B and P
[2002] FMCAfam 220
•31 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & P | [2002] FMCAfam 220 |
| FAMILY LAW – Variation of contact – best interests of the child – conduct of the parents – Family Law Act, ss. 60B, 65E,68F. H v W (1995) FLC 92-598 |
| Applicant: | C G B |
| Respondent: | T J P |
| File No: | PAM715 of 2002 |
| Delivered on: | 31 May 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 24 May 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom Lachlan Macquarie Chambers Parramatta |
| Solicitors for the Respondent: | Mr Dunkley Solicitor of McPhee Kelshaw DX 26729 Springwood |
ORDERS
By consent I make orders in accordance with pars 1 to 10 inclusive of the combined minutes of order:
(1)That the father have telephone contact with J each Wednesday, at a time to be agreed by the parties, with the father to telephone on the land line connected to the mother's residence.
(2)That for the purpose of the father's contact with J, he shall collect J and return J with respect to each contact occasion.
(3)That alternate weekend contact is to commence on Friday between 5.45 pm and 6 pm at the mother's residence.
(4)That each party shall not denigrate the other party or members of the other party's family within the sight, presence or hearing of J.
(5)Alternate weekend or Monday afternoon contact if granted shall be suspended for the duration of each school holiday period.
(6)Alternate weekend contact to re-commence on the first weekend after school resumes in each term. If the father has had contact with J during the first half of the preceding school holiday, and on the second weekend if the father has had contact with J during the second half of the preceding school holiday.
(7)That if the father's contact with J coincides with Mother's Day weekend, then such contact shall suspend at 5 pm on the Saturday before Mother's Day.
(8)That if the father is not to have contact on the Father's Day weekend, then he shall have contact from 5 pm on the Saturday prior to contact to 5 pm on Father's day.
(9)That the father have one week contact with J in each of term 1, term 2 and term 3 school holidays, being the first half in years ending in an even number or zero, and the second half of the years ending in an odd number.
(10)
That the father have contact from 5 pm Christmas Eve to 5 pm Christmas Day on years ending in an even number or zero and
5 pm Christmas Day to 5 pm Boxing Day on years ending in an odd number.
IT IS FURTHER ORDERED:
(1)That orders 1 and 2 made by the Family Court of Australia at Parramatta on 17 December 1999 are discharged.
(2)That the applicant father is to have contact with the child J C J B, born 30 December 1995, each alternate weekend commencing Friday 7 June 2002 from between 5.45 and 6 pm on the Friday until the commencement of school on the following Monday morning, provided that if the Monday following the Sunday of a contact weekend is a public holiday, then contact will conclude at the commencement of school on the Tuesday morning.
(3)For the purpose of exercising contact pursuant to O 2 above:
(a)the father is to purchase a school uniform for the said child and ensure that the child has a school uniform to wear to school on Tuesday, 11 June 2002;
(b)the mother is to ensure that the child is provided with a clean school uniform when the child goes to contact with the father on Friday, 22 June and subsequent occasions;
(c)the father is to deliver the child to school on the Monday or Tuesday morning, as the case may be, in sufficient time to ensure that the child is not late for school.
(4)The father is to ensure that on any evening before a school day the said child goes to bed by 7.30 pm or such later hour as the mother shall advise the father in writing.
(5)The father is to have contact with the said child during the January school holidays in each year as follows:
(a)for a period of 10 days commencing on 2 January 2003;
(b)for a period of two weeks commencing on 2 January 2004;
(c)for a period of three weeks commencing on 2 January 2005 and each subsequent year.
(6)In the event that Easter in any year does not coincide with a school holiday period:
(a)the father shall have contact with the said child from 9 am on Good Friday, 5.30 pm on Easter Monday in any year ending with an odd number;
(b)the father shall not be entitled to exercise contact other than telephone contact in any year ending in an even number, provided that if Easter does fall during a school holiday period, then Easter will be deemed to be part of that school holiday period and the father shall exercise contact during that period as set out in par 9 of the combined minutes of order above.
(7)The father is restrained from using any form of physical punishment on the said child.
(8)The father is to permit the said child to have telephone contact with the mother on at least one occasion during any period of seven days when the child is in his care.
(9)All exhibits may be returned after one month from the date of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM715 of 2002
| C G B |
Applicant
And
| T J P |
Respondent
REASONS FOR JUDGMENT
It is an application by the father to vary orders for contact made by Coleman J in the Family Court on 17 December 1999 relating to the child of the parties, J C J B, who was born on 30 December 1995. He is now six years of age.
The father was born on 8 November 1968. The mother was born on
20 December 1968. They are both 33 years of age. They commenced to live together on 20 January 1990. They were married on 21 July of that year. The child J was born in December 1995
The parties separated on 1 September 1996 when J was only a baby. They divorced in 1998. There were proceedings between them in the Family Court over contact arrangements. These proceedings were heard by the Coleman J, who made orders on 17 December 1999. The orders made on that occasion provided that the father should have contact on alternate weekends from 9.30 am on the Saturday to 5 pm on the Sunday, with the proviso that as from the first contact weekend in July 2000 the contact would commence at 5.30 pm on the Friday.
The orders also provided for the father to have one week's block contact during each of the four school holiday periods. There were no provisions made for such special occasions as Mother's Day or Father's Day.
The father has since re-married on 11 November 2000. His current wife has two children from a former relationship, A aged 11 and
S aged 7.
Matters came to a head between the parties earlier this year when the father commenced proceedings to vary the orders. He sought an interim order that he should have contact with J for the whole of the Easter holiday period, which for the first time in many years did not form part of the autumn school holiday period. An interim hearing was held on 25 March 2002. The father's interim application was not successful.
The parties have agreed on a number of necessary changes to the orders, which is very much to their credit. These points of agreement include: arrangements for the father to speak to his son by telephone every Wednesday; a slightly later pick-up time for contact on a Friday afternoon between 5.45 and 6 pm; suspension of alternate weekend contact during school holidays; arrangements for J to be with the appropriate parent on Mother's Day and Father's Day; Christmas arrangements and certainty in respect of the particular week during the shorter school holidays when block contact is to take place.
There are still some issues outstanding:
(a)the father's wish for weekend contact to continue until school starts on Monday mornings, as opposed to the mother's wish that the contact conclude earlier at 3 pm on the Sunday;
(b)the addition of public holiday Mondays to be added to a contact weekend where appropriate;
(c)a short period of contact on the Monday afternoon of the off week from after school until 6.30 pm;
(d)whether or not the father should use physical punishment on the child;
(e)arrangements for Easter, where Easter does not fall during the school holidays, as was the case earlier this year. The mother suggests splitting the Easter break in two. The father suggests alternating the break between the two parties;
(f)the father seeks more than one week in the Christmas holidays, but the mother says more than a week is too long for a six year old to be away from his mother.
The principles that the Court must consider include, the fact that when a Court exercising jurisdiction under the Family Law Act 1975 is considering making contact orders concerning a child, s 65E of the Act must be followed. This section lays down that the Court must regard the best interests of the child as the paramount consideration.
Section 60B(2) sets out a number of principles which a Court must take into consideration, except when the application of any of them is or would be contrary to the child's best interests.
Section 60B(2)(b) refers to children's right of contact on a regular basis, with both their parents and other persons significant to their care, welfare and development.
Now in determining what is in a child's best interest, s.68F(2) of the Family Law Act sets out a number of matters that a Court must consider. There are 12 of them in all, from s.68F(2)(a) through to
s.68F(2)(l) inclusive. Not all of them will be relevant in every case, but all of them must be considered as the Court has done in this matter.
Section 68F(2)(a) requires the Court to consider any wishes expressed by the child and any factors such as the child's maturity and level of understanding that may be considered to be relevant to the weight the Court should give those expressed wishes. The child's maturity, as well as the child's sex and background, are also to be considered under s.68F(2)(f).
The wishes of the child were considered in some detail by the Full Court of the Family Court of Australia in H v W (1995) FLC 92-598 where Fogarty and Kay JJ of that Court held that the wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of the conflicting evidence. Against that background the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of the wishes, their basis and the maturity of the child.
Ultimately the overall welfare of the child is the determinate. In that same case, Baker J held that that a child, and I quote:
"A child's wishes must not only be considered but must be shown to have been considered in the reasons for judgment of the trial Judge. Furthermore, if a trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given."
And he went on to say that the wishes of children should not be discounted simply because they are expressed by children.
It should be noted also that the Full Court of the Family Court has held that the wishes of children as young as eight years down to even four years would not be irrelevant and the authority for that proposition is Joannou v Joannou (1985) FLC 91-642.
The wishes of the children were also considered by the Full Court of the Family Court in R v R Children's Wishes (2000) FLC 93-000 where the Court held that whilst proper weight should be given to children's wishes, this did not mean that those wishes should not be departed from. Appropriate and careful consideration must be given to those wishes.
The Court must consider the nature of the relationship of the child with each of the child's parents where applicable and with other persons. In the case of Bryant v Neckley (1995) FLC 92-570, the late Treyvaud J considered the desirability of a child having contact with grandparents, in light of the welfare of that child being of paramount consideration.
It is noteworthy and regrettable in this particular case that the father and the maternal grandmother seem to be so estranged that they have no communication, even on occasions where they both attend the child's football match.
As far as this child's maturity, sex and background are concerned, he is six years of age. He has, in the father's evidence, reported certain wishes to spend more time with his father and clearly the father has expressed certain wishes to spend more time with his son.
The mother, on the other hand, reports that whilst she does not discount the strength of the relationship between the father and the son and the desire of the child to spend time with his father, she has some criticisms to make of some of the decisions which have been made by the father of some of the ways which he has carried out these decisions.
It is also important for the Court to take into account the need to protect the child from physical or psychological harm, either by being directly subjected or exposed to abuse or treatment, violence or other behaviour or by seeing or hearing another person being subjected or exposed to such treatment.
The mother has raised the issue of physical chastisement of the child. She says she does not use smacking in any form. She says the father has from time-to-time chastised the child physically. Whilst there is reference in the case to the word "belt", it is quite clear from the evidence that a belt is an expression used by the father to mean a hit with apparently the open hand and not the use of a long leather strap. The father says that he has used physical chastisement only occasionally.
The mother's views are that this is not appropriate. It sends a bad message to the child, especially as this child appears to be suffering some effects of the parents' inability to agree on a number of matters, had shown some violent behaviour at school last year including some bullying behaviour which the school and the mother regards as highly undesirable.
Now the attitude to the child and to the responsibilities of parenthood displayed by each parent must be taken into account by the Court. The mother in fact in her evidence says that the father is irresponsible as a parent. She complains of his not bringing the child back on time and on previous occasions there had been an issue about the mother's view allowing the child to get sunburnt when he is out on the water on a boat with his father. Fortunately the issue of appropriate sunburn precautions has been resolved by agreement between the parties.
The mother is critical of the father's at times unpunctuality. She is particularly critical too of, in her view, the father allowing J to stay up too late and being subsequently too tired for school the following day. Her evidence is that he usually goes to bed by about 7.30 the day before a school day. Her evidence was that the father has been letting the child stay up until after 8 and at one stage to watch a movie which, to her knowledge, went on television until about 10 and she has complained about J being tired when he gets home from school on the Monday after contact, not eating his meal, or not eating all of his dinner, displaying symptoms of lassitude and a lack of enthusiasm for doing his homework.
The Court must look at the occurrence of any family violence and whether or not there is a current family violence order, commonly referred to as an apprehended violence order or AVO. There is no evidence of an apprehended violence order being in force in this case.
The Court must also look at whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. One would hope that these proceedings and resolution of the issues, many of which the parties have agreed with the assistance of their legal advisers, should reduce the likelihood of there being further proceedings in the future. I am not of the view that there are other particularly outstanding relevant facts or circumstances.
It is clearly a case that there is some hostility or animosity between the parties, and on the mother's evidence it has been so certainly since the time of the interim proceedings earlier this year. The mother has particular doubts about the child being returned from contact on the Monday morning. Mr Samson for the father has pressed on me that the Monday morning return directly to school would eliminate one time each fortnight when the parents had to meet for contact changeover and the evidence clearly is that they do not speak and sometimes the father does not in fact get out of the car, and that is a source of some tension which clearly J, at the age of six, is able to pick up.
The mother's concern is about the times of the father's lateness. The mother's concern is about keeping J up too late before he goes to school, which is clearly a relevant issue, and the question was also raised as far as what about school uniforms and the father expecting the mother to pack and provide clean school uniforms, for J to go to school on a Monday it may well be that the mother does all the washing of school uniforms on the weekend and having to produce an extra clean school uniform on the Friday afternoon would place some extra burden on her.
The mother has been critical of the amount of child support that she has been receiving recently, although there is evidence before me that an agreement has been reached which would result in a significantly increased amount from the beginning of July.
I am of a view that an extension of contact on the Sunday night to allow J to be returned on the Monday morning by being taken to school has the potential to act in the best interests of the child by giving him further time with his father. It would mean however that the father would have to take the responsibility for meeting the mother's legitimate concerns. There would have to be a strict adherence to bed times. This child lives with his mother most of the time and the mother's regime for bed times is something which the father must respect, especially if the following day is a school day. The mother's concern of a child being up late and being tired and listless at school is a concern that cannot be discounted.
There is the practical point about the provision of the school uniform which I have previously referred to. I am of the view that if the father wants to introduce this on a regular basis he should do so, that is, taking the child to school on every other Monday. He should do so in a way which is going to reduce the strain on the mother's resources. In effect, I am of the view that he should buy a school uniform. I am not suggesting that he should hang onto this school uniform and J should only wear it in his presence, but I am of the view that if there is an extra school uniform that goes into the system, J can start off with a new uniform on the first of the new contact arrangements and that the mother then has, with J's equipment an extra uniform, so that she can ensure that there is a clean fresh school uniform so that J can take with him on a Friday afternoon when he goes to his father, and the father can ensure that he is then sent off with that clean uniform on the Monday morning. The father's also got to make sure that J gets to school on time.
I look at the question of the off-week Monday afternoon contact where the father suggests after school Monday until 6.30 pm. The mother has grave concerns about that. The child would be getting home late. He normally goes to bed on the night before a school day at about 7.30 or so. It would interfere with homework. She says it will also be disruptive. I am of the view that there is relatively little benefit in introducing this off-week Monday afternoon and it would appear that the disruption to be caused to the child's routine would outweigh any positive gains. If there have been introduced, then there are by orders with which the parties agree, a regular program of telephone contact, that would certainly help to build up the relationship or maintain the relationship between father and child, but I am not satisfied that this off-week Monday afternoon would be of any great benefit to the child, and certainly would not be outweighed by the disruption and inconvenience.
Similarly, there is nothing to be gained by splitting up long weekends. That where there is a public holiday Monday, if that is a contact weekend, it would seem to be more appropriate that J should have the entire long weekend with his father, and that would provide an extra amount of contact which the father clearly wants, and for which there is some evidence admittedly through the father that J would like it.
Similarly, the question of Easter. The mother's suggestion of splitting Easter if it does not include school holidays would lead to a situation where neither party could have an Easter holiday away. I am of the view that if Easter is going to fall at a time when school holidays do not, or more correctly, if the Department of Education and Training decides to hold school holidays that do not include Easter, that Easter should be considered on a rotating basis. In fact the arrangement I propose is that if Easter next year does not fall on the school holidays, that the father should have J for Easter on that occasion and any other Easter on an odd numbered year. That the mother should have the entire Easter with J on any even numbered years. However, if Easter falls within a school holiday period, then the normal school holiday periods would apply.
What about school holidays during the Christmas/January school holiday times? The mother says that J is only six. A week at a time is as much as he can cope with and that he could form some anxiety if he is away from his mother for longer than a week. Well, he is going to be seven at the end of December, and surely if there is a contact arrangement that provides certainty for both parents, if the father is abiding by some of the strictures that meet the mother's requirements, then J should be in a position where he can spend longer and longer periods with his father.
In my view, there should be a graduated program introduced during the January school holidays. J will then be 7 years-of-age. It would hardly be surprising if a child of 7 years-of-age would be able to cope with say 10 days with his father in one block in January 2003. Certainly, if he had the opportunity of ringing his mother on at least one occasion during that period of time, and in subsequent years, then I am of the view that that could be increased to two weeks and indeed to three weeks. As he gets older he is certainly in the position where he can spend longer with his father. He should be able to do so.
This leaves the question of physical chastisement, smacking. It is clearly an issue and the mother has advanced urgent reasons as to why she does not believe that J should be the subject of physical chastisement. The father says the smacking is done occasionally if the child acts up. It is certainly not done with any implement. The mother has had concerns about the child acting out at school, especially as far as violence, and is concerned.
The fact is that J lives with his mother most of the time. There should be a relatively uniform discipline policy. It is not in a child's interests if there are two different regimes as far as what is an appropriate form of punishment and what is not. I am of the view that the father needs to respect the mother's discipline policy. It does not sound an unreasonable policy of discipline and she certainly has taken steps to see that this child does behave, and indeed the school reports which became an exhibit indicate that his behaviour at school has certainly improved and his behaviour at home seems to be at an acceptable standard.
The need for a uniform discipline policy will provide some certainty in the child's life. It will indicate to the child that parents are able to impose a policy that is above and beyond their own particular differences with each other, and if the majority of the time discipline is involved at present without physical punishment, I am of the view that that is the regime that should exist the entire time, so I will be making an injunctive order for the benefit of the child relating to not imposing physical punishment.
If there is some consistency in the child's life, he will be happier going between each parent and he will see that each parent respects the views of the other and that will make him happier in himself and that must clearly be in this child's best interests.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 24 July 2002
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