B and O
[2001] FMCAfam 125
•31 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
B & O [2001] FMCA fam 125
FAMILY LAW – Children – Contact – Teenager wanting to assert her independence – Significance of positive message contained in order for contact.
| Applicant: | W K B |
| Respondent: | I L O |
| File No: | ZP1129 of 2001 |
| Delivered on: | 31 July 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 31 July 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitors for the Applicant: | Ian Bullock & Partners, Solicitors, DX 8207 Parramatta |
| Respondent: | Mr O in person |
ORDERS
That Orders 3 and 4 dated 4 June 1997 are discharged.
That the Father have contact with the child E N O born 21 November 1988 as follows:
(a)From 8.00AM Saturday to 6.00PM Sunday each alternate weekend except during school holidays;
(b)Otherwise coinciding with Orders 5(c), 5(d), 5(e), 5(f) and 5(g) of these orders;
(c)At other times as agreed between the Father and the child.
That contact ordered in Order 2(a) is suspended from 8.00PM Saturday until 8.00AM Sunday on those occasions that E or the Mother tells the Father that she wishes to return home to the Mother.
That overnight school holiday contact ordered in Order 2(a) is suspended from 8.00PM until 8.00AM overnight on those occasions that E tells the Father that she wishes to return home to the Mother PROVIDED the Father and children are not holidaying away from home. If the Father wants to take the children away for holidays he is to discuss this with E no less than four weeks before the holidays and E is not required by these to go away with the Father for school holiday contact PROVIDED either she or the Mother tells him within one further week that she doesn’t wish to do so.
That the Father have contact with the child T D O born 4 July 1992 as follows:
(a)From 4.30PM Friday to 6.00PM Sunday each alternate weekend except during school holiday periods;
(b)From 5.00PM to 8.00PM each alternate Thursday immediately preceding the contact weekend pursuant to 5(a);
(c)For the second half of each school holiday period except the Christmas school holidays;
(d)For three weeks of each Christmas school holiday period commencing at 6.00PM on Christmas Eve each alternate year commencing 2001 and starting at 9.00AM on Boxing Day in each alternate year commencement 2002;
(e)From 9.00AM to 6.00PM each Father’s Day if it does not occur on a contact weekend pursuant to 5(a);
(f)For three hours on the child’s birthday;
(g)From 4.00AM to 9.00AM on ANZAC Day.
If Mother’s Day falls on a day when the Father is due to have contact with E then contact shall be suspended on that day.
If Mother’s Day falls on a weekend when the Father is due to have contact with T then contact shall end at 9.00AM on Mother’s Day.
That the Father’s contact pursuant to Orders 2(a) and 5(a) shall occur on the same weekends.
That the Father have telephone contact to the children between 6.30PM and 7.30PM each Monday and Wednesday evening other than during the school holidays.
That the Father collect the children from the Mother’s home at the start of each contact period and return the children to the same place at the end of each contact period EXCEPT if E is returned on Saturday evening the Mother is to collect the child from the Father's mothers home.
That the Father be restrained from consuming any alcohol during contact periods and in the twelve hours immediately preceding the start of each contact period.
That all outstanding applications are otherwise dismissed.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
ZP1129 of 2001
W K B
Applicant
And
I L
Respondent
REASONS FOR JUDGMENT (Ex Tempore)
The application
This is an application for parenting orders concerning the parties two children, E N O born on 21 November 1988 AND T D O born 4 July 1992. The proceedings were commenced in the Hornsby Local Court when W B filed an application on 21 August 2000. She filed an amended application in the Federal Magistrates Court on 29 May 2001.
In her case outline document the applicant has set out with finality the orders. They are as follows :
1.That Orders 3 and 4 made on 4 June 1997 be discharged.
2.That the father have contact with the child E N O born
21 November 1988 as follows:
(a)From 8.00am to 8.00pm Saturday and from 8.00am to 6.00pm Sunday each alternate weekend except during school holiday periods;
(b)During school holiday periods in accordance with the child’s wishes;
(c)At other times as agreed between the father and the child.
3.That the father have contact with the child T D O born 4 July 1992 as follows:
(a)From 4.30pm Friday to 6.00pm Sunday each alternate weekend except during school holiday periods;
(b)From 5.00pm to 8.00pm each alternate Thursday immediately preceding the contact weekend pursuant to (a);
(c)For the second half of each school holiday period except the Christmas school holidays;
(d)For three weeks of each Christmas school holiday period commencing at 6.00pm on Christmas Eve each alternate year commencing 2001 and starting at 9.00am on Boxing Day in each alternate year commencing 2002;
(e)From 9.00am to 6.00pm each Father’s Day if it does not occur on a contact weekend pursuant to (a);
(f)For three hours on the child’s birthday;
(g)From 4.00am to 9.00pm on ANZAC Day;
(h)If Mother’s Day falls on a day when the Father is due to have contact with E then contact shall be suspended on that day;
(i)If Mother’s Day falls on a weekend when the Father is due to have contact with T then contact shall end at 9.00am on Mother’s Day.
4.That the Father’s contact pursuant to Orders 2(a) and 3(a) shall occur on the same weekends.
5.That the Father collect the children from the Mother’s home at the start of each contact period and return the children to the same place at the end of each contact period.
6.That the Father be restrained from consuming any intoxicating substance during all contact periods and in the twelve hours immediately preceding the start of each contact period.
The respondent, I L O filed a response at Hornsby Local Court on
14 September 2000. It contains the orders sought by him. They are as follows:
1.That the Mother’s application filed on 24 August 2000 be dismissed.
2.That the Mother pay the Father’s costs of these proceedings.
The evidence
The applicant she relied on her affidavit sworn on 23rd and filed on
24 July 2001 together with her oral testimony. The respondent relied on his affidavit sworn 12 September 2000 and filed on 14 September and his oral testimony. In addition he relied on the affidavit of his brother-in-law, H A sworn 13 September filed 14 September 2000 together with his oral testimony.
A family report was prepared by court counsellor Bruce Hawthorne which report is dated 9 July 2001. That report became an exhibit in the proceedings. The court counsellor was subject to short cross-examination. I am satisfied that he has both accurately reported the events that transpired during the interviews and that his expression of opinion is one that is well-formed having regard to the events that transpired during counselling. It matches, for my part, my conclusions in a very material way. The report was not the subject of any significant challenge by either of the parties.
Background facts
The husband was born on 6 December 1963 and he is now 37 years old. At present he lives at Waitara in his mother’s home. He has until recently been in full-time employment as a service operator. He has recently become unemployed. He is likely to resume full-time employment in the near future. That accords with his history.
The mother was born on 16 May 1964 and she also is 37 years old. She lives in premises at Waitara with the two children. Both parties live within close distance to each other. Neither it would seem has re-partnered.
The parties were married on 28 March 1987. They have two children. They separated on 2 April 1997 when the mother and children left the matrimonial home. Since separation the children have lived with the mother. But for a period of approximately four to six weeks immediately following separation, the father has exercised regular contact to the children. Indeed one of the remarkable features of this matter has been the degree of co-operation that has existed between the parties in relation to their children subsequent to separation. The parties were able to reach agreement readily. On 4 June 1997 orders were made by consent before Registrar Gersbach in the Family Court which provided that the children would live with their mother and have contact with their father. The contact with their father was detailed. The orders also dealt with matrimonial property, a matter not of relevance in these proceedings.
There were, it would seem, two sets of apprehended violence orders obtained for the protection of the mother. The evidence is not clear as to when the first apprehended violence order was made but it is clear that on that occasion the police were called and the father was arrested. The second apprehended violence order was obtained at the time of separation. The proceedings were taken at Hornsby Court, as it would seem that immediately after separation the mother returned to live in Hornsby/Waitara and that was the court nearby to where she was then living. She agrees that there was an incident after separation at Waitara Public School. However her evidence is quite clear that the catalyst for the apprehended violence order at separation related not to the incident at Waitara Public School but to the events at home prior to separation. At that time the father was abusing alcohol and was frequently drunk.
It is common ground between these parties that after the consent orders were made in June 1997 the orders were implemented by the parties. Indeed the father was able to spend additional time with the children beyond the scope anticipated and provided for in the orders. This additional time has included the mother co-operating with the father spontaneously. On occasion he has made plans but given her no advance notice. He has attended her home on some occasions as frequently as three or four times per week without notice to see the children. She has accommodated this.
This spontaneity arises from the fact that the father and mother live in close proximity to each other. I accept that the father in the ordinary course of living his life in his local community passes the mother’s home with reasonable frequency. He sees it as completely appropriate that when driving past if the children are outside he should pull over and spend a short period of time with them before moving on. Neither the mother nor I offer any criticism for that. The father also drops by on a more planned, basis from his perspective, when he has been unable to get through on the phone to the children. He goes around to spend time either to clarify matters relating to schooling, for example, with them or otherwise just to spend time when he feels that he is missing them.
The mother has co-operated with this to a very significant degree and it is disappointing that the father was unable to recognise this as very positive support for his relationship with the children. I accept her evidence that at times she feels, and so do the children, that he has been disruptive. He has ignored her need for and there are in place contact orders which are liberal in their terms.
The arrangements between the parents continued against this structure of contact as expanded by the father spending time with the children until the early part of last year. Even on the father’s case by the beginning of last year E displayed reluctance for contact at contact changeover and during contact was reluctant to remain for the duration. E was 11 years old. The father responded with real sensitivity to E’s wishes in relation to contact and by practice the contact orders have been departed from. The manner in which they have been departed from has been a gradual process so that E most frequently does not go on contact on Friday nights. T does. She sometimes doesn’t go first thing on Saturday mornings, delaying the start of contact so she can do things with the mother and her friends. Since August 2000 she has rarely stayed overnight with the father on the weekends.
On 12 August 2000 there was an incident during contact that upset E. He frightened her that weekend. The father has minimised the effect on his daughter and has not given sufficient thought to the effect of what occurred on a girl at the beginning of her adolescence who experienced the breakdown of family in the context of alcohol abuse by her father.
The father’s evidence is that for the two years prior to separation he was consuming alcohol and he was consuming it to excess. He was not a social drinker to the extent that he pursued his use and abuse of alcohol away from the home. He was working very hard, married to a woman who was working very hard and had two children. He stayed at home and that is where he drank. His evidence is that he doubts that E would have heard the many arguments between her parents because they occurred most frequently when she was in bed. That flies in the face of common sense and ordinary experience.
On 12 August 2000 his mother was awoken after the children, including their cousin, had shut themselves in their bedroom. The father was trying to get them out of the bedroom. He perceives that it was a game, E’s description to her mother is that from her perspective it was anything but a game. She was clearly frightened of her father and what he may do if he got her and the other children out of the bedroom. He was drunk.
The father’s mother reacted sensitively in my view to her grand-daughter’s distress. She too was frightened and needed assistance from other members of the family. Thus it is that she contacted her son-in-law, H, who came to the house with great speed. His evidence is that when he arrived E and her grandmother were sitting on the sofa. It was almost midnight and they were clearly upset by the father’s behaviour. The father ought to be able to recognise that this was so. It shouldn’t need his daughter and mother to respond with demonstrable fear for him to accept that they were frightened that evening. That night was the catalyst in many respects for the proceedings that bring these parties to the court today. Shortly thereafter the mother filed her application at Hornsby Local Court. Interim orders made on 15 September, on 1 September and on 21 September 2001. On 21 September the proceedings were transferred to the Family Court and were subsequently transferred from the Family Court to this court.
Relevant law
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 or children 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 parenting arrangements that will promote the best interests of a particular child or children the court must consider the various matters set out in section 68F(2). Its subsections 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 children’s circumstances can be addressed and I refer in particular to B and B, Family Law Reform Act. Not all the matters referred to in section 68F(2) are relevant to these proceedings. I will in these reasons deal with those matters that are relevant and not those that don’t have any applicability to the decision I must make.
Determining the best interests of the children
The important factors as it seems to me are these: firstly, the children’s wishes in relation to contact and the weight to be attached to their wishes. Next, the nature of the children’s relationship with their parents and with each other. Next, the effect on any change in the children’s circumstances. Next, the effect on the children of making or not making the orders proposed by the mother. Next, the capacity of the father to attend to the children’s physical and emotional needs having regard in particular to the allegations of alcohol abuse made by the mother.
The first matter to which I will refer is the children’s wishes. This is indeed insofar as the application relates to E a factor of particular importance. Given her age, I accept the submission made by Mr Bullock that her wishes if I am satisfied that she is a child with age appropriate maturity and reasonably age appropriate cognitive skills must be given material weight. R and R: Children’s Wishes 2001 FLC 93-000.
As I have already found neither party challenged in a material way the report prepared by court counsellor Hawthorne. He reports that E presented to him as an articulate friendly child in her first year of high school[1]. She was able to discuss with the counsellor her wish not to stay overnight with her father. She made it clear to the court counsellor, as indeed she did later on to her father, that her preference is to be at home at her mother’s place at night rather than spending time with her brother and her father. She outlined to the counsellor her reasons for that. She certainly identified a deep connection with her mother and also recounted the incident of
12 August without dramatics. This suggests that this child has been able to put into an appropriate perspective the events of that night.
[1] Page 9 Family Report
That she didn’t indulge in dramatics reinforces in my view the clarity of her thinking and the significance of the issue for her. It does not mean, as Mr O implied during his submissions, that this was an event that does not continue to cause her some concern. Quite clearly, having regard to the counsellor’s evidence it does. E was able to herself put into context the 12 August and that context for her is a familiar history where she was exposed at an earlier time in her life to her father abusing alcohol. That continues quite obviously to be a fear that she has and it is influential in her coming to her view at this stage that she does not want to stay overnight with her father.
The concern is also that she quite clearly at this time is feeling torn in that she obviously feels a very deep connection with her father but believes that what she sees is a demonstrated preference by him for T. I accept his denials that this is not so but right now, as a young girl at the beginning of her adolescence, that is what E is feeling and it in all probability influences her wishes. That she feels that way she does not undermine her view even if it is not based on reality. The court must be in a position where it is able to deal with a child’s perceptions and feelings as well as objective reality.
The strength of E’s wish is reinforced by the fact that she was able to talk directly to her father during the observation session and tell him that she wanted orders in place that enabled her to go home at night. She challenged her father in a quite mature way when he presented to her the same argument that he has presented to the court. Again, without drama or any histrionics she told him that the proposals that he had in mind offered her no guarantee that he would not enforce an order that would require her to stay overnight with him.
I am satisfied, having regard to the material contained in the report, that E is a fairly mature 12 year old. I am also satisfied that her wish is to enjoy contact with her father but to have the right to return home in circumstances that she chooses to. She wants to adjust her time with her father to meet her growing needs for time with her friends and her slowly developing desire for independence.
T is clear as well in relation to his wishes for contact. Quite clearly, having regard to the material contained in the family report and the parties evidence, T enjoys enormously his time with his father. They share numerous sporting interests and he is keen that he is able to continue to spend alternate weekends with his father, school holiday time and to maximise his relationship with his father. He intimated to the counsellor as a 9 year old he feels the need to play with some of his friends free from his father. That does not mean that T is seeking to diminish his relationship with his father or that he doesn’t value it extremely highly.
The evidence is unequivocal that for T his relationship with his father is one of the most important relationships in his life. T knows that and wants it to continue. He wants [2] to spend a little bit more time playing solo, that is free from the influence of his mother and his father, just with his friends. T is looking for some structured time with his father of the type proposed by the mother for additional contact but also to be free from his father dropping round with quite such frequency and including himself in the boy’s play.
[2] page 9 family Report
The next issue, which I will address, is the nature of the children’s relationships with the parties and each other. Dealing with the children’s relationships with each other first. It is each party’s case that these children have a close and loving sibling relationship. That is unarguably the evidence and I find accordingly. It is the mother’s case that at this time E has different needs to T. This is because the children are different ages. Again, that reflects the court’s experience.
The mother presses upon the court the need for the court to ensure that it approaches the children’s interests differently because the nature of the children’s relationship with the parents at this point in time is a different one. That is a submission that has significant force. The evidence is that E is a somewhat anxious girl who also appeared to the counsellor to be aligned, or perhaps anxiously attached, to her mother for whom she takes some responsibility. That is a finding that accords with E’s description to the counsellor of her desire to spend more time with her mother, a fact that has been acknowledged by the mother and the father. That this is arising now for E does not mean and nor does the evidence support that E is subject to pressure from her mother to spend more time with her mother and less time with her father. The reasons could be multiple. The evidence does not enable an exhaustive analysis of why it may be that as a 13 year old E wants to be spending more time with her mother and less time with her father. It is not an uncommon situation in girls as they reach their teenage years. Similarly, I accept Mr O’s submission that boys in their often mid-teenage years have a particular yearning for more time with their fathers. It doesn’t mean anything critical could be said essentially of the mother or indeed of the father when those situations arise. In many families it is just the way of things.
The mother and daughter have a very close relationship. It is a healthy relationship and one in relation to which E feels a strong pull at this point in time. I am also satisfied that E has a healthy relationship with her father and that just as T is deeply attached to his father so too E is deeply attached to him. That she wants to spend at this point in time in her life less time with him does not mean and nor does the evidence enable me to conclude in my view that her attachment to him is diminishing. Rather, it means that E wants her independence. The father needs to his daughter’s connection with him. It is a longstanding one and if handled carefully it will certainly survive a young girl moving through her teenage years and need not lead to the spectre of alienation that he so deeply fears. Of course it could, and how he handles these next couple of years will be critical to the success of his relationship with his daughter throughout the remaining teenage years. If he takes a heavy-handed approach to E’s desire to spend more time with her mother and less time with him so then the risk is one articulated by the court counsellor and that is that she will become alienated from him.
The father has been able to demonstrate over the last couple of years a very sensitive approach to E’s changing needs of her relationships with her parents and with her friends. He should keep that sensitive approach at the forefront of his thinking and if he does so the future of their relationship will be a positive one. I am satisfied that the father and E have a healthy, loving relationship.
The next matter to which I will turn is the effect of making a change to the orders. The orders proposed by the mother is in a material way the arrangements that have been acceded to by the father in the last 18 months perhaps as far back as three years. That is, that he has allowed E a great degree of independence within the construct of his contact to her. When she has had birthday parties he has been able to co-operate with her desire to attend her friend’s birthday parties. He has relinquished Friday night contact, he has given up time so that E can spend shopping time with her mother and play time with her friends. The mother says that the intent of her orders is that they would be implemented in much the same way as the parties have by practice. She says, and I am satisfied it is the case, wishes to positively reinforce contact between the children and their father. What she wants to do in structuring the orders though is ensure that E’s desire to spend more time with her, particularly overnight time, continues to be respected by the father. This will ensure that E is protected as far as possible from conflict with her father about whether she is entitled to do so.
Undoubtedly, although it is unarticulated, the mother wishes to be protected from the spectre of contravention proceedings in the event that she allows E to stay at home rather than spend time with her father on an ordered contact arrangement. The father has shown a very sensitive approach and for his part does not challenge in a meaningful way the intent of the plans the mother has for his contact with his daughter. His case reflects that he is torn between continuing to be sensitive which I am satisfied he plans to be but also is tinged by fear for his relationship with his daughter. He is anxious that the mother’s commitment to his relationship with his daughter is not as strong as she would have the court accept. He fears that events may overtake this family commitment such that the mother might re-partner perhaps or decide to move away. He wants the certainty that orders would give him so that he can be protected from influences which are not yet real that might diminish his daughter’s time with him.
The two respective cases, in my view, highlight that although these parents have been able to co-operate in a way which reflects extremely well on them as parents of their children in the years since separation, right now they don’t trust one another terribly well as parents. That is unfortunate. When one stands back and looks at the manner in which the case has been presented, it is that these parents are in a very real way consistent about what they hope for their children and the way in which they feel their children should live. It would certainly be my hope that they would find a way to express to each other that they do indeed have a great deal in common as parents. They should not lose sight of that fact. It was patently obvious.
Conclusion
The conclusion that I have come to is that I should give effect to E’s wishes and ensure that there are orders in place that do not require E to stay overnight during contact with her father unless she wishes to do so. I raised during the course of the proceedings the importance of the message that the court orders themselves would send to these children and to these parents. The drafting of the orders is something to which I have paid particular attention. I should send a positive message to E and to T that the court is of the view that overnight contact is in their interests. That message would be lost if the orders were made as proposed by the mother.
It would be an inadequate to E’s wishes to continue the orders that were made in 1997. I accept the father’s evidence that he has accommodated E’s wishes in relation to contact but what those orders don’t do is articulate with clarity the importance of E’s wishes now that she is older.
The mother is a person who is a parent who is deeply committed to her children’s relationship with their father. He ought to come to accept that too. The orders will enable E to communicate to her father that she doesn’t want to stay overnight and that she wants to come home. He has respected that in the past and the orders will give him the opportunity to continue to do so.
If E is to come home during a period of contact then I accept Mr O submission that dropping E back as well as enjoying time with T can create conflict. Balancing their two interests can be difficult. The mother has kindly agreed that she will collect E from Mr O’s mother’s place if E wants to come back during a period of contact. The orders will reflect that agreement.
E must take some responsibility for managing her own relationship with her father. It is the mother’s case that she is growing up. She will have some responsibility to ensure that the father is able to make plans for his contact with E and with T. E should not at the last minute say she is not going to stay for contact. She needs to ensure that she communicates with her father her own plans and the arrangements that she wants to put in place with him. Maturity of course carries with it not just rights but also some responsibilities.
The mother will need to ensure that, if E doesn’t tell the father her plans for contact then she does. These orders provide a comprehensive structure for the fathers contact to the children. The mother has a right to her own privacy and for her time with the children to be enjoyed without disruption from the father. His habit of dropping in to the mothers home unannounced and uninvited must stop. Just as the other members of the family must structure their arrangements around the contact orders, so must he.
I am satisfied that the orders I am making today are orders that are in the best interests of the children. They are orders that try to ensure that the parties do not need to come back to court again. They have managed to do extremely well in my view in the years since separation from staying away from courts and making their own decisions and I hope that is a pattern that they return to in the future.
Any orders for contact can never be truly final and there is the prospect, of course, that there will be issues arise that neither the parties nor I have anticipated. I would hope that they would find a way to communicate with each other in the interests of their children.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 21 August 2001
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