Asquith and Simpson
[2009] FamCA 1356
•5 June 2009
FAMILY COURT OF AUSTRALIA
| ASQUITH & SIMPSON | [2009] FamCA 1356 |
| FAMILY LAW – CHILDREN – With whom a child spends time |
| APPLICANT: | Ms Asquith |
| RESPONDENT: | Mr Simpson |
| FILE NUMBER: | SYF | 3095 | of | 2005 |
| DATE DELIVERED: | 5 June 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cohen J |
| HEARING DATE: | 16 March 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Clifton |
| SOLICITOR FOR THE APPLICANT: | Wyatt Attorneys |
| COUNSEL FOR THE RESPONDENT: | Ms Black |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co |
Orders
That the father and the mother shall have equal shared parental responsibility for K born … September, 2004.
The father shall spend the following time with the said child:
a.until she attains the age of 5 years from 10:00am to 5:00pm on Wednesday 28 March, Thursday 29 March, Friday 30 March, Saturday 31 March, 207 and thereafter on Wednesday, Thursday, Friday and Saturday in each 6th week;
b.until she attains the age of 6 years from 10:00am Wednesday to 5:00pm Thursday and from 10:00 Friday to 5:00pm Saturday in each 6th week;
c.thereafter from
i.after school on Wednesday to 6:00pm on Saturday in each 6th week during school term;
ii.4:00pm on the first Saturday of her Easter, Winter and Spring school vacation periods until 6:00pm on the last day of the first half of each such vacation period;
iii.4:00pm on the first Saturday of her Christmas school vacations when such vacations commence in an even numbered year until 6:00pm on the last day of the first half of each such vacation;
iv.4:00pm on the first day of the second half of her Christmas school vacations when such vacations commence in an odd numbered year until 6:00pm on the last Friday of each such vacation.
a. For the purpose of implementing order 2.a., 2.b. and 2.c.i. the father shall collect the said child from the mother’s home or school and return her to the mother’s home;
b.for the purpose of implementing orders 2.c.ii. to iv. until the said child attains the age of 9 years the mother shall cause the said child to be delivered to the father and collected from him at Brisbane Airport and the father shall collect the said child at and deliver her to the mother at Brisbane Airport and each party shall be responsible for his or her own fares and/or other travel costs and for those of the said child when in that party’s care during travel for that purpose, and;
c.thereafter the mother shall cause the said child to be delivered to the father at Canberra Airport or such other airport closer to Townsville as the father nominates in writing not less than one month prior to the date for delivery and the father shall cause the said child to be returned to the mother at Townsville Airport and the father shall be responsible for and pay 5/6 of the total cost of the child’s airfares incurred pursuant to orders 2.c.ii. to iv. in any calendar year and the mother shall be responsible for and pay the balance.
The mother shall spend time with the said child whenever the child is not spending time with the father pursuant to order 2.
The father shall be entitled to speak to the child by telephone for not more than 10 minutes on 2 occasions each week when she is in the care of the mother at times set by agreement and if there is no agreement between 5:00pm and 6:00pm on Mondays and Fridays.
The mother shall be entitled to speak to the child by telephone for not more than 10 minutes on 2 occasions each week when she is in the care of the father at times set by agreement and if there is no agreement between 5:00pm and 6:00pm on Mondays and Fridays.
That each party shall immediately notify the other if either the child is seriously ill or is admitted or is to be admitted into hospital at such time as the child is spending time with that party.
That the mother and the father shall each provide to the other party a contact number and address details during periods when the other parent is holidaying with the child.
That the father is hereby at liberty to forward letters, emails, mail and any items to the child and that the mother hand these items to the child unopened and the mother shall forthwith advise the father in writing that such item has been given to the child.
That the mother shall provide the father with the following:
a.the names and addresses of the child’s treating medical practitioners and dentist;
b.information of any ongoing medical or dental attention and appointments of the child attends;
c.details of any care arrangements, before and after school, for the child;
d.copies of all school reports, circulars and any other document relating to the child’s schooling or education as soon as practicable after receiving same;
e.the dates of parent/teacher functions, sports carnivals and details of the child’s extra curricular activities. The father is to be provided with at least 7 days notice of these functions, sports carnivals and activities and shall be entitled to attend them.
That the reasons for judgment are reserved.
That costs are reserved until after the publication of the reasons for judgment.
IT IS NOTED that publication of this judgment under the pseudonym Asquith & Simpson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3095 of 2005
| MS ASQUITH |
Applicant
And
| MR SIMPSON |
Respondent
REASONS FOR JUDGMENT
On 21 March 2007 I made the following orders:
1.That the father and the mother shall have equal shared parental responsibility for [K] born […] September, 2004.
2.The father shall spend the following time with the said child:
a.until she attains the age of 5 years from 10:00am to 5:00pm on Wednesday 28 March, Thursday 29 March, Friday 30 March, Saturday 31 March, 207 and thereafter on Wednesday, Thursday, Friday and Saturday in each 6th week;
b.until she attains the age of 6 years from 10:00am Wednesday to 5:00pm Thursday and from 10:00 Friday to 5:00pm Saturday in each 6th week;
c.thereafter from
i.after school on Wednesday to 6:00pm on Saturday in each 6th week during school term;
ii.4:00pm on the first Saturday of her Easter, Winter and Spring school vacation periods until 6:00pm on the last day of the first half of each such vacation period;
iii.4:00pm on the first Saturday of her Christmas school vacations when such vacations commence in an even numbered year until 6:00pm on the last day of the first half of each such vacation;
iv.4:00pm on the first day of the second half of her Christmas school vacations when such vacations commence in an odd numbered year until 6:00pm on the last Friday of each such vacation.
3.a. For the purpose of implementing order2.a., 2.b. and 2.c.i. the father shall collect the said child from the mother’s home or school and return her to the mother’s home;
b.for the purpose of implementing orders 2.c.ii. to iv. until the said child attains the age of 9 years the mother shall cause the said child to be delivered to the father and collected from him at Brisbane Airport and the father shall collect the said child at and deliver her to the mother at Brisbane Airport and each party shall be responsible for his or her own fares and/or other travel costs and for those of the said child when in that party’s care during travel for that purpose, and;
c.thereafter the mother shall cause the said child to be delivered to the father at Canberra Airport or such other airport closer to Townsville as the father nominates in writing not less than one month prior to the date for delivery and the father shall cause the said child to be returned to the mother at Townsville Airport and the father shall be responsible for and pay 5/6 of the total cost of the child’s airfares incurred pursuant to orders 2.c.ii. to iv. in any calendar year and the mother shall be responsible for and pay the balance.
4.The mother shall spend time with the said child whenever the child is not spending time with the father pursuant to order 2.
5.The father shall be entitled to speak to the child by telephone for not more than 10 minutes on 2 occasions each week when she is in the care of the mother at times set by agreement and if there is no agreement between 5:00pm and 6:00pm on Mondays and Fridays.
6.The mother shall be entitled to speak to the child by telephone for not more than 10 minutes on 2 occasions each week when she is in the care of the father at times set by agreement and if there is no agreement between 5:00pm and 6:00pm on Mondays and Fridays.
7.That each party shall immediately notify the other if either the child is seriously ill or is admitted or is to be admitted into hospital at such time as the child is spending time with that party.
8.That the mother and the father shall each provide to the other party a contact number and address details during periods when the other parent is holidaying with the child.
9.That the father is hereby at liberty to forward letters, emails, mail and any items to the child and that the mother hand these items to the child unopened and the mother shall forthwith advise the father in writing that such item has been given to the child.
10.That the mother shall provide the father with the following:
a. the names and addresses of the child’s treating medical practitioners and dentist;
b.information of any ongoing medical or dental attention and appointments of the child attends;
c.details of any care arrangements, before and after school, for the child;
d.copies of all school reports, circulars and any other document relating to the child’s schooling or education as soon as practicable after receiving same;
e.the dates of parent/teacher functions, sports carnivals and details of the child’s extra curricular activities. The father is to be provided with at least 7 days notice of these functions, sports carnivals and activities and shall be entitled to attend them.
11.That the reasons for judgment are reserved.
12.That costs are reserved until after the publication of the reasons for judgment.
These are my reasons for making those orders
The child of the parties, K, was born in September 2004 so was 2½ years old when the final parenting orders were made.
The facts upon which I have made the above orders are quite exceptionally lacking in detail because of the nature of the relationship between the child’s parents. They have never lived together and, until final orders were made, the child had never lived with the father, although there had been two or three occasions when she had remained with him overnight. Otherwise, there has been some supervised, and a little unsupervised, day time contact; usually for two or three hours.
The relationship between her parents has never been one which might be regarded as likely to result in co-operative unconflictual parenting. It was really a casual one based on mutual sexual needs which involved an agreement between them that they would not feel committed to one another. The pregnancy with K was unexpected, at least by the father. The first parental dispute was over the question of paternity. This was ultimately resolved when the Court ordered DNA based parentage testing in May 2005.
The parties met in 2001 because both were members of the Australian Defence Force. During 2003 and 2004 they had, in the father’s words, “short casual liaisons’. He learnt of the mother’s pregnancy by email on 4 February 2004. He was sceptical about his fatherhood from the start and asked for DNA confirmation on 24 September, only a little more than a week after the child was born. The relationship between the parties was such that, even by December 2006 when she swore her affidavit in these proceedings, the mother was able to say “I am personally unaware of the Respondent father’s domestic situation. I do not know his address or the type of accommodation he lives in, although he has revealed it is a heavily subsidised accommodation”. The mother was born in 1969. She lives in Townsville. Her mother lives there too. She has another daughter, H, who was born in October 1996. H lives with the mother’s ex-husband. The mother has contact with her during school holidays.
The mother lived in Sydney when K was born. Her relationship with the father was such that, although she was convinced he was the father, she did not nominate anybody as K’s father for the purpose of her birth certificate. Thus, on virtually the first opportunity to do so, she did not exhibit sufficient parental responsibility to acknowledge the father as K’s father for the child’s sake.
The mother has ceased to be a member of the Defence Force. She is now employed in Townsville as a customer service officer. She works four days each week for about seven and a half hours each day .When she is at work her mother cares for the child except when she attends a childcare centre on one day a week.
The father was born in 1968. He is still in the Defence Force. He has been in the Defence Force since 1984 and until recently was often away; sometimes in international trouble spots for quite long continuous periods. At other times he had the opportunity to come home on weekends.
K was already nine months old when, in June 2005, the father received the parentage test result. He was on route to the Middle East. The mother wanted, and he was prepared to pay, child support on having his fatherhood confirmed. The mother had been seeking child support from him since soon after K’s birth. She is resentful that he did not pay and of his doubt about being the child’s father. He was genuine in his suspicions that he was not the father and, in the circumstances, was justified in refusing to pay without confirmation of paternity. Once he had the test result he was willing to pay child support. However, he did not rush to be tested and, if he was as willing as he claims to act responsibly toward K, if she was his, he could and would have undertaken paternity testing much earlier than he did, and before it was ordered, notwithstanding the difficulties his postings created.
On 8 February 2005 he offered to arrange parentage testing and presumed this would be done less than a fortnight. The father was in the Middle East between 23 May 2005 and 22 November 2005. He was not making Child Support payments but was aware of his obligation to do so if he was found to be the father. On 17 November he emailed the mother telling her he would arrange for these when he returned to Sydney. On 5 December the mother called him by telephone. She was in Townsville and he was in New South Wales. She asked when he would make the payments. The father was able to respond to the effect that he had attempted to make arrangements but that the child support Agency could not finalise them by making an assessment because the mother had failed to give it the DNA test results. The birth certificate could not be relied on because the mother had not named anybody as K’s father. Subsequently, the father used the paternity test results to amend the birth certificate to provide the child with the benefit of having his fatherhood officially recognised. I do not know why the mother did not provide the DNA test results to the Child Support Agency promptly.
On 16 January 2006 the mother’s solicitor sent a most inappropriate letter to the father’s solicitor. It’s contents are disturbingly high handled and counter productive. They warrant reproduction in full:
“We refer to the above and advise our respective clients have been informally discussing settlement of contact issues.
However, we are instructed that your client should not be under any illusion that as a prerequisite to any ongoing discussions that the following apply:
1.The child’s surname is [Asquith] and not [Simpson],
2.Your client is to acknowledge paternity and liability to pay child support as assessed and pursuant to s. 106 Child Support (Assessment) Act 189,
3.Your client is to pay our client’s costs of all matters relating to the paternity and child support issues, and
4.there will be no contact unless and until contact orders are entered”
One cannot say whether the attitude evident from this letter was that of the mother or only her solicitor or both. The inference created by the letter is that contact would be refused unless the father agreed to all the matters referred to in the letter, because only then would there be agreed contact orders.
In late January, the father, in my opinion belatedly, sought to see the child at some time in the next six weeks and sent an email to the mother seeking to arrange to come to Townsville at a time convenient to the mother. There was no immediate response, so he sent two more emails until the mother replied. Her reply was on or before 5 February, so there was no real delay on her part. The reply, with justification, was to the effect that the mother wished to be present when the father saw the child. It does not seem that she opposed contact.
The father was restricted in the times he could go to Townsville. He could only be there from 2 to 6 March, so could only see the child on three days. By 17 February 2006, although the father had obtained leave for this period, they had not agreed on contact. On that date they engaged in a telephone mediation conference with a mediator from the Sydney Registry of this Court. There was an agreement that the father would visit the child in Townsville.
Then, on 19 February 2006, the mother sent an email which enclosed draft consent orders and stated, in my opinion unreasonably in all the circumstances, that the visit would not go ahead until the orders were signed. This letter confirms the approach signalled by the letter of 16 January. Did she think that the father would abduct K? He had only asked for a few hours each day for three days in her presence. She knew he was wedded to the Defence Force. Surely it would have been reasonable to unconditionally agree to the three visits of two or three hours each over three days provided they were supervised. Significant orders she sought had little to do with the child’s welfare, but she tied her financial and other non-welfare claims with matters relating to K’s welfare as the solicitors letter seems to have done. Nevertheless, her letter also signified that she did have some warranted concerns about the father’s attitudes and lack of appreciation of the needs of an infant. He had not had any other children, so was inexperienced with them. Some of the mother’s demands about contact were reasonable.
However, the mother’s linking of her claim for nearly $15,000.00 in legal costs from the father and for payment of child support from the date of her birth in a lump sum as well as for payment by the father of any refund she might have to make to Centrelink as a result of that lump sum payment, for birth costs of $4,000.00 and for the father’s agreement to keep K’s surname that of the mother, Asquith, and to exclude the father’s surname, Simpson, from it with any right to contact was, as the father felt, tantamount to blackmail. The attempt was made in the face of the mother’s own acknowledgement in her letter requesting such orders that it was the child’s right to know and spend time with the father. The mother’s email which accompanied these proposed terms is stated to have been written without the benefit of legal advice, but it has much the same tone as the letter from her solicitors of 16 January 2006. Her demands for money were made with either lack of concern for or lack of understanding of K’s needs.
On 21 January 2006 the father responded to the mother. He informed her he would be coming to Townsville as planned to see the child. He pointed out, as I find to be the fact, that the mother had told the mediator that she had no objection to the father having contact with the child. He had no objection to supervision. He enclosed an amended set of orders he would consent to for the period up to September 2006, K’s 2nd birthday. He largely agreed in this document to the orders the mother sought about contact for that period other than the limit on his visits of four per year. He refused to agree to the mother’s demands about money and about the child’s name.
As the father believed he would not be able to see the child if he went to Townsville on 2 March, he cancelled the trip. On 7 March his solicitors informed the mother’s solicitors of the final contact orders he would be seeking. They are:
1.1That the child [K] born […] September, 2004 [the child] reside with the Mother
1.2That the Father and Mother each have the sole responsibility for making decisions about the day to day care, welfare and development of the child when the child is in their care.
1.3That the Father and the Mother have the joint responsibility for making decisions about the long term care, welfare and development of the child.
1.4That the Father have contact with the child as follows:
1.4.1 Weekend/Weekday Contact
(a)That the Father have contact with the child until the child is 2 years of age, such contact to take place in Townsville for a period of two (2) hours in the afternoon on the Father giving three (3) days notice to the Mother of his intention to exercise contact.
(b)That the Father have contact with the child from the age of 2 to 5 years as follows:
(i) on the Father giving seven(7) days notice to the Mother contact for one week to commence on Saturday at 9.00 am of the first week and conclude Sunday at 6.00 pm on the following week on four separate weeks during the year.
1.4.2Easter Holiday Contact
The Father to have contact with the child from Easter Friday 9.00 am to Easter Monday 5.00 pm in the year 2007 and each alternate year thereafter.
1.4.3School Holiday Contact
One half of all school holidays including Christmas school holidays. If agreement cannot be reached between the parties with respect to school holiday contact then the Father shall exercise contact during the first half of all school holidays.
1.4.4Father’s Day Contact
Father’s Day of each and every year from 4.00 pm the Saturday before Father’s Day until 6.oo pm on Father’s Day, even if it is a non-contact weekend.
1.4.5Child’s Birthday Contact
For a period of not less than four (4) hours on the child’s birthday.
1.4.6Christmas Day Contact
(a)Commencing at 3.00 pm Christmas Eve and concluding at 3.00 pm Christmas Day in the year 2006 and each alternate even ending year thereafter.
(a)Commencing at 3.00 pm Christmas Day and concluding at 3.00 pm Boxing Day in the year 2007 and each alternate uneven ending year thereafter.
1.4.7Further Contact
Such further contact as the parties may from time to time agree between themselves.
1.4.8 Contact Generally
(a) That the Mother deliver the child to the Father’s residence at the commencement of the child’s contact with him and that the Father return the child to the Mother’s residence at the conclusion of the child’s contact with him.
(e) Telephone contact at least twice per week between 5.00 pm and 7.00 pm.
(c) That the Father be at liberty to forward letters, email, mail and any items to the child and that the Mother hand same to the child unopened.
(d) That the Father and the Mother each provide to the other a contact number and address during periods when the other parent has holiday contact with the child.
(e) That either party not relocate from where they live without forthwith first furnishing to the other written notice of the change of address and telephone numbers where they can be reached.
(f) That the Mother provide to the Father copies of all school reports, circulars and any other document relating to the child’s schooling as soon as practicable after receiving same.
(g) That orders 1.4.1 be suspended:
i)During such times as the child is living with the Mother during the school holidays
ii)From 10.00 am until 6.00 pm on Mother’s Day each and every year, even if it is a contact weekend.
(h) That the Mother provide the Father with suitable clothing and any prescribed medication for the child or such times as he has contact with her and that the Father return the clothing and any prescribed medication to the Mother when the child is returned to her.
(i) That the Mother provide the Father with the following:
i)The names and addresses of the child’s treating doctors and dentist;
ii)Information of any ongoing medical attention/ appointment the child attends; and,
iii)The dates of parent/teacher functions, sports carnivals and details of the child’s extra curricular activities.
(j) That each party immediately notify the other if either child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.
(k) That each party cause the child to telephone the other party at least twice per week when the child is on holidays with that party.
(l) That neither party denigrate the other or members of their families to the child or in the presence of the child or at all.
1.5 That the Father have contact with the child as follows once the child turns 5 years:
1.5.1Weekend/Weekday Changes
(a)That the Father have contact with the child as follows:
(i)On the Father giving seven (7) days notice to the Mother contact for one week to commence on Saturday at 9:00 am of the first week and conclude Sunday at 6.00 pm on the following week on four separate weeks during the year;
(i)Or in the alternative if the Fahter lives within the vicinity of the child contact each alternate weekend from Friday 6.00 pm to Sunday 6.00 pm. Where the weekend is a long weekend contact shall continue to 6.00 pm on the Monday.
1.5.2 School Holiday Contact
One half of all school holidays including Christmas school holidays. The Father to exercise contact in the first half of all school holidays in the uneven years and the Father to exercise contact in the second half of all school holidays in the even years.
1.5.3 Father’s Day Contact
Father’s Day of each and every year from 4.00 pm the Saturday before Father’s Day, even if it is a non-contact weekend.
1.5.4 Child’s Birthday Contact
For a period of not less than four (4) hours on the child’s birthday.
1.5.5 Further Contact
Such further contact as the parties may from time to time agree between themselves.
1.5.5 Child’s Birthday Contact
For a period of not less than four (4) hours on the child’s birthday.
1.5.6 Contact Generally
(a)That the Mother deliver the child to the Father’s residence at the commencement of the child’s contact with him and that the Father return the child to the Mother’s residence at the conclusion of the child’s contact with him.
(b)Telephone contact at least twice per week between 5.00pm and 7.00 pm.
(c)That the Father be at liberty to forward letters, email, mail and any items to the child and that the Mother hand same to the child unopened.
(d)That the Father and the Mother each provide to the other a contact number and address during periods when the other parent has holiday contact with the child.
(e)That either party not relocate from where they live without forthwith first furnishing to the other written notice of the change of address and telephone number where they can be reached.
(f)That the mother provide to the Father copies of all school reports, circulars and any other document relating to the child’s schooling as soon as practicable after receiving same.
(g)That orders 1.5.1 be suspended:
i.During such times as the child is living with the Mother during the school holidays.
ii.From 10.00 am until 6.00 pm on Mother’s Day each and every year, even if it is a contact weekend.
(h)That the Mother provide the Father with suitable clothing and any prescribed medication for the child for such times as he has contact with her and that the Father return the clothing and any prescribed medication to the Mother when the child is returned to her.
(i)That the Mother provide the Father with the following:
(i)The names and addresses of the child’s treating doctors and dentist;
(ii)Information of any ongoing medical attention/ appointment the child attends; and
(iii)The dates of parent/teacher functions, sports carnivals and details of the child’s extra curricular activities.
(j)That each party immediately notify the other if either child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.
(k)That each party cause the child to telephone the other party at least twice per week when the child is on holidays with that party.
(l)That neither party denigrate the other or members of their families to the child or in the presence of the child or at all.
1.6 That the Application of the Mother otherwise be dismissed.
On 19 March 2006 the mother texted the father and offered that the father could see the child at a park not far from the father’s location. The father was at work and not able to arrange to leave work immediately. The mother would not, at 3.25pm, wait any longer. The father had had no idea that the mother would be in the area before receiving the text. Had he been given prior notice he would have been able to arrange for time off to meet the child. The mother must have known this and is likely to have made the offer for tactical reasons.
Interim orders were made on 19 May 2006 by consent. The orders were:
1.1That the child [K] born […] September, 2004 (“the child”) reside with the mother.
1.2That the Father and Mother each have sole responsibility for making decisions about the day to day care, welfare, and development of the child when the child is in their care.
1.3That the Father have contact with the child as follows:
1.3.1Weekend/Weekday Contact
(a) That the Father have contact with the child for either a three or four day period every six (6) weeks. Such contact to take place in Townsville for a period of two (2) hours in the morning and a further two (2) hours in the afternoon on the Father giving three (3) days notice to the Mother of his intention to exercise contact.
(b) In the event that the Mother travels to New South Wales the Mother shall give the Father notice of her travel arrangements and shall do all acts and things to facilitate contact between the child and the Father for a minimum of three (3) hours per day on any visits to New South Wales. The Mother is to give the Father a minimum of forty-eight (48) hours notice of such travel arrangements.
(c) That, if the Father lives within the vicinity of the child the Father shall have each alternate weekend from Friday 6.00pm to Sunday 5.00pm. Where the weekend is a long weekend contact shall continue to 5.00 pm on the Monday. Such weekend contact to commence from 1st February, 2007. Such contact to occur in Townsville.
(d) The parties shall discuss arrangements for changeover for contact if and when the Father lives within the vicinity of the child.
1.3.2Commencement of overnight contact
The child shall commence overnight contact on the Father’s Day weekend 2006 and from that weekend until 1st December, 2006 the Father shall have contact on one night of one weekend in October 2006 and November 2006.
1.3.3Further contact
Such further contact as the parties may from time to time agree between themselves.
1.3.4Contact Generally
(a) That the Mother deliver the child to the Father’s residence in Townsville at the commencement of the child’s contact with him and that the Father return the child to the Mother’s residence at the conclusion of the child’s contact with him.
(b) That either party not relocate from where they live without forthwith first furnishing to the other written notice of the change of address and telephone numbers where they can be reached.
(c) That the Father to have an appropriate Australian Standard Child Restraint for the child.
(d) That the Mother provide the Father with suitable clothing and any prescribed medication for the child or such times as he has contact with her and that the Father return the clothing and any prescribed medication to the Mother when the child is returned to her.
(e) That the Mother provide the Father with the following:
(i)The names and addresses of the child’s treating doctors and dentist;
(ii)Information of any ongoing medical attention/ appointment the child attends.
(f) That each party immediately notify the other if either child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.
1.4That the Father have further contact with the child as follows:
1.4.1Christmas Holiday Contact
That the father shall have contact on Christmas Day December 2006 for a continuous period commencing at 3.00 pm on Christmas Day for a period of three consecutive days to return the child on or before 5.00 pm on 28th December, 2006. Such contact is to take place in Townsville.
1.4.2School Holiday contact
That the father shall have contact with the child for the second half of each Queensland school holidays after 1st February, 2007 until further order. The Father to have the first half of the Christmas school holidays in the even years beginning in 2008 and each even year thereafter and the second half of the Christmas school holidays in the uneven years beginning in 2008 and each uneven year thereafter.
1.4.3Contact in Townsville until the child reaches the are of 3 years.
That the Father will contact the Mother should the child shows signs of distress during the contact period.
1.4.4Child’s Birthday Contact
For a period of not less than four (4) hours on the child’s birthday.
1.4.5Further Contact
Such further contact as the parties may from time to time agree.
1.4.6Contact Generally
(a) That the Mother deliver the child to the Father’s residence in Townsville at the commencement of the child’s contact with him and that the Father return the child to the Mother’s residence at the conclusion of the child’s contact with him.
(b) That either party not relocate from where they live without forthwith first furnishing to the other written notice of the change of address and telephone numbers where they can be reached.
(c) That the Father to have an appropriate Australian Standard Child Restraint for the child.
(d) That the Mother provide the Father with suitable clothing and any prescribed medication for the child for such times as he has contact with her and that the Father return the clothing and any prescribed medication to the Mother when the child is returned to her.
(e) That the Mother provide the Father with the following:
(i)The names and addresses of the child’s treating doctors and dentist;
(ii)Information of any ongoing medical attention/ appointment the child attends.
(f) That each party immediately notify the other if either child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.
(g) That neither party denigrate the other or members of their families to the child or in the presence of the child or at all.
(h) That the Father is not to have the child’s haircut or body pierced.
The next communication between the parties was on 25 May 2006 when the father wrote to the mother proposing times to visit K. The letter was designed to avoid uncertainty. The contact he proposed complied with the orders. The proposed visits were:
2-5 June 2006
14-17 July 2006
31 August – 3 September 2006
12-15 October 2006
25-27 November 2006
The father indicates that the mother was obstructive about these. She did, on a few occasions, attempt to avoid contact for reasons which relegated the pressing need for the child to get to know and become attached to her father behind matters of far less importance to the child’s welfare. The evidence is that the visits went ahead, except that the mother insisted that the October dates be changed but the visit was for four days.
The consent orders do not provide for any supervision while the father had contact. The inference from order 1.4.3 is that they would not be supervised. The mother insisted on supervision on most occasions. At K’s age, because K had not earlier met her father and because the visits were infrequent for a child of K’s age; insufficiently frequent for K to recall the father well between visits, the mother’s stance was reasonable and in K’s best interests. The father, to his credit, appears to have realised her presence was necessary on most occasions.
The orders provided that overnight visits were to commence on the evening of 2 September. The schedule of 25 May served as notice of his visits. By it, there should also have been overnight visits on one evening in October and one in November. The mother permitted two unsupervised visits on 1 September and one each on 2 and 3 September but would not comply with the order for overnight contact. She claimed that the child would be too distressed. She alleges that the child was distressed at a changeover in July and would not be ready for an overnight visit in September. At K’s age there was substance in the mother’s stance, although I cannot say whether or not her claim was true. What was done in September shows that the parties can compromise, even in the face of rigid orders.
In October the father had an unsupervised period from 10am to 4pm on the 20th. On the 21st he spent from 5pm to the next morning with the child without any presence of the mother or her parents who had supervised on other occasions. In November there were two unsupervised periods leading up to overnight from 9am to 9am the next day. According to the mother, the child returned from this visit in distress. Yet there is no specific claim of distress on the October overnight contact. The mother, however, makes the general allegation that the child was stressed and disturbed as a result of each visit. The mother also says that when the child was with the father in September the father’s parents were with him. She seems to suggest that he needed their assistance with the child.
It is much more likely that the paternal grandparents were there simply because they wanted to see their granddaughter. The father acted reasonably and properly in having them present. The mother seems to be keen to take advantage of the fact that the paternal grandmother told her that, once, they had trouble “settling” her. I cannot regard that as an indication of anything except a normal situation for a two year old who barely knows her carers. Even if the father did feel he needed help when first caring for the child, this does not reduce the child’s right to be cared for by him to the optimal extent the situation will allow. Most parents learn on the job.
The mother did prevent the father from having a few periods he was entitled to under the orders and, overall, she has been somewhat obstructive. She wished to limit appropriate contact.
The mother says the father has been too demanding because he attempted to change arrangements late after they had been made. On my understanding of the facts, he has not attempted to change arrangements at the last minute and has always given much more than reasonable and adequate notice, with few attempts to change arranged dates except as a response to the mother’s attempts to do the same. I regard both parties as somewhat difficult and inflexible and as lacking the ability to understand the other’s point of view or needs. In fact, both seem to have very poor capacity for empathy and to maintain close interpersonal relationships.
It is the distress the mother says the child feels which is the main reason she opposes the contact orders the father sought at the hearing. The mother’s other argument is that K needs to see her sister H as much as possible during school holidays. She also correctly argues that the contact K should have with the father should be determined by her age, level of development and familiarity with the father. She says that the father will not see K enough in her early years to gain sufficient familiarity with and confidence in him to see him as much as he asks. There is much substance in this argument. Nevertheless, the force of much of what the mother argues is undermined by the obviousness from her affidavit that contact is being used as a bargaining tool to advance her continuing financial claims. Her child support claim was settled on 7 June 2006 by consent orders and there can be no suggestion that the father is still, in any manner, delinquent in meeting his statutory obligations. On the evidence, I cannot regard him as having any obligation to maintain K beyond what has been administratively assessed. He has accepted that his obligation for child support commenced on 22 September 2004 and is not behind in payment of it. By the same consent orders, the mother properly agreed that in K’s birth certificate she be registered as K Simpson Asquith.
On 12 January 2006 the mother filed an amended application which, for the first time, stated the parenting orders she sought. Although theses orders were drafted by a solicitor, they are grossly defective. They are quite unenforceable for the period before K turns six. They are:
1.That the said child reside with the Applicant Mother.
2.That the Applicant Mother have the sole parental responsibility for the day to day and long term care, welfare and development of the said child.
3.That the said child have contact with the Respondent Father, following the introduction of the said child before she attains the age of six (6) as follows:
(a)The Respondent Father to contact the Applicant Mother to arrange contact;
(b)As to 3 (a), the Respondent Father is to give 14 days notice by phone and/or in writing;
(c)That the child is not to travel on her own to see the Respondent Father, he is to collect the child from the Applicant Mother’s residence;
(d)All contact is to be in Townsville, in case the child is too distressed and needs the Applicant Mother, especially in her early years;
(e)As outlined above (1) to (d) the Paternal grandparents are to have contact with the child.
4.That the said child have contact with the Respondent Father, when she attains the age of six (6) as follows:
(a)each alternate weekend from the cessation of school to 4pm on Sunday;
(b)half of all school holidays, allowing for alternate Christmas Day and Easter holiday periods;
(c)Respondent Father’s day;
(d)The Respondent Father’s birthday, as it is on, […] January, to have contact between 10.00am to 4.00pm
(e)Telephone contact at all times as agreed between the parties;
(f)Respondent Father, if he so wishes, attend any school and/or recreational and sporting activities that the child may be involved with;
(g)Respondent Father responsible for all travelling costs.
(h)As outlined above (a) to (d) the Paternal grandparents are to have contact with the child
5.That neither party denigrate the other to or in front of the child.
At the hearing, the mother did not maintain this position. By then, she asked that the orders to the effect of the interim orders which were made by consent in August 2006 be continued except that she opposed the order for school holiday contact; order 1.4.2, and offered nothing in place of it. Essentially, she thus asked for orders that the father have unsupervised contact with the child each six weeks over a period of three or four days with contact on two of those days for two hours each morning and afternoon with, on the 3rd and 4th days, overnight contact. The starting and ending times are not mentioned. All contact until the child turns three years would be in Townsville and there would be four hours of contact on the child’s birthday and block contact from 3pm on Christmas Day until 5pm on 28 December; a period of more than three days. It is difficult to understand, in view of the Christmas and overnight provision, why the mother opposed whole days on the other days as well as more periods overnight despite her general claim that contact was disturbing and upsetting for the child and her claim that the father is in the habit of binge drinking on weekends. There is no suggestion that he has appeared to be affected by alcohol when he visited the child.
At the hearing on 11 March 2007, the husband provided the Court with an Amended Response to an Application for Final Orders. His most up to date claim, based on it is:
1.That the child [K] born […] September, 2004 live with the Mother.
2.That the Father and Mother each have equal shared parental responsibility.
3.That the Father and Mother each have sole responsibility for making decisions about the day to day care, welfare and development of the child when the child is in their care.
4.That the Father and Mother have joint responsibility for making decisions about the long term care, welfare, schooling and development of the child.
5.That the Father spend time with the child as follows:
5.1 Until the child attends school the child shall spend time with the Father as follows:
(a)Commencing at 12.00pm on 23rd December, 2007 and ceasing at 12.00 pm on 20th January, 2008.
(b)Commencing at 12.00 pm on 27th December, 2008 and ceasing at 12.00 pm four weeks later.
(b)Commencing at 12.00 pm on 23rd December, 2009 ceasing at 12.00 pm four weeks later.
(b)On the father giving to the Mother twenty-one (21) days notice in writing of his intention to spend time with the child to commence on a date nominated by the Father and to conclude within two (2) weeks after commencement of such date or such other time lesser than two (2) weeks that the Father shall nominate.
5.2 Father’s Day prior to the age of 5
Father’s Day of 2007, 2008 and 2009 the Father shall spend time with the child from 12.00 pm on the Friday before Father’s Day until 4.00 pm on Father’s Day, even if it is a non-contact weekend.
5.3 Father’s Day after the age of 5
Father’s Day of each and every year the Father shall spend time with the child from completion of school the Friday before Father’s Day until 5.00 pm on Father’s Day.
5.4 Child’s Birthday prior to the age of 5
(a) The Father shall spend time with the child from 9.00 am on [the day before the child’s birthday] September, 2007 until 12.00 pm on [the child’s birthday] September, 2007.
(b) The Father shall spend time with the child from 12.00 pm on [the child’s birthday] September, 2008 until 5.00 pm on [the day after the child’s birthday] September, 2008.
5.5 Child’s Birthday after the age of 5
(a) The Father shall spend time with the child from 12.00 pm or completion of school on [day before the child’s birthday] September, 2009 until 12.00 pm or commencement of school on [child’s birthday] September, 2009 and each year thereafter ending in odd numbers.
(b) The Father shall spend time with the child from 12.00 pm or completion of school on [the child’s birthday] September, 2010 until 5 pm or commencement of school on [day after the child’s birthday] September, 2010 and each year thereafter ending in even numbers.
5.6 Father’s Birthday
The Father shall spend time with the child each and every year from 12.00pm on […] January until 12.00pm on […] January.
5.7 Easter Holiday Contact prior to the age of 5
The Father shall spend time with the child from 9. 00 am Easter Friday until 5.00 pm Easter Monday in the years 2007 and 2009.
5.8 Easter Holiday Contact after the age of 5
The Father shall spend time with the child from completion of school on the Thursday prior to Easter until 5.00 pm on Easter Monday in the year 2011 and each alternate year thereafter
5.9 School Holiday Contact commencing in the year 2010
Christmas School Holidays
(a)The Father shall spend time with the child from 12.00 pm on 27th December, 2010 and ceasing at 12.00 pm four weeks later. Such contact commencing December 2010 and each alternate year thereafter
(b)The Father shall spend time with the child from 12.00 pm on 23rd December, 2011 and ceasing at 12.00 pm four weeks later. Such contact commencing December 2011 and each alternate year thereafter ending in odd numbers.
Other School Holidays
(c)The Father shall spend time with the child for the first two weeks of all school holidays.
6.Father to spend time with the child in Townsville
To give effect to the abovementioned orders the Father shall spend time with the child in Townsville or such other town or city as the parties shall mutually agree until the child turns 3 years of age.
7.Parties not to relocate
That either party not relocate from where they live without giving one month’s notice and furnishing to the other written notice of the change of address and telephone numbers where they can be contacted, details of proposed housing arrangements for the child and schooling for the child.
8.Parties not to disclose certain matters in the presence of the child.
That neither party to discuss within the hearing or in the presence of the child matters that are in dispute between parties and that neither party denigrate the other or members of their families to the child or in the presence of the child or at all.
9.Suitable clothing for child
That the Mother provide the Father with suitable clothing and any prescribed medication for the child for such times as the Father spends time with the child and that the Father return the clothing and any remaining prescribed medication to the Mother when the child is returned to the Mother.
Generally
10.That each party immediately notify the other if either the child is seriously ill or is admitted or is to be admitted into hospital at such times as the child is living with that party.
11.That the Mother and the Father each provide to the other party a contact number and address details during periods when the other parent is holidaying with the child.
12.That the Father be at liberty to forward letters, email, mail and any items to the child and that the Mother hand same item to the child unopened and the Mother forthwith advise the Father that such item has been given to the child.
13.That the Mother provide the Father with the following:
(a) The names and addresses of the child’s treating medical practitioners and dentists.
(b) Information of any ongoing medical attention and/or appointments the child attends.
(c) Details of any day care arrangements, before and after school care for the child.
(d) Copies of all school reports, circulars and any other document relating to the child’s schooling or education as soon as practicable after receiving same.
(e) The dates of parent/teacher functions, sports carnivals and details of the child’s extra curricular activities. The Father be provided with at least seven days notice of these functions/activities.
(f) The Father be at liberty to obtain copies of the documents referred to in sub-paragraph (d) and (e) hereof from the child’s school or other organisation associated with the child’s extra-curricular activities.
14.Implementation of orders for the time spent with child prior to the age of 3
That the Mother deliver the child to the Father’s nominated address in Townsville at the commencement of the child’s contact with the Father and that the Father return the child to the Mother’s residence at the conclusion of the child’s contact period with the Father.
15.Implementation of orders for the time spent with child after the age of 3
(a) To facilitate the child spending substantial time with the Father, the Mother shall do all acts and things to ensure that the child travels by air ticket to enable the child to return to the Mother’s residence in Townsville.
(b) To facilitate this order the Father shall supply the Mother with an airline ticket to enable the child to travel to his residence by air and shall do all acts and things to ensure that the child is returned to the Mother using the airline ticket which the Mother has purchased for this purpose.
(c) To facilitate this order the Mother shall accompany the child when the child travels from the Mother’s residence to the Father’s residence to enable the child to spend substantial time with the Father and the Father shall accompany the child when he returns the child to the Mother’s residence in accordance with these orders.
(d) Clause 13(c) may be varied by mutual agreement of the Mother and the Father to permit the child to travel by airline as an unaccompanied minor when both the Mother and the Father agree that the child is old enough to travel on an airline as an unaccompanied minor.
16. Mother travelling to New South Wales
In the event that the Mother travels to New South Wales the Mother shall give the Father notice of her travel arrangements and shall do all acts and things to facilitate contact between the said child and the Father for a minimum of three hours each day the Mother is in New South Wales. The Mother shall give the Father a minimum of seven days notice of such travel arrangements.
17. Further time spent with the Father
(a) Such further time spent with the Father as the parties may from time to time agree between themselves.
(b) That time spent with the Father be suspended from 10.00 am until 6.00 pm on Mother’s Day each year.
18. Telephone Contact
(a) That the Father have telephone contact at all reasonable times with the child.
(b) That each party cause and facilitate the child to telephone the other party twice per week when the child is on holidays with that party.
(c) Should the child be unavailable to take the said telephone call then each party will ensure that the child returns the telephone call as soon as practical
19. Father residing in Cairns
That if the Father resides in Cairns in addition to contact pursuant to these orders the Father shall spend time with the child every third weekend from 6.00 pm on Friday until 5.00 pm on Sunday. To facilitate such time spent with the Father, the Mother and Father shall arrange changeover at a half way point to be agreed by both parties.
20.Father residing in Townsville or within the local vicinity of the child
In the event that the Father resides in Townsville or close to the vicinity of the child’s residence the Father shall spend time with the child as follows in addition to the abovementioned orders:
(a) From completion of school on Tuesday until commencement of school on the Monday of each alternate week.
(b) In the alternate week from completion of school on Wednesday until commencement of school on Friday
NOTATION:
21.That all times that the Father spends with the child are local time.
22.That all school holiday periods are as per Queensland school holidays.
The father’s case is quite simple. It is that it is in the child’s best interest that she grows up knowing and having a close relationship with him and that the orders he seeks are the most appropriate given the restrictions on contact of distance and cost. He denies that the child is disturbed and upset by contact, but has candidly confirmed that on one or two occasions she has been grizzly or has had a tantrum and at other times can be distracted by the presence of other adults when he attempting to gain her attention. He claims that usually there has been few or no problems and that, when it is otherwise, the child has been adversely affected by the mother’s anxiety or opposition to contact. At times the child has been quite affectionate towards the father.
My assessment of the father is that he is a credible witness, but probably not very sensitive to the child’s moods. His description of events is likely to be fairly true. He is certainly able enough to learn to care for a child properly even if he has not so far had much experience.
From Tuesday 26 December 2006 to 29 December 2006 the father spent time with the child. On the 26th, when the mother delivered the child, she told the father she would phone the child twice each day at 8am and 6pm. She should have known that such frequent calls would be likely to make the child fret for her. The father was conscious of the order which provided for him to contact the mother if the child showed signs of distress and intended to abide by it, but agreed to the mother’s demands so conflict would be minimised. The father must have suspected the mother’s attitude and motive because, although by Wednesday 27 at 9am when the mother telephoned the child there had been no problems with the child and the mother had no reason to believe there had been, the father put the conversation between the mother and the child on loudspeaker and heard this:
“Did you cry for mummy? I had no-one to cuddle. I miss you, do you miss mummy? Do you want mummy to pick you up? Do you want to come home to mummy? Who else is there? Is there any other children? Have you had breakfast?”
The questions were repeated often during the conversation which lasted about ten minutes. The child became very upset and cried during it. She stayed unsettled for some time. The next morning during the mother’s telephone contact with the child the father also activated the loudspeaker and heard the mother say:
“I miss you, do you miss mummy? Do you want mummy to pick you up? Do you want to come home to mummy? Is daddy being nice? Don’t you want daddy?”
The father heard sounds on the telephone which, he suggests, indicated the mother was recording the conversation. She has not produced any recording or record of it to contradict what the father says he heard. I am conscious that to do so would be to admit an illegal act, but this would not necessarily have made the recording inadmissible because the issue of the child’s best interests is the major concern. Any illegality could have been dealt with in the proper place according to its merits. I think it is likely, in view of the questions the father says the mother asked the child, her prior occupation as a Defence Force officer and her lack of insight and poor judgment, that she did record the conversation.
When the father returned the child to the mother at 4pm on 29 December the mother would not allow the child the time to say goodbye to her father and abused the father because he had turned his telephone off at times and the mother could not check up on the child. The father says that the only time the child was upset during the contact was when the mother spoke to her by telephone on the Wednesday. He said she was affectionate towards him and coped well with the situation. This is probably close to the reality. The only resistance the child showed to doing anything with the father was having her photo taken with him. She said “mummy said no” as she shied away. It is significant that the mother was aware of criticism of herself because no photographs of the father had previously been available to the child.
Before the hearing in March 2007 the father had contact with the child from the morning of Thursday 22 February to the morning of 25 February. The contact was uneventful and the child was happy and loving toward the father. The only incident was on the child’s return to the mother. The mother attempted to grab the child while the father was lifting her from her car seat and in doing so elbowed and pushed the father and attempted to drag the child from his arms. She kneed the father at the same time. Once she got the child she would not allow the father to say goodbye to her and said “You will never see this girl again you bastard”.
In support of her case in reply the mother says the father lives in single male quarters and that his attitude is shown by his failure to attempt to make proper provision for contact. She claims he cannot even make appropriate arrangements to meet the demands of the orders he seeks in that he does not have sufficient leave entitlements. She also says he initially rejected K and denied paternity because he is not committed to her. I think these proceedings show his commitment. He was entitled, and not lacking responsibility or commitment in all the circumstances, to want proper confirmation of his paternity.
The father says he is not being deployed again and is thinking of leaving the Defence Force and moving to Northern NSW or Townsville. That he is considering moving to somewhere other than Townsville raises a question about his attitude to his parental obligations and his understanding of a child’s emotional needs. It is paradoxical that his parents live on the NSW North Coast and he wants to be near them. In oral evidence he agreed that the regime for contact he proposed was less than ideal but said it was the best he could do in view of his work obligations, leave entitlements and the cost of contact. He pointed out that contact visits cost him $1,100.00 for a weekend from his $68,000.00 p.a. gross pay. He gets two subsidised visits to the child per year, and his real wage is slightly more than his pay because he receives free medical and dental care and subsidised accommodation. He is permitted to take all the unpaid leave he needs to see the child as he proposes.
The father says he can make proper arrangements for the contact with the child which he seeks. He claims to live in a three bedroom townhouse with appropriate facilities. He does not say whether he lives there alone or whether it is Defence Force property and whether he has any control over who also lives in it. He does say that “[K] will have her own room for any contact periods which includes her own bed linen and toys”. This infers, because of his employment, that the occupant of the room, presumably another serviceman, will vacate it when the child visits. This does not mean it is not suitable for use during visits. I do not assume the 3rd bedroom has no occupant. It is probably occupied by another serviceman. This, too, does not make the father’s home unsuitable for contact visits. It will not be unsuitable until the child’s age makes her feel uncomfortable in such surroundings. By this time it is likely that the father will no longer live in this type of accommodation and is likely to have left the Defence Force. When K is 10 years old the father will be 54 years old.
When the father visits the child in Townsville he usually stays in a cabin at a tourist park which effectively has two bedrooms. There is nothing to suggest it is not suited to overnight and block contact.
The father wishes that the child will develop a relationship with her paternal grandparents. The paternal grandparents want this. They live in northern New South Wales. The father’s description of their home makes it appear to be appropriate for the child to visit, including overnight and in blocks. There is nothing to suggest there is anything about the paternal grandparents which makes it inappropriate for the child to be cared for by them from time to time. The mother kept up contact with them while the father was denying paternity because she wanted the child to have a relationship with them. They have met the child but the child has not had the opportunity to develop a proper relationship with them.
The relevant objects of the Family Law Act 1975 as expressed in s.60B determine how to approach residence and contact disputes between parents. This section brings to the fore the Court’s duty to ensure that actual rather than theoretical best interests of children are served. The objects of the Act are to ensure the meaningful involvement of both parents in the child’s life, to protect the child physically and emotionally, to ensure the child gets adequate and proper parenting and to ensure parents meet their parental responsibilities. These objects are based on the principles that a child has a right to know and be cared for by both its parents, has a right to spend time and communicate with them regularly and that parents should share parental duties and responsibilities. All of these principles are still subject to the overall best interests of any child who is the subject of the parenting dispute. I have borne these matters in mind when making the parenting orders which were made.
The consequence of doing so tends to emphasise the assumption which must be made in parenting proceedings that a child will be better off spending time with a parent than it will be if denied that time unless it is shown that to do so would be contrary to a child’s welfare. There is also a clear statutory presumption (s 61DA) that equally shared parental responsibility is in a child’s best interests unless there are reasonable grounds to believe there has been child abuse or violence in the child’s family. Equally shared parental responsibility does not equate with equal time with each parent.
Here, I do not need to depart from the presumption. There is no allegation of family violence with the exception of a very insignificant incident. The parties did seek to canvass the issue of the degree of parental responsibility each should have. The mother originally sought sole parental responsibility and the father asked that it be equally shared. They ultimately either explicitly or tacitly assumed that there should be equally shared parental responsibility. In this case there is a need to make a specific order. There is a risk that the mother will assume she has the sole decision making role if no order is made and the statutory situation is not stated clearly. Unless it appears to be otherwise after s.60CC is considered, there should be equally shared parental responsibility. K should have the benefit of knowing that each parent has contributed in that way to her upbringing.
Section 65DAA(1) of the Act requires that if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for a child, the Court is to consider whether spending equal time with each parent would be in the child’s best interests and whether such an order would be reasonably practical and, if it is, consider making such an order.
If, in those circumstances, the Court does not make an equal time order, the Court must consider whether it would be in the child’s best interest to spend substantial and significant time with each parent if it is reasonably practical for it to do so, and if it is reasonably practical, consider making an order with that effect. (Section 65DAA(2)).
That the Court is required to consider making an equal time order does not create any presumption that such an order is to be preferred. Thinking about whether such an order should be made is quite different from giving it preference. Before s.65DAA(1) was enacted the Court would consider making an equal time order whenever it might be a practical and realistic possibility. This section has not altered the basis on which residential orders are made, nor has it altered the Court’s emphasis in making them. For time spent to be substantial and significant by section 65DAA(3), the days spent by the child with a parent must include some weekends, some holidays and some weekdays and must also allow the parent to be involved in the child’s daily routine, events which are significant to the child and allow the child to be involved in significant aspects of the parent’s life.
To decide whether it is reasonably practical for a child to spend equal or substantial and significant time with a parent the Court must pay attention to the distance the parents live from one another, their present and likely future ability to communicate with one another and negotiate and resolve difficulties in implementing the arrangements needed for the spending of such time as well. The parents’ current and future capacity to implement the appropriate arrangements as well as the impact the arrangements will have on the child and any other relevant matters must also be considered (s. 65DAA(5)).
As has been stated, I must consider what orders would be in K’s best interests. It is the paramount matter to be acted on.
Section 60CC of the Act provides a code for deciding what is in a child’s best interests. There are two primary considerations. One is the benefit to the child of having a meaningful relationship with both parents. The other primary consideration is the need to protect the child from harm, abuse, neglect or family violence.
There are other considerations which, pursuant to s.60CC(3), the Court must undertake in deciding what is in K’s best interests. For a child to have meaningful involvement with a parent it needs to know and have an attachment to that parent. The better it knows the parent and the more attached it is to the parent the more meaningful the involvement is able to be. In these proceedings, even if the father is able to have the contact he seeks, there will be a significant impediment to the development of an ideal relationship between father and daughter because in the foreseeable future the level of contact will not be sufficient to allow an optimal relationship to develop. Initially, the periods between visits will be too long for a child of K’s age. Of course, the suggestions that there should be as much contact as the father seeks or more assumes that there are no facts which would lead to the conclusion that the optimal level of contact for K would be less than is sought by the father. The determination of the optimal level is dependent on the findings resulting from the application of S. 60CC and the practicalities of the situation the parents and K are in. What can be said before applying s.60CC, is that because neither violence nor child abuse is a feature of the situation involving them, the presumption is that equally shared parental responsibility is to be applied. This does not mean that, after considering the matters required by s.60CC, it cannot be rebutted.
Because the parties live so far from one another, because of the father’s employment, because of K’s age and because he does not seek it, it is quite out of the question that K should, in the foreseeable future, spend equal time with the father. It would be neither practical nor in K’s best interests. The communication ability of the parents is still very poor; it is usually by text message which has the disadvantages of lack of spontaneity, being subjected to the vagaries of tactics and of depersonalising the subject of the communication. The parties’ ability to negotiate and resolve difficulties is not only poor, it will be difficult to improve because each is relatively self-centred, insensitive and authoritarian in nature. So far both have failed to show enough capacity to implement appropriate contact arrangements to make me confident of their ability to make such arrangements. The arrangements which each has attempted to make or has made have been somewhat unsatisfactory and far too often driven by tactical considerations and by personal needs and desires rather than an appreciation of K’s needs. However, because much of the conflict over arrangements after consent orders were made on 19 May 2006 has been the result of the poor drafting of the orders, I remain optimistic that, once easily understood orders are put into place which cover most eventualities, both will, to a very high degree, comply with them. Their characters are such that they are likely to feel bound by and comply with orders of the Court.
There is no doubt that the allegations each makes about the other, at their highest, would not result in a finding that K should not have a meaningful relationship with the father. There is no need to take any precaution, by way of orders, to protect K from physical harm, abuse, neglect or family violence. There may be a need to protect her from emotional harm. Orders can only go so far in attempting to achieve this.
There are only two likely sources of emotional harm to K. One is that she will not see enough of the father or see him often enough to develop a bond with him which will promote her welfare to the greatest extent the practicalities will allow. The father may not see her enough if he fails to make the effort to do so or the mother obstructs him from doing so. The other danger is that the mother will undermine K’s ability to develop a proper relationship with the father by undermining her image of him. She has already commenced to attempt to do this by the telephone calls to K in December 2007 which I have already detailed.
I shall deal specifically with the additional considerations required by s.60CC(3) in the order they appear in that subsection. The additional considerations are:
b)The child’s expressed views – K has not expressed any. If she has by her alleged upset involved with handovers or the telephone call, she is too young to give them any weight and they are the result, in all probability, of the mother’s adverse influence on her.
c)The nature of the child’s relationship with each parent and others of significance – K’s relationship with the mother is close, as one would expect in the circumstances. The mother says she is also close to her older sister. I am dubious about the degree the mother asserts because of K’s age and the lack of frequency of contact between K and H. H only sees K in school holidays for about half of each holiday. I think it is in K’s best interests to develop a close bond with H, but not at the expense of the bond with the father. K has no relationship with the paternal grandparents. It will be in her best interests if she develops the usual type of relationship children have with loving grandparents, which the father’s parents probably are. She probably already has such a relationship with the maternal grandparents. The mother relied on them to supervise contact between her and the father.
Any order for contact should provide time in school holidays which will allow K to be with H so their relationship can develop but not so much time that the relationship between K and the father will not be able to develop to the optimum extent desirable in the circumstances. As I do not know the precise contact arrangements the mother has for H, I can only allow for sufficient time in a general way.
It must be said that the father has not made as much effort as he should to optimise his relationship with K. It has only developed beyond estrangement to a modest degree. He only seems to be prepared to do anything to the extent it suits him. He could have made more effort to see K earlier and more often than he has. He could have arranged for much earlier paternity testing to facilitate this. The inclusion of the possibility of a move to northern New South Wales and an inference from a document that he has contemplated a move to Cairns indicate a selfish lack of full commitment to K’s emotional needs. Full commitment would be shown by a move to Townsville where he could see K more frequently. In saying this, I am not suggesting he should dedicate his life to K, but he could have done and should be planning to do more.
d)The willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent – There is no evidence to suggest the father has any deficits in his willingness in those respects. His ability is untested but, given his willingness, he would probably have some ability to facilitate and encourage the continuing close relationship between K and the mother, despite my assessment of him as somewhat lacking in interpersonal skills. The mother is resistant to allowing sufficient contact between K and the father to allow a close relationship to grow. She is actively opposing contact, attempting to minimise it and attempting to undermine it. Her resistance indicates a lack of ability to encourage a close relationship between K and the father. She too lacks interpersonal skills.
e)The likely effect of change in the child’s circumstances including of separation from significant family members – The father wants to be able to leave Townsville with K after she reaches three years. He also asks for block contact with her for four weeks at Christmas and for blocks of up to two weeks, as he chooses, until she reaches school age. On Father’s Day and on K’s birthday, he asks for about two days and at Easter three days until K reaches five years old. He claims contact on his birthday, but that would be included in the Christmas contact period. It is quite clear to me that, for a young child who is likely to see her father infrequently and then usually for two or three days at a time, blocks of two or four weeks are much too long for her to be away from her principal attachment; her mother. It would be likely to destabilise her and harm her emotionally. The regime which will best protect her from this risk is a more gradual introduction to lengthy blocks of time with the father.
Once K reaches school age or turns five years old the husband asks for the first two weeks of each school holiday period including Christmas and four days at Easter, which would be during the first part of the Easter school holidays. From 2010, when she will be six years old, he asks that the Christmas holiday contact be extended to four weeks from around Christmas.
Overall, the regime he wishes K to graduate to which involves two weeks during all school holidays except Christmas would mean that in these holidays K would spend nearly the whole of them with the father and have little or no time with her mother, sister or maternal grandparents. Only at Christmas, could she have more holiday time with the mother, H and her side of the family. This would not in my opinion allow K to have substantial and significant time with the mother and H and the rest of her family, even during the Christmas school holidays. In the Christmas holidays, the father would still have her for more than half the time. The Queensland Christmas holiday period is for about seven weeks or a little less. K will not be given much time to have a holiday away with the mother and, maybe, other family members including H and also to spend time at home with local and school friends. In the circumstances, I would regard the mother’s time with K at Christmas under this regime as not being enough to give her overall substantial and significant time with the mother, H and the mother’s parents.
f)Practical difficulties with and the expense of contact – The father is not in a straitened financial situation but he is not on a high income. I do not know much of the mother’s situation, but it is likely to be no better than that of the father. Her income is likely to be less than his. I do not know the assets of either. The cost of transport to Townsville and return is significant as is the cost for the father of staying in Townsville. If he has to travel by air with K, the cost will be greater. When K can travel alone the cost will not be such a great burden. The father will lose income under the regime he seeks while he is in the Defence Force. To comply with the regime, he will have to take unpaid leave. I accept that it would be difficult to afford more than the number of visits each year he plans so long as he remains in the Defence Force. When he leaves, his income may be less. Nevertheless, because I do not know what, if any, assets the parties have, I cannot find, on balance, that there is any financial difficulty for either in arranging more than this number of visits. Of course, I also bear in mind that the father is considering leaving the Defence Force and moving. If he does so, but does not move to a place which makes seeing K more often than he plans much easier and more affordable, it is a sign of lack of sufficient commitment to contact with her.
g)The parents’ and others’ capacities to provide for the child’s needs, including emotional and intellectual needs – There is no suggestion that the parties or their parents cannot provide for K’s intellectual and practical needs. I am of the view that neither party is able to provide well for her emotional needs because both parties lack skill and aptitude in this area. Both have demonstrated this deficiency; the father by his lack of commitment to frequent and regular and therefore sufficient contact and his demand for block contact which is too long for K to cope with while she is very young; the mother by her commitment to obstructing, reducing and undermining K’s contact with the father. I do not expect the father to be able to improve much in his deficits, whereas I expect the mother to become reconciled to more contact than she would like and to eventually realise that to undermine contact will harm K in the long term.
h)The child’s maturity, sex, lifestyle and background etc – Here, only that K is young and has not seen enough of the father, both in amount and frequency, are of relevance. I have referred elsewhere to all matters touching these aspects. As I have said, the father’s current lifestyle associated with his job does not, now that he will no longer be deployed, interfere with his ability to parent K once she is old enough to have contact with the father outside Townsville. The parties plan to accompany K on air trips until she is old enough to travel alone for the purpose of contact. I do not expect them to agree on the time for this.
i)Aboriginality – There is no suggestion that K has any such heritage.
i)Parental responsibility and the parents’ attitude to the child – Both parties seem to me to see K in terms of their own rights rather than in terms of her rights and needs. This is largely a manifestation of the deficits in each of insight into others and a lack of empathy and ability to engage in interpersonal relations. I have already referred to matters which have illustrated this situation. Nevertheless, I regard each party as intending to be responsible and, so far as they can understand what is needed for responsible parenting, as having good intentions. I have reached this conclusion about the mother because I do not think she realises it is contrary to K’s welfare to obstruct K’s relationship with the father. Her thinking is clouded by her view of the father which is based on his original refusal to accept her word about his paternity, his resultant initial failure to take financial responsibility for K and his part in her birth and his failure to put everything else aside for K’s sake, as she had done. I think both parents have the capacity to behave more responsibly as their understanding is increased. There has been less opportunity than usual for each to behave in an irresponsible way and, as a result, there have been few unseemly incidents involving K, but I am satisfied that once orders are made they are likely to be complied with to a high degree.
k)&k)Family violence and family violence orders – There have been no such orders and only one of the incidents which have been the subject of evidence has involved any actions which could be regarded as family violence. This was, relatively, at a very low level. I do not expect any further unseemly incidents between the parties.
l)Preferability of orders which are the least likely to lead to further children’s proceedings – This is nearly always preferable. It is preferable here. I have endeavoured to make such orders.
m)Other relevant matters – I have mentioned any matters which alone or in any combination could have a bearing on the outcome of these proceedings and are, therefore, truly relevant.
In my assessment the major matters to be weighed in making orders which will best achieve the intentions of the Family Law Act and best further K’s welfare are her age, her attachment to the mother, her need to continue to develop her relationship with her sister and paternal grandparents, the practical realities of the father’s situation, the fact that K will not, while she is still very young, see her father frequently enough to be able to spend lengthy periods with him and separated from her mother and the fact that there are no other reasons why orders should not be made which are designed to optimise her relationship with the father. Her time with the father will have to be gradually increased.
I do not regard K as old enough to spend overnight with the father without fretting for her mother, as I accept she does, even if the mother has exaggerated the degree, as I think she has, and is herself responsible for most of K’s separation anxiety, as I think she is both deliberately and, to a degree, unconsciously. K is old enough to continue to spend short periods with the father without being unsettled until she turns five years. The mother’s resentment of the father is likely to settle and her anxiety over contact is likely to diminish in the period until K reaches five years. As the father can visit Townsville six times each year and remain for about four days, it is appropriate for K to see him from 10.00am to 5.00pm on each day. I think Wednesday to Saturday inclusive is appropriate because that will allow for weekday and weekend activities.
Once K reaches five years she should be ready to spend overnight with the father without becoming too unsettled provided there is not too much overnight contact. I think that, for one year, every six weeks from 10.00am Wednesday to 5.00pm the next day and from 10.00am Friday until 5.00pm on Saturday in each instance, is appropriate. This will involve the father collecting her from school, taking her to school and having time with her on the weekend and school holiday days and, so far as time permits, will also allow him to take K outside Townsville.
I shall not restrict the father’s contact time to Townsville in any event, although I am conscious that for practical reasons they will be unable to go far and that travel outside Townsville is unlikely to occur often until K has longer block periods with the father.
Once K turns six years old she should be ready to spend from Wednesday morning to Saturday evening in one block every six weeks during school term with the father. She should also be equally ready to spend slightly longer blocks with him during the three shorter school holiday periods; that is, a week or a little less. By the first Christmas school break she should also be ready to spend half of it with the father. To alternate between the first and second halves is the best way, in the circumstances, to accommodate the need she has to spend Christmas with each of her parents.
While K is young and subsequently during school term, the father will have to travel to Townsville to see K. During these visits the father should be responsible for collecting K from the mother’s home and returning her at the end of contact. This will involve the father meeting the cost of his transport to and from Townsville. If this causes him undue hardship, he can seek a departure from his child support obligations, although to do so is bound to stir animosity in the mother. At least fairness will determine where the burden of transport costs lies.
I regard nine years of age as that when children who are already familiar with aircraft transport can travel alone by air. It is when airlines permit this. Until then, for school vacation contact, the mother should deliver K to the father at Brisbane airport. This will allow the father to spend time with K outside Townsville, presumably at holiday destinations on some occasions and at others in his or his parents’ home. The mother and father should be free to choose the type of transport for K and themselves to go to and from Brisbane. Each should meet their own fares and other travel expenses as well as those for K while she is with them. Each, or a person chosen by the parent who has the responsibility for that part of any trip, will have to accompany K until she turns nine.
Once K turns nine years old, for contact during holiday periods, the mother will have to send K to Canberra airport or any airport closer to Townsville which the father nominates and the father will have to return K to Townsville airport, but they will be able to choose whether or not and by whom K will be accompanied. The father should pay five sixths of the cost of K’s airfares in both directions, but each parent will have to pay their own fares or those of any accompanying adult. If this is unfair to either party, that party will be able to seek a fairer division of child support by seeking a departure from the calculated administrative assessment.
At all times, including when contact is restricted to day only or one overnight in Townsville, the father’s parents should not be restricted by the mother from seeing K for as long as the father wishes.
I have not made any specific orders for birthdays, Father’s Day or Mother’s Day. The parties, if they wish to depart from the vicissitudes of the calendar for these, will have to co-operate. Both will gain from co-operation. The lessons learnt will enable better co-operation which will further K’s best interests more than the setting of fixed regimes for these types of contact will.
The parties should also be able to agree on telephone contact. If they cannot, each parent can speak to K when she is with the other parent for not more than 10 minutes on Monday and Friday evenings. To permit more telephone contact will be too disruptive for K.
The father should, however, have unlimited contact with K by email, letters, cards and the like and should be able to send her things such as gifts or clothing as he sees fit. The mother should not interfere in any way with this type of contact and should be required to advise the father that each thing he has sent to K has been given to her promptly and undisturbed.
The father should be given all the information parents usually need to care for a child. He should always know the details of her medical condition and treatment and the like and of her educational and behavioural progress. He should be able to attend school information, cultural and sporting events, whether or not the mother is there. So should his parents. Both should always know where K is living or holidaying and have a contact telephone number.
The orders which were made on 21 March 2007 reflect the above.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen
Associate:
Date: 5 June 2009
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