is best for MJNS. The purpose of the order for the parties to attend the Unifam course is to help them work out together, focussing on MJNS’s needs, what parenting arrangements will work best for him. This process may lead to MJNS spending more or less time with the father.
Weighing up the various factors, MJNS should continue to have the additional contact with his father until and during the period in which they participate in the Unifam program. To alleviate one of MJNS’s concerns, I have ordered the father to facilitate him calling his mother and CPS on Wednesday evenings and I have ordered the father to ensure MJNS attends soccer training and school each day.
I encourage the parties to re-examine the way they communicate with MJNS about each other and to make greater efforts to positively encourage and affirm MJNS’s relationship with the other party.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 9 May 2006
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