B and K - [2001] FMCAfam 152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & K

[2001] FMCA fam152

FAMILY LAW – Children – Child starting school – father applies to extend mid week contact – Change in circumstances – No changes ordered until child has settled into school.

Applicant:

G J B

Respondent:

J K

File No:

ZP1709 of 2001

Delivered on:

29 August 2001

Delivered at:

Parramatta

Hearing Date:

27 August 2001

Judgment of:

Ryan FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Kenny

Solicitors for the Respondent:

Harman & Co, Suite 2F, 458 High Street, Penrith. DX 8052 Penrith

ORDERS

That in addition to the contact ordered pursuant to Orders dated
16 November 1998 the father have contact to the child C G B born
9 March 1997 as follows:
(a)From after school until 6.00PM each Thursday during first term of school 2002.
(b)From after school until 6.00PM on each Thursday following a contact weekend during the second school term of 2002.
(c)Commencing term three 2002, weekend contact is extended until the commencement of school on Monday morning.
That each of the parties shall forthwith contact the coordinator of Unifam Counselling Service and attend such intake interviews as may be necessary to enable an assessment to be undertaken by that service of the counselling needs of the parties to address their ongoing conflict and communication with each other and, in particular, to assess whether the parties are appropriate to attend and participate in a high conflict post separation parenting program AND if so assessed that each of the parties shall then attend at such time/times and at such place/places as may be arranged and advised to them by the Director of such counselling service and until they have completed such program.
That all outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP1709 of 2001

G J B

Applicant

And

J K

Respondent

REASONS FOR JUDGMENT (Ex Tempore)

The proceedings

These proceedings have comprised competing applications for parenting orders most particularly orders relating to contact with the parties only child, C, born 9 March 1997. C is four and a half years old.

The applications

The proceedings were initiated by the father’s application filed in the Family Court on 9 March 2001. The father sought to increase the contact exercised by him once C started school, C is due to start school at the commencement of 2002. At present the contact arrangements provide for contact each Thursday afternoon. Next year the father proposed that his contact would be extended so that it would occur one night each week in addition to the ordered weekend contact.
The mother filed her response on 11 May 2001. She subsequently filed an amended response on 22 June 2001. For her part the mother opposed the orders sought by the father. She sought an order that the parties attend counselling and an order that restrained the father from bringing further proceedings pursuant to 118 of the Family Law Act. At the conclusion of the proceedings the court was asked to enter an order by consent restraining both parties from starting further proceedings for a period of two years. That order will be made.

The evidence

The applicant father relied on the following evidence:
·His affidavit sworn 18 June 2001 and his oral testimony.
·The affidavit of R. O. sworn 18 June 2001 and his oral testimony.
·The affidavit of L. C. sworn 18 June 2001 and her oral testimony.
·The affidavit of P. M. sworn 18 June 2001 and his oral testimony
·The affidavit of P. M. sworn 18 June 2001. This witness was not cross-examined and I accept his evidence.
·The affidavit of D. B. sworn 18 June 2001 and her oral testimony.
The respondent mother relied on the following evidence:
·Her affidavit sworn 21 June 2001 and her oral testimony.
·The affidavit of J. B. sworn 21 June 2001 and his oral testimony.
·The affidavit of L. K. sworn 21 June 2001 and her oral testimony.
·The affidavit of L. P. sworn 21 June 2001 and her oral testimony.
·The affidavit of K. D. sworn 21 June 2001 and her oral testimony.
A family report was ordered which report was prepared by Norman Goodsell. It became exhibit A in the proceedings. The report was dated 2 July 2001. In essence, the counsellor recommended that there be no major changes made to C’s routines. This is because C is due to start school next year, a major change in itself and also because of his age.
Thus, the counsellor did not recommend an increase in mid-week contact nor did he recommend its cessation. The thrust of his recommendations were that any changes made must take into account C’s need to have the opportunity to settle into school and to maximise the likelihood of his transition to school being a successful one. He opined C needed about six months at school before any changes were implemented.

Short history

The father was born on 10 October 1966 and is 34 years old. The mother was born on 15 October 1970 and she is 30 years old. The parties were married on 13 January 1996 and C was born on 9 March 1997. The parties separated on 19 June 1997 when C was three months old. Consent orders were first entered on 16 November 1998, they were further amended and orders made on 7 October 1999. The parties were divorced on 28 May 1999.

The issues

The relevant issues are these.
·Has there been a change of circumstances sufficient to justify a further application?
·The impact on the child of making or refusing to make the orders sought.
·The capacity of the parties to co-operate in the joint parenting of C.
·Should an order be made pursuant to section 118 order to restrain the father from commencing further proceedings for a period of two years? As I have indicated, that application was compromised at the end of the proceedings.

Relevant events

The chronology of relevant events then as I see them is as follows. I will not in these reasons make findings of fact that relate to all of the matters of controversy that arose during the course of the evidence. Much of the evidence addressed the mother’s application pursuant to section 118 of the Family Law Act. Because at the end of the hearing an order was made by consent, it is unnecessary and contrary to the interests of these parties to explore and exhaustively make unnecessary findings of fact.
As I have already found, C was three months old at the date of separation. In her affidavit the mother has, helpfully and with great effort, outlined the history of contact following separation. I accept her evidence in relation to the frequency and the duration of contact. In summary the history of contact is this. Immediately after separation the parties established an arrangement whereby contact occurred for two to three hours twice a week at a local park or some other neutral venue. Because during periods of contact the father continually raised matters that concerned the failure of the parties marriage in a way that the mother found unendurable she stopped attending contact. She was, at the time, attempting to breastfeed their son and she was having difficulty feeding C because of the stress that she was under following the break-up of her marriage. Her decision to stop attending contact in those circumstances was undoubtedly a sensible one.
She took a period of some four weeks to attend to her own emotional needs during which time the father was unable to exercise contact to C. He is very critical of her for that lost time, a criticism that is unreasonable. It was undoubtedly in C’s interests that the person who was his prime caregiver attend to her own emotional needs, albeit for a short time. If the consequence of that was a gap of some weeks in contact for the father he ought to have been able to, if not then, at least now, put that break into a proper perspective and not continue to criticise her for it.
The next major change is because of that gap the father filed an application for parenting orders on 19 February 1998. Orders were made by consent on 16 November 1998.
On 18 December 1998 only days before the orders provided that the father would commence overnight contact to C the mother and child were involved in a very serious car accident. C was not physically injured. The mother was very seriously injured. She was for a period of four to five days in intensive care lapsing in and out of consciousness. She was fortunate to escape with her life.
There is a dispute between the parties, which ought to now be put to rest by them, about how it is that C came to be in the father’s care. The father criticises the mother and her family for taking some 36 hours to advise him that his separated wife and child had been in a serious car accident. Context is important in all things in life. The most relevant context here is that the mother was critically injured and in intensive care. Understandably the focus was on her fight for life. C was not injured, it was proper and reasonable that the focus of the family was on the mother and getting her and them through those immediate critical hours. That they did not call the father for some 36 hours given that his son was not injured ought not to not still to be the subject of criticism by him. It is time that he put their failure to contact him in a proper perspective and recognise that their focus was the correct one. Had C been injured himself my findings would have been different. He wasn't and the father should give up his self-absorbed grievance.
Thereafter the father took C into his care and C then remained with him for 40 days. This coincided with the mother’s period in hospital and a few days after she was discharged. The father sensitively, in my view, ensured that C was able to see his mother every day, something that no doubt mattered enormously to C and mattered enormously to the mother.
This period of time was a time of great trauma to the mother, to the father and to C. The continues to influence the way in which they relate to each other and the way in which they relate to C. I am satisfied that the mother reflects and responds with great emotion to the fact that she nearly not only lost her life but she also lost her son for that period of time. She believes, and undoubtedly it is the case, that for him too this was a time of great anxiety and trauma. From the father’s point of view, someone he had loved and may still have affection for nearly lost her life. He took on the full time care of his son is and had to manage his son’s distress and separation from his prime care-giver. Of course, at the end of the period of time the father had to give C back to his mother, something that the father also feels very deeply and which is a cause of distress to him.
The mother was discharged from hospital and returned to live with her mother. C and the mother lived with the maternal grandmother until 26 January 2000.
There is no need to dwell on this but it is clear on the evidence that the maternal grandmother and the father do not have a good relationship. Their interaction during the course of cross-examination, even taking into account that it is an artificial environment, was one in which it was abundantly clear that they do not regard one another with warmth. The father was extremely critical of her seeing her as inter-meddling in his family’s life. She is obviously critical of him. It would be in C’s interests and undoubtedly in the parties' interests if that brooding disputation could be put behind them. That may or may not happen.
After C returned to the mother there was again disputation between the parties about the form of contact that C should enjoy with his father. The father for his part had great difficulty adjusting to the loss again of C on a daily basis. The mother too had her own adjustment to make. She proposed that the parties revert to the orders, which would have provided for C to have contact overnight once a month. They couldn’t agree and on 31 March 1999 the father made a further application to vary the parenting orders. Those orders were compromised and on 7 October 1999 further orders were made that addressed C’s contact with his father as well as a separate set of orders relating to overseas travel.
The contact orders have been implemented and proceeded uneventfully until the middle of 2000 when the mother proposed a short holiday to Queensland. For some reason even though the proposal did not involve changes to the father’s contact this was an issue that involved controversy. I do not understand why the proposal was simply not readily agreed to by him. That his consent was withheld is influential in the finding that these parties do have a highly conflicted parenting relationship. They will be ordered to attend future counselling in an attempt to address it.
Ultimately the trip did take place. The next matter that arose was discussions concerning C starting school. The discussions in many respects were premature but in any event the issue arose about Christmas 2000. When there wasn’t agreement the father retained lawyers and these proceedings were initiated. In furtherance of the issue concerning C’s attendance at school in May 2001 the mother made application to a number of schools, Our Lady of the Way Primary School, Emu Plains, Mary McKillop Primary School, South Penrith and Bethany College at Glenmore Park.
On 15 June the parents attended together at Bethany College for a parent interview. The schools selected and suggested by the mother are all private Catholic schools, that being the form of education the parties agree that C should receive. They are all schools in reasonable proximity to C’s home. The father had also taken C to an intake interview at St Michaels Primary School at Blacktown. This was a school that the father had been teaching at. It is unclear on the evidence why that attendance took place and it seems surprising given that C lives at East Blaxland. It is unclear whether the father intended that C would travel to Blacktown every day to go to school. If he did, such a decision is one that could only have been made with the co-operation and consent of the mother. That this took place provides a window into the father’s thinking in terms of the mother’s involvement in the decisions that have to be taken concerning C. Because I don’t know enough about how the interview at St Michaels in fact took place and why it took place, I am unable to make any clear findings about it. However, if it is the case that the father had C go through the intake interview at St Michael’s without the mother’s knowledge and consent shows a lack of understanding of her rights and responsibilities as the resident parent. It shows a lack of regard for the need for decisions such as this to be taken by the parties jointly.
The father then, in preparation for C possibly starting school, spoke to the mother about C being assessed by the principal at St Michael’s, R. O.. Mr O. gave evidence in these proceedings. The mother asked that the assessment not proceed. Nonetheless the father did so.
Mr O. recommended that C have speech therapy which recommendation has been acted upon by the parents. The father passed on the recommendation and the mother has arranged for C to attend the speech therapist. The father has not contributed to the cost of the speech therapy.
Otherwise, contact has proceeded in accordance with the orders and the only other matter of significance relates to C recently attending the dentist. He needed dental treatment whilst with the father. The father took C to the dentist after speaking to the mother during a period of contact. C managed fairly well. On the next visit to the dentist, he didn’t manage as well and the mother made contact with the father and asked for his assistance in getting C’s co-operation. This is a small vignette, which shows that when the parties do look at matters from C’s point of view and with his interests at the forefront of their thinking they can co-operate. Given that he is only four and a half years old there will be many, many issues that will arise in the next 13 years of his minority and he needs them to find a way to co-operate, as they have on this occasion, in the future. There will need to be considerable changes made if they are to achieve that.

The mothers current circumstances

The mother’s circumstances then are these. She has been working two days a week with H. She proposes to stop work and next year will not work during first term when C starts school. She plans to spend that time settling him into school and helping him through the adjustments that any child must make when they start their formal schooling. This is a step that is very much to her credit, something the father was readily able to acknowledge. She proposes to complete her teaching degree at the University of Western Sydney and so by the beginning of second term 2002 will start teaching. She hopes to be able to teach at the school that C is attending or otherwise obtain a teaching position in the local area. If necessary the teaching will be relief teaching. She enrolled C at Emu Heights Day Care in 1999 and he has been attending that pre-school for three or four days a week.
She has re-partnered and her partner, J. B., gave evidence in these proceedings. They do not live together. The relationship is an obviously solid one.

The fathers current circumstances

The father lives at the former matrimonial home at Blacktown. He is a qualified teacher and this year has taken a position with P. as a development officer. He is responsible for 160 schools and promotes Rugby League through the schools that he is responsible for. He plans to return to his profession as a teacher in the near future. He is part, as is the mother, of a large and supportive network of family and friends.

Relevant law

In all matters concerning parenting orders the best interests of the child are the paramount consideration. Although parenting orders are never final in the sense that the court or courts always retain jurisdiction a court will not readily re-open parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is known as the rule in Rice v Asplund (1979) FLC 90-725. In that case the Full Court of the Family Court was considering issues as to custody. That the rule also applies to access, now contact cases is abundantly clear and I make reference to the marriage of Newling v Mowle (1987) FLC 91-856 and the marriage of Zabaneh (1991) FLC 92-191.
The principle that underlies the rule is that it is, generally speaking, not in the interests of a child or children to have repeated applications concerning the child or their custody and access before the court. There must, in other words, be an end to litigation. It is thus a specific application of the paramountcy principle. It is a matter for the individual judicial officer to determine whether this threshold issue is addressed as a discrete hearing or within the context of a complete trial, Bennett v Bennett (1991) FLC 91-617.
In the circumstances of this matter I determine that the Rice v Asplund issue should be addressed as part of the complete hearing. Ultimately I was satisfied, as will be apparent, that the father had demonstrated a change in circumstances and that the court should consider the application made by him on its merits.
Contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.

Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.

Has there been a change in circumstances?

The first question that I will turn to is has there been a change in circumstances of the type required by the cases. I have answered this question in the affirmative. It has been two years since orders were made concerning C’s contact. Those orders provided that contact would occur and that it would occur frequently. It must have been anticipated by the parties that that structure of contact would work well and was in C’s best interests. As a consequence C has seen his father every week since.
The court counsellor recommended very clearly and emphatically that at the beginning of next year there should be no significant changes made to C’s care. Thus, he recommended that the existing arrangements for contact should continue at least during the first six months of next year. Consistent with that he recommended against the proposal made by the father and against the proposal made by the mother. Implementing the orders will result in the cessation of the mid-week contact as at the start of next year. There is a volume of evidence that indicates that this is contrary to C’s best interests. The evidence view tips the balance in favour of the change in circumstances having been demonstrated by the father having regard to the totality of the evidence. I am satisfied that I should therefore examine the applications by reference to the relevant section 68F(2) factors.

Determining the best interests of the child

The first matter to which I must consider is section 68F(2)(a), that is the child’s wishes. Ordinarily in a case involving a child who is four and a half years old this is not a subparagraph that would have consumed time neither in the proceedings nor in the judgment. However, it is a major plank of the father’s case that C wishes the orders to be made as proposed by him. His case is that as a four and a half year old C is capable of analysing matters that relate to his interests, of understanding the effect of starting school, understand the effect of a reduction in contact with his father. Understand and weigh up as a wise little boy the effect on him of the occurrence and withdrawal of contact. With respect to the father and those witnesses in his case who pressed upon the court that a four and a half year old is capable of forming mature wishes on matters that relate to his welfare I cannot accept this. It is inconsistent with this court’s daily experience. It is inconsistent with understanding the ordinary maturity of a four and half year old. The father seriously over-emphasises his son’s capacity for insight and misunderstands what C is saying when he asks for more time with his father and when he is reluctant at times to return to his mother.
C does clearly say to his father and to members of his father’s family that he wants to stay with his father and not return to his mother. I am not satisfied, in spite of the father’s evidence that he has great experience in dealing with children whose parents are separated, that he himself is able to dispassionately examine what is happening with his son. C’s expressions, in my view, are no more than an indication that the child is securely attached to his father. No more than he enjoys his time with his father. To then translate, as the father does, those expressions and attachment into a clearly articulated wish by the child to spend more time with his father and less time with his mother indicates to me that the father has some difficulty in intuitively understanding what is happening with his son. He needs much greater insight into what is truly happening for C. I find that C has no wishes in relation to contact that are maturely expressed and I give little weight to the child’s apparent expressions to his father that he have more contact with him.
The next matter to which I must turn is section 68F(2)(b), the nature of the child’s relationships with each of his parents and with any other relevant persons. The relevant people in these proceedings are the parents. The mother is C’s primary caregiver. He has lived with her since he was three months old and she has been primarily responsible for his care. I am satisfied that they have a deep and loving relationship. It is a relationship that is nurturing for C and provides his key sense of stability. It is important that the orders this court makes not undermine that relationship and its effectiveness.
The father has a loving and appropriate relationship with his son. It is a secure and deep relationship. It is one that has been built up in spite of the fact that the father has not lived with C since he was three months old. That the relationship has the depth and quality about it is significant in two respects. Firstly, it can only have been achieved because of the father’s commitment to his son, that he has been regular and reliable and has done his very best as a parent. The relationship could not have been successfully built and maintained without the mother’s commitment to it. With the best endeavours in the world and the greatest commitment in the world, the father alone could not have established this relationship. C lived with his mother and had she set her mind about it and been motivated, as sadly some people are, to undermine the relationship she could have done so. The fact that the relationship is as strong and loving as it is means that the mother has worked positively to ensure that C has the relationship with his father that the father desired. The father needs to acknowledge not only to himself but also at some time also to C’s mother her part in enabling his relationship with his son to be as rich as it is. I am satisfied that both of these parents love their son deeply, that he loves them deeply and that they both have a secure and quite wonderful relationship with him.
Subparagraph (c), the likely effects of any changes in the child’s circumstances. This goes to the heart of the proceedings. Next year in all probability C will start school. That is a significant step in the child’s life. It wasn’t clearly acknowledged by the father and I was left with a degree of unease that he underestimates the significance moving into school for a child. The father will need to be attuned to the changes that C is going to go through when he does start school.
The father’s proposal that coincidental with starting overnight mid-week contact should become overnight contact contributes to my sense of unease that the father does underestimate the magnitude of the changes that C will go through next year. He is keen and to be substantially and intimately involved in his son’s life. However, the application suggested that on this occasion he is not putting C’s interests at the forefront of his thinking. The application for overnight contact coincidental with starting school lends itself to a conclusion that it was an application, which was possessory of C. Not demonstrably a responsible exercise of parental decision-making.
The father took into account by the conclusion of the proceedings the thrust of the evidence given by Mr Goodsell. So by the conclusion of the proceedings, although not formally abandoning his application for overnight contact to commence immediately that C started school, he did indicate very strongly that he understood the thrust of Mr Goodsell’s evidence that major change should not take place. He indicated that he was willing to delay the introduction of overnight midweek contact until the commencement of the second semester. He was not adverse to the weekend contact being extended to include the Sunday night. That was very much a poor and third alternative for him but was an application that was made in the final analysis as a third alternative.
The mother emphasised in her affidavit evidence and in her oral testimony C’s need for stability. For a child to succeed in life stability is critical. Stability in relationships and in routines is in a child's best interests. Children need to know where they live and with whom. Unstable living arrangements and instability in key relationships is damaging to children not only in the short term but also in the long term. The mother’s case is that the court ensures that C has the best chance to make the adjustments that he must make when he starts school. This will be achieved by making sure that C’s arrangements are stable and secure. She over-emphasised in my view how stability is to be achieved.
The father’s proposals for midweek overnight contact to commence immediately would have seriously undermined C’s capacity to make the adjustment to school an easy one. The proposal is one that is destabilising and would have undermined C and also exacerbated the difficulties the mother would have had in making the transition a smooth one. Her decision to take time off during first term next year and be available to C is one that reflects very well on her understanding of her son and her commitment to him as a parent.
Underpinning much of the mother’s case is that she cannot cope with the tensions which exist between the parties. Because of that her capacity to maintain stability for C may be undermined. That the parties have a tense and problematic relationship was apparent throughout the course of the proceedings. The mother’s affidavit is replete with examples where the parties have been unable to communicate comfortably on matters that have been apparently innocuous but nonetheless appropriate for discussion. The father emphasised in hundreds of contact changeovers there has in recent times only been two occasions when there has been an incident between the parties. This was a simplistic approach to the nature of the relationship between the parties.
The mother’s evidence is that she finds dealing with the father extremely difficult. She was tearful in the witness box and I accept that she is often reduced to tears after she has finished speaking with him. It doesn’t need a public display of hostility for the relationship to be evaluated as highly conflicted. Tensions are apparent when parties don’t speak. It is not a complete measure of the nature of a relationship that there be open hostility. The subtle features that the mother describes and the inability of the parties to communicate, such that they minimise the time they are together at contact hand over and often don’t speak is a valuable measure of the quality of their relationship.
The parties do have a very tense relationship. That is something that the court must take into account in examining the proposals that the father makes to change the nature of contact. The primary proposal for midweek overnight contact, putting aside the issue that Mr Goodsell raised concerning the adjustments that C makes because he is starting school, must also take into account the capacity of the parents to actively co-operate in co-parenting of the child. On the father’s proposal he would have C for five out of 14 nights. It is an inadequate response to the tensions that exist between the parties to say that he would collect and return C from school, thus minimising contact between the parties. Sharing a child’s time five days as compared to eight days in any 14 day period requires, in my view, effective communication and effective co-operation between the parents. C would inevitably be caught between differing parenting styles and attitudes. Messages would be missed and the inability of the parties at the present time to adequately communicate in a comfortable way in matters relating to C’s interests is a significant barrier for the shared parenting arrangement that the father proposes. It simply in my view could not be in C’s interests to divide his time between two parents who at this time are so unable to communicate with each other.
The changes then, it is apparent, proposed by the father for the immediate introduction of overnight contact at the commencement of school next year are changes that I am satisfied are not in C’s best interests. Nor am I satisfied having regard particularly to Mr Goodsell’s evidence that withdrawing the Thursday contact when C starts school is in his interests. The withdrawal of contact from three times in each fortnight to one occasion in each fortnight is a significant change of the type that is contra-indicated in this particular case.
The final matter that is relevant in the proceedings is finality. This was an issue that was emphasised by Mr Kenny in his submissions. He spoke with force and logic about the need for finality in litigation. Litigation can take a terrible toll on families and on individuals. This case has been a very good example of the toll that can be taken. During the course of the proceedings the parties explored past unhappiness in a way that has brought those matters back to the forefront of their thinking. Matters that were best left in the past were trawled over during the course of the proceedings. The mother obviously in my view finds the litigation and the relentless flavour that it has enormously distressing.
I was troubled deeply by the father’s lack of insight into the effect of the application and the glib way he dealt with the prospect of further litigation. Far from it being an outcome that he considers to be undesirable and an exercise that is taken as a last resort showed that it is very much at the forefront of his thinking. It is a tool that he readily proposes to use if he cannot achieve what he wants in quick negotiation with the mother. The father has on this occasion been able to show that there was a proper basis for bringing the application. Ultimately though he must that the courts will look increasingly critically at the nature of the applications he brings if these relate to C. Fine tuning, and tinkering with the structure of contact arrangements will be met with another Rice v Asplund supra argument. On the next occasion the mother may well be successful. The father needs to look to a way to discuss matters concerning C’s welfare with the mother and on occasions if she does not agree with his proposal, accept that her decision. He cannot assume that he is always right.
The stress of the proceedings and the need for finality is a matter that has had particular weight in the decision that I have made. However, it is in C’s interests, for other reasons, that there should be a change to the existing orders.
The orders are final orders. They have been made after a defended hearing and they have been made with a view to addressing C’s interests in the long term. They are orders that will address C’s best interests for many years to come. There ought not, in my view, be any need to return to court for many years, well beyond the two years that are now embargoed as a consequence of the consent order made on Monday.
As I have indicated these findings will be taken out and will form part of the court’s record. The orders provide for a gradual re-adjustment of the structure for contact. Consistent with Mr Goodsell’s recommendation the father’s contact on Thursday afternoons will continue during first term 2002. This of course will give C and his father the opportunity to more intimately explore and enjoy his starting school. At the end of first term the next step in relation to the realignment of contact should take place. At that point the frequency of the Thursday afternoon contact will reduce. There will be only one period of Thursday afternoon contact in each fortnight.
The next major change will be at the commencement of third term, the beginning of the second semester. The Thursday afternoon contact at that point will cease altogether. The contact on the weekends will extend so that the amount of time that C spends with his father overall will not be reduced. Mr Goodsell’s evidence was to the effect that extending the weekend contact as proposed will not in any material way change the nature of C’s relationship with his father. His primary finding was that the relationship is a secure one. Provided there is a period where there is no change, and that was a six month period, to the frequency of contact that C’s relationship with his father, whether that contact continued or whether it was discontinued, wouldn’t change the relationship. I accept that that is so. However, changing the contact arrangements will give C and his father a greater opportunity to experience and enjoy each other’s time. They will simply have more life experiences to relish together. This does not change the quality of the relationship but it does maximise the opportunity for them to enjoy it.
I considered carefully whether the father should return C to school on the Monday morning once the overnight contact is extended to Sunday night. On balance I am satisfied that he should. Ms D., C’s preschool teacher was important in this regard. Her evidence is that she sees in C some adjustment difficulties or changes when he comes to preschool after the weekend with his father. Why this is so, however, is not clear on the evidence. Nor is it clear that the fact that it is so is an indicator that contra-indicates the extension of contact. It may be a reflection that C is quite attuned to the difficulties and tensions between his parents. He has said many things that suggest that this is so. I do not accept that in the mother’s environment critical remarks of the type that the father has heard C make about members of his family and him are made by the mother or members of her family. Equally I do not accept that the father and members of his family say hostile things to C about the mother and her family and friends. It is more likely that C is sensitised to the fact that his parents and their respective families do not get He doesn’t share their view but in a way that children do he says what he perceives may be pleasing.
It is important that these parents understand that this is so. This is a common experience for children whose parents are separated. If they believe and over-emphasise everything that C says and believe that it reflects what is being said in the other person’s home they are going to create even greater difficulties for the child moving between the two homes. They need to intelligently respond see his comments for what they are - a little boy simply trying to please people he loves dearly.
The orders are in C’s best interests. It will maximise his pleasure in his relationship with his father. His father is not relegated, as he fears to being a recreational parent.
I want to pause here and just reflect on the literature presented by the father. Mr Goodsell in my view placed Mr P.’s material in its proper context. It has little relevance to C and his family. The types of relationships that Mr P. was referring to were relationships where a father is actively alienated by the residence parent. That is not the case he. The father needs to ensure that he does not make it an article of faith that any difficulties in the future C arise because he doesn’t spend enough time with his father. The father must remember and ensure that he values dearly the quality of the relationship that he does have with C and the fact that the mother obviously nurtures that relationship.

So too the mother must acknowledge that her relationship is also nurtured by the father. There would be greater indicators of maladjustment in C’s relationship with her if this weren’t the case.
There are no other matters that arise pursuant to section 68F(2) to which I must have regard on the circumstances of this case. The orders will be as indicated at the beginning these reasons.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 12 November 2001