B and B
[2002] FMCAfam 267
•5 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2002] FMCAfam 267 |
| FAMILY LAW – Contact – issues of shared care arrangements – best interests of the children – conduct of the parents – relationship of the parents – issues of violence – section 68F factors. Family Law Act 1975, ss.65E, 68F H and W (1995) FLC 92-598 |
| Applicant: | S B B |
| Respondent: | P K B |
| File No: | ZB7524 of 2001 |
| Delivered on: | 5 July 2002 |
| Delivered at: | Brisbane |
| Hearing Date: | 4 & 5 July 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Dr Sayer |
| Solicitors for the Applicant: | Hamilton Quinlan Fenwick, Level 1 Showcase on the Beach Coolangatta QLD 4225 |
| Solicitors for the Respondent: | In person |
ORDERS
The children P J B born 28 November 1989, L L B born 11 March 1993 and K J B born 22 July 1997 are to reside with the Applicant mother.
The Respondent father is to have contact with the said children as follows:
(i)On each alternate weekend during school term time, from 9 am on the Saturday to 5 pm on the Sunday, provided that if the Monday following a contact weekend is a public holiday, then contact will conclude at 5 pm on the Monday, commencing on Saturday, 13 July 2002.
(ii)On the father's birthday and each of the children's birthdays, between the hours of 12 noon and 6 pm if such day falls on a weekend, or for a period of not less than two hours if such day falls on a weekday.
(iii)Between the hours of 9 am and 5 pm on Father's Day in each year.
(iv)From 12 noon on Christmas Day to 6 pm on Boxing Day in the year 2002, and each alternate year thereafter.
(v)By telephone for a period of not less than 10 minutes each Tuesday and Thursday, before the hour of 7 pm.
(vi)For the second half of all mid-year school holiday periods in 2002, and each alternate year thereafter, and for the first half of such school holidays in 2003, and each alternate year thereafter.
(vii)For a period of three weeks in January 2003 and each alternate year thereafter.
(viii)For the first half of the Christmas/January school holidays, commencing in December 2004, and each alternate year thereafter.
(ix)For half of each Easter holiday period where such holiday does not fall in the school holiday period.
(x)At all such other times as the parties shall agree.
The father is not to exercise contact with the said children on Mother's Day in any year, and if such day falls on a contact weekend, then contact will conclude at 5 pm on the Saturday before Mother's Day, to make that clear.
The father is to collect the said children from the mother's residence at the commencement of each contact period, and return the children to the mother at the conclusion of each contact period.
The property Application will be removed from the list pending decision.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 7524 of 2001
| S B B |
Applicant
And
| P K B |
Respondent
REASONS FOR JUDGMENT
I look at the Applications before the Court today. The mother seeks an Order whereby the children reside with her, and have defined contact with their father. Basically, she is seeking relatively standard Contact Orders – alternate weekends, half school holidays, birthdays, Father's Day, other special occasions, some telephone contact etcetera.
The father, however, seeks a shared care arrangement. His suggestion is that the children should reside with him on Mondays, Tuesdays and Wednesday nights, that they would go to their mother on Thursday, and spend Thursday, Friday and the weekend with her, and go to their father on the Monday night. A Family Report has been prepared, and neither party considered it necessary or appropriate to cross-examine the Welfare Officer who prepared that Report.
There are three children who are concerned: P J B who was born on
28 November 1989, L L B born 11 March 1993 and K J B born 22 July 1997. The children have lived, first of all, with their parents when their parents were together, and then since separation, and I accept the fact that there have been more than one separation, but since final separation have lived with their mother. During intermediate separations they have resided with their mother. Indeed, K was conceived, apparently, at a time when the parties were apart, but considering reconciliation.
The father currently resides in the former matrimonial home in Tumbulgum, New South Wales, the mother is in rented accommodation in Cudgen. P goes to high school, just, the two younger children attend primary school. K has only recently started school, he perhaps went a little bit earlier than his mother thought appropriate, but it is quite clear that he is a very intelligent child, and has taken to school like the proverbial duck takes to water. The Welfare Officer who prepared the Family Report commented on his obvious intelligence, and also on his talkativeness.
What the mother says, is that the children should basically reside with her, as she has always been the primary care-giver, and that they should have regular, frequent contact with their father. The mother says that the relationship between her and the children's father is not good, and indeed has not been good for some period of time. She has accused him in the past of incidents of domestic violence, leading to Applications for Apprehended Violence Orders and, indeed, the interim Order being made at one stage, and indeed criminal proceedings in the local Court. She is of the view that she and the father cannot communicate, but notwithstanding that, she is of the view that the father has a good relationship with the children. Indeed, she described him as a doting father, of the two girls in particular. If there is a criticism perhaps, it is that she perceives him as showing some favouritism towards the middle child, L and perhaps not exercising sufficient control over the little boy, K. The mother says she treats the children equally, at an age-appropriate level.
The father says, however, that there is a lot to be said for a shared parenting arrangement. He says it would give the children greater stability. He says that it would be good for the children to spend Monday, Tuesday, Wednesday nights with him, he can organise them off to school, that is at a time when his employment allows him to spend quality time with the children. He has qualifications as a signwriter, although it is fair to say that that has not been a particularly busy business in recent years. He is better known, and indeed makes a better living as a singer and a musician. The mother refers, in some admiration, to his extremely good singing voice, and indeed it appears that the child P has inherited at least some of her father's musical talent. As a result of being in the music business, which is part of the entertainment business, not surprisingly the father's main time of business activity is on the weekend, and the latter half of the week. The amount of engagements he has on Monday, Tuesday and Wednesday nights are few and far between. Clearly, indeed this is referred to in the Family Report, he gets most of his work on Thursday, Friday, Saturday nights. He also gets some work during the school holidays, he gets work on Sundays during the day.
What are the matters that the Court must take into account? First of all, the Court must take into account that the best interests of the children is the paramount consideration. This is set out in s.65E of the Family Law Act. How does the Court determine what is in the child's best interests? There is a whole list of matters that a Court must consider, which is set out in s.68F subsection (2). Subsection (1) which people never refer to, just prescribes that the Court must consider the matters set out in subsection (2). Not all of them will be relevant in every case, but nevertheless the Court must consider them to see whether they are relevant or not, and indeed that is what the Court has done.
Section 68F(2)(a) says that the Court must consider any wishes expressed by the child, any factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight that it should give to the child's wishes. There is ample authority from the Full Court of the Family Court, such cases as H and W, also reported as Harris and Woollard (1995) FLC 92-598, and the matter of R and R: Children's Wishes (2000) FLC 93-000 about the weight that the Court must give to the wishes of children.
Not surprisingly, the more mature a child, the more weight a Court will usually give to the child’s wishes. Children of very young and tender years are ones where the child's wishes cannot be given much, if any weight. Indeed, K, being of the age that he is, was not interviewed and asked his wishes by the counsellor who prepared the Report, which I considered to be appropriate and proper. The situation is, however, that the Court needs to have independent views of the children's wishes.
The mother says all three children want to live with her, and have contact time with their father. Of course the father would say:
"Well, she would say that, wouldn't she?"
I am of the view that in any event, whatever wishes K expresses, he is just too young for the Court to take thus into account. The father says, that the children have expressed a wish that they spend, in effect, half the time with him. The Report writer does not agree. He, in fact, refers in the Report to the fact that P and L, bearing in mind P is now of high school age, both express a view that they prefer the present arrangements whereby they live with their mother, and have regular contact with their father. Indeed the Report writer goes further as far as P is concerned, and describes her as still being angry with her father. In par 62 he says:
"P talked about the abuse she witnessed her father perpetrate against the mother, and she remains distressed and affected by this. It is likely that Mr B would experience difficulty in managing P, as she is angry with him, and perceives him as demonstrating favouritism to L."
The father says that the children, or at least the two girls, have said one thing, but really would prefer to live with him. I cannot see any ground for concluding that the children would say something, but mean quite the reverse.
Another matter that needs to be considered is the nature of the relationship of the child with each of the child's parents. It is clear that with the exception, perhaps of P's anger and distress in respect of the father, that the children otherwise have a good relationship with him. The mother reports P as being embarrassed at having to share a room with the other two children, and it may well be that as she is reaching the age that she is, and growing into a woman, that there are reasons why her privacy needs to be considered, which may not have been so appropriate a couple of years ago. Nevertheless there is no doubt that each parent loves the child very much, and in fact the children report enjoyable times generally with their father.
Sub-par (c) refers to the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person with whom he or she has been living. Neither party is suggesting that the children should be separated. What the mother is suggesting, is the children should remain living with her, and that it would not be beneficial for them to live with their father for that length of time, as he wishes.
The Family Report writer would suggest that for P to live on a semi-permanent basis with her father would not be in her interests, due to some negative feelings towards him, and he suggests that the father would have some difficulty managing her. The age of K suggests that he would be better remaining to live with the mother. The father would need to demonstrate, in my view, that a change in the present arrangements would bring about some improvement in the welfare of the children for this change to be contemplated, and indeed it is difficult to see one. There is no practical difficulty and expense of the child having contact with the parent – Cudgen and Tumbulgum are not that far apart. The schools to which they go are relatively close to each other.
The Court looks at the children's maturity, sex and background. K is very young, the children are two girls and a boy. P, as I said, is growing into a young woman, she is now at high school, and there is that issue that she would prefer the privacy of her own room when on contact.
It is significant that the Court must look at the need to protect the child from psychological or physical harm caused by, or may be caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being directly or indirectly exposed to abuse,
ill-treatment, violence or other behaviour that is directed towards, or may affect another person. Again, P has expressed negative views about abuse which she sees as having been directed at her mother, although there is no evidence that that has been directed at her. Nevertheless, it is a matter that is of some concern, and indeed in
par (i) the Court must look at any family violence involving the child, or a member of the child's family.
In par (j) the Court must look at any Family Violence Order, like an Apprehended Violence Order, that applies to the child or a member of the child's family. There are no Orders in force at the moment, although there has certainly been at least one interim Order for a period of time, but the Application was dismissed on a final basis for want of prosecution.
The mother was extensively cross-examined for a period in excess of three hours on her Affidavit, and indeed she was taken through virtually every paragraph of that Affidavit with only a few exceptions. She maintained her view of the allegations of abuse. Despite cross-examination from the father, she maintained her view that the level of communication between them is not good. Dr Sayers for the mother has put that if there is not communication, there cannot be shared care, which explains why there are so few reported shared care cases, because you can’t impose shared care. The father perhaps appeals to a higher motive, that with the appropriate Orders, the parties should increase their level of flexibility in communication. I am of the view that that is a worthy aim, but it may well be beyond the power of a Court to enforce. There is no suggestion that the mother wishes to deny contact with the children, and indeed it seems that there have been other examples of contact taking place which have not been provided for by the Orders.
I am of the view that these proceedings caused some difficulty to the father, or these arrangements caused difficulty to the father, because his chosen field of endeavour involves work in the latter half of the week, and on the weekends. Indeed, it would be difficult for him to make himself too available on a Friday night with the children, in that Friday night would be a big night for him as far as obtaining work is concerned, and the reality is the father has commitments and must work.
I have considered matters before the Court. I am of the view that the best interests of the children are served by their remaining residing with their mother, and that there should be defined contact with their father. That contact should take into account the fact that the children need stability during the week, and that their father needs to work on Friday nights and weekends. There are also special occasions which are precious and important to parents and children alike.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 29 August 2002
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