B and P-L
[2003] FMCAfam 139
•1 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & P-L | [2003] FMCAfam 139 |
| CHILDREN – Contact – high level of conflict between the parties – extent of obligation on parents to inform the other of care arrangements for the care of the child – degree of autonomy in respect of sporting and other arrangements during contact – arrangements for Christmas. Family Law Act – ss.60B(1), 60B(2), 65E, 68F(2) B and B : Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | F W B |
| Respondent: | L J P-L |
| File No: | ADM3752 of 2002 |
| Delivered on: | 1 May 2003 |
| Delivered at: | A |
| Hearing date: | 17 April 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Applicant in person: | Mr F B |
| Counsel for the Respondent: | Mr S Lindsay |
| Solicitors for the Respondent: | Janet L Belchamber Pty Ltd |
ORDERS
All previous orders for residence, parental responsibility, contact and specific issues in respect of the child of the relationship T J B P born the 22nd of November 1995 (“the child”) are discharged.
That the child live with the mother.
That the mother have responsibility for the day to day care, welfare and development of the child.
The mother inform the father within 48 hours of any change in the child’s permanent residential address and the e-mail and telephone numbers on which the child is to be contacted.
Neither party be permitted to travel outside of the Commonwealth of Australia with the said child, without the written consent of the other party or pursuant to Court order.
That the mother authorise the principal of each school attended by the said child from time to time to send to the father at his expense:
(a)A photocopy of each school report about the said child;
(b)An order form for each school photograph of the child;
(c)Copies of all correspondence and or notices usually provided to the parents of students at the school attended by the child, including notifications of school concerts, sports days, speech nights and parent/teacher interviews.
The father be at liberty to visit the school or schools attended by the said child from time to time for events, activities or functions routinely attended by parents.
As soon as practicable the mother serve a sealed copy of these orders on the principal of the school currently attended by the child.
In relation to the child’s medical management:
(a)Save in the event of a medical emergency, if the child requires medical attention, both parties shall ensure that the child is taken to his customary and treating general medical practitioner from time to time or any other specialist to whom the child has been referred by that general medical practitioner;
(b)The mother shall inform the father in writing of any change of the child’s customary and treating general practitioner and the name of any specialist to whom the child is referred;
(c)The father shall abide by the dietary and medication regime recommended by either the child’s general medical practitioner or any treating specialist and shall ensure that the details of such regime are fully communicated to any person or persons who provides substantial care for T during any period of contact with the father.
(d)The mother shall:
(i)do all things necessary to authorise the provision to the father by the child’s current treating medical practitioner (currently Dr Andrew Hughes) and any such medical practitioner or specialist consulted by her in future in respect of the child of all information concerning the child’s medical condition and any treatment and necessary day to day management of his health that he may require in future and the father is at liberty to consult Dr Hughes, at his own expense, in respect of any medical condition currently suffered by the child and the treatment prescribed for it;
(ii)keep the father informed, via a communication book passing between the parties with the child at each contact hand over, of any medical consultations and/or referrals and of any change to the child’s medical management or of changes in dietary or medical regime and any relevant observations or information pertaining to the care and management of the child’s health together with any necessary medication that has been prescribed for medical conditions that are anticipated to resolve in the short term.
(e)The father shall at all times and at his own expense keep himself supplied with the necessary prescribed medication required by the said child for administration to him in the event that he suffers an allergic reaction, such medication to include puffers and inhalants administered by nebuliser and the mother is to authorise the child’s treating general medical practitioner to provide the father, at his own expense, with the necessary prescriptions for the dispensation of such medication.
Each party is restrained from taking the said child for any psychological assessment or psychological treatment, including therapy or counselling, without the written permission of the other party or after referral by the child’s treating general medical practitioner from time to time, and both parties having been informed of such referral and approved it.
That the father have contact with the child as follows:
When the father resides within the metropolitan area of A:
(a)During school terms, on each alternate weekends commencing Friday the 2nd of May 2003, commencing at the conclusion of school and concluding at the commencement of school the following Monday, provided that if it is a long weekend, contact shall conclude at the commencement of school on the following Tuesday morning.
(b)In the April school holidays:
(i)in 2004 from 9.00am Easter Sunday April 11 to 5.00pm Monday April 19th;
(ii)in 2005 from 5.00pm Sunday April 17th to the commencement of school on Tuesday April 26th (which period includes all of Easter);
(iii)in 2006 from 5.00pm on Easter Saturday April 15th to 9.00am on Monday April 24th;
(iv)in 2007 from the close of school on the last day of term to 5.00pm on the middle Saturday;
(v)in 2008 from the close of school on the last day of term until 5.00pm on the middle Saturday;
(vi)in 2009 from 5.00pm on Easter Saturday April 11th to 5.00pm on Monday April 20th;
(vii)in 2010 from the close of school on the last day of term until 5.00pm on the middle Saturday;
(viii)in 2011 and thereafter as agreed directly between T and the father;
(c)In the June/July school holiday period each year from the close of school on the last day of term to 5.00pm on the Saturday of the middle weekend;
(d)In the September/October school holiday period each year from 5.00pm on the middle Saturday to the commencement of school for the fourth term;
(e)In the Christmas school vacation:
(i)for the second half of such holiday period in 2003/2004 and each alternate year thereafter commencing at 9.00am on the middle day of such period (if an uneven number of days in the period) or at 9.00am on the first day of the second half of the period (if an even number of days in the period) and the computation of days is to be made by reference to the number of days, including weekend days that fall between the commencement and conclusion of the holiday period and concluding at 5.00pm on the second last day of the period;
(ii)for the first half of such school holiday period in 2004/2005 and each alternate year thereafter commencing at 9.00am on the first day of such holiday period that is free from formal school commitments and concluding at 5.00pm on the middle day of such period (if an uneven number of days in the period) or at 5.00pm on the first day of the second half of the period (if an even number of days in the period) and the computation of days is to be made by reference to the number of days, including weekend days that fall between the commencement and conclusion of the holiday period and concluding at 5.00pm on the middle day of such period (if an uneven number of days in the period) or at 5.00pm on the first day of the second half of the period (if an even number of days in the period).
(f)At Easter (where the days of Easter celebration fall outside of school holidays) as follows:
(i)in 2007 from the close of school on Maundy Thursday until 5.00pm Easter Saturday;
(ii)in 2010 from 5.00pm Easter Saturday to the commencement of school on the following Tuesday;
(iii)in 2011 from the close of school on Maundy Thursday to 5.00pm Easter Saturday;
(iv)in 2012 from 5.00pm Easter Saturday April 7th to 9.00am on the following Tuesday;
(v)in 2013 from the close of school on Maundy Thursday March 28th to the commencement of school on the following Tuesday;
(g)On the birthday of the child, in the event that it falls outside of a contact period provided elsewhere in these orders, from 4.30pm to 7.30pm.
(h)On Father’s Day in the event that it falls outside of any of the periods of contact specified in these orders, from 8.00am to 5.00pm on Father’s Day.
(i)All contact on weekends during school terms is suspended during school holidays and shall resume on the first weekend during the next school term if the father did not have holiday contact in the final seven days of the preceding holiday or in the second weekend during school term if the father did have such contact.
(j)At such other times and on such other terms as may be mutually agreed between the parties from time to time.
When the father resides outside the A metropolitan area
(k)On the same occasions as set out in orders 11 (b) (c) (d) (e) and (f) of these orders, with the father to make all necessary travel arrangements for the child to spend such periods of contact with the father and provide the mother with fourteen days notice in writing of his intention to take such contact and the necessary travel arrangements made by him for such contact;
(l)On an alternate weekly basis, during school terms, should the father be in A from the close of school on Friday to the commencement of school on the following Monday provided that should that Monday be a public holiday contact shall conclude at the commencement of school on the following Tuesday provided the father gives fourteen days notice to the mother of his intention to take such contact in A;
(m)At such other times and on such other terms as may be mutually agreed between the parties from time to time;
(n)By telephone at 8.00am on the father’s birthday, Father’s Day and the child’s birthday with the mother to facilitate such calls to the father’s residential telephone number.
For the purposes of contact handover when the father is resident in A or visiting A the child is to be collected for such contact and returned at the conclusion of contact during school terms at the premises of the school attended by the child from time to time and at other times at McDonalds West Terrace, A or at any other location as agreed between the parties from time to time. In the event that the father is living outside of South Australia the child is to be delivered and returned at the beginning and the conclusion of each period of contact at the A Airport.
The father is to inform the mother within 48 hours of any change in his permanent residential address and the email and telephone numbers on which he may be contacted during any periods of contact.
In the event that the child travels interstate either in or out of the company of one or other of his parents during any period of the school holidays both parties shall provide to the other party an itinerary setting out where and when the child will be travelling and with whom the child will be staying during such period of the school holidays, including details of that person’s name, address and contact telephone details and including details of any flight to be undertaken by that child to the other party in writing seven days prior to such travel.
It is a condition of the father’s contact with the child that:
(a)In the event that the father is unable to personally supervise the child during any period of contact for a period of time that is greater than 24 continuous hours; or
(b)The father proposes that the child spend a period of time greater than 24 continuous hours away from the father’s permanent place of address, from time to time, in the care of a member or members of the father’s family; or
(c)The father propose that the child be placed in the care of a babysitter; child carer or other person to whom the child is not biologically related during periods of school holiday contact whilst he is engaged in full time paid employment for a period of time greater than three consecutive days;
That the father provide to the mother the name, address and telephone number of the person or persons proposed by the father to provide such care for the child, together with the identity of any organisation by which that person is employed or organisation with which that person is affiliated, in the event that it is an organisation which ordinarily provides child care services or allied or similar services.
The mother shall facilitate the child’s telephone contact with the father each Wednesday morning between 7.30am and 8.00am to the father’s residential telephone number and on one occasion during the weekend in the event that the child is not on a contact visit with the father.
That all applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT A |
ADM3752 of 2002
| F W B |
Applicant
And
| L J P-L |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceeding are F W B (the father) and L J P-L (the mother). The parties are the parents of one child, T J B P born the 22nd of November 1995 and so currently 7 years and 5 months old. These proceedings relate to what level of contact the father should have with T and what conditions, if any, should relate to that contact.
The parties have been in dispute with one another for many years and these present proceedings follow on from several others, in this Court but mainly the Family Court at A. The level of mutual suspicion between the parties is high indeed and is reflected in the multiplicity of proceedings that have occurred between them in the past.
There is no dispute between the parties that T should continue to live primarily with the mother. However, the father seeks an extension of his current level of contact. He also believes that it is no longer necessary that his contact with T should be trammelled in any way or that he should be either compelled to inform the mother of what activities or plans he has for T during contact or be forced to take T to any particular activity, such as a child’s birthday party or a sporting activity, such as a swimming lesson, if it falls within his contact period and such activity has been previously arranged by the mother. The extent of the communication that should be prescribed between the parties regarding contact and what strictures should apply to that contact, are at the heart of the current dispute between the parties.
In essence, the father believes that the mother wishes to thwart his relationship with T and place as many barriers in his way as possible, so that his parental relationship with T will wither. It is the mother’s position that the father is unreasonable and lacks insight as a parent, particularly in regards to his attitude towards her, as T’s principal carer. As is uncontested between the parties, she has been T’s primary provider of care for all of his life to date.
The mother portrays herself as a loving and concerned parent. In these circumstances, it is her position that it is only reasonable that she know where T is during any period of contact and more importantly, with whom. This particularly applies to arrangements for T’s care in the absence of the father during any period of contact. It is also the mother’s position that there should be continuity in respect of arrangements that she has made for T in respect of activities that occur during the father’s contact periods.
The father bitterly resents what he sees as the mother’s unnecessary intrusions into his periods of contact. It is his position that he, as a competent and caring parent, should be free to do what he likes with T during any periods of “his” contact with T. If the mother has to neither inform him nor consult with him about any issue regarding T’s day to day care and control when he is residing with her, why should he be obliged to inform her what decisions he makes for T during contact? In many ways, the Court’s answer to this largely rhetorical question would seem to be the reason why these proceedings have come about and why they have been fought with such vehemence by both parties.
The parties are in broad agreement that the care of T should be shared equally between them in school holidays. However, due to their suspicion for one another and previous difficulties that have occurred between them, they seek a definite formula for the apportionment of those holidays that is incapable of misinterpretation in future. Accordingly, they seek a mechanism that will allow each of them to know, with certainty, exactly which portion of each school holiday that T will spend with each of them and exactly when such period will commence and conclude. The mother seeks such a formula until 2011, when T will be 16 years of age.
Such a formula should be easy to devise. However, difficulties occur in respect of the first term and Easter holidays. Sometimes, due to the changing times of Easter each year, these holidays are congruent and at other times not. Similarly, in the third term holiday the exact date of the Labour Day weekend changes. The father would like contact on this weekend. The father also wishes to have contact on his birthday on the 4th of October each year. These are matters of some importance to him.
The father’s family primarily resides in Victoria. The mother’s family primarily reside in South Australia. Both the paternal and maternal sides of T’s family wish to spend time with him and for him to feel a part of his wider family – both in its paternal and maternal sense. These issues come strongly to the fore in regards to Christmas Day. The mother wishes for T to spend at least a part of each Christmas Day with her and her family in A. The father wishes T to spend alternating Christmas Days with each of his parents. This would mean that T could travel with him to G to spend Christmas Day with the B family, particularly his paternal grandparents. Something that has never happened before.
These comparatively simple matters have, since July of 2002, when the current proceedings began, created a court file of 3 bulging volumes, each containing several affidavits from the parties, replete with annexures that detail the history of their previous litigation. Both parties see the other as inherently unreasonable and point to the past litigation as providing examples of this. It is not my function to review that earlier litigation. Neither has any great respect or regard for the other party as a person, let alone as a parent. The father, in particular, is bitter about the money he has spent in litigation in the past and what he sees as the unfairness and inflexibility of the system. He is particularly bitter about certain findings that were made about him in proceedings before Dawe J in December of 1998 and the circumstances surrounding the issue of a recovery order in July of 1999, when T was apparently removed from his parents by police officers, to their great distress and embarrassment.
As I explained to the parties, it is not the purpose of these proceedings to offer redress for what, in the context of Family Law proceedings generally, are now ancient wrongs. The focus of these proceedings is necessarily the future and my desire to consummate the wishes of both parties that this will be the last of the proceedings between them regarding T. For this mutually shared ambition they are to be congratulated. However, as I pen these reasons for judgment, I cannot claim to feel optimistic in this regard. But whatever orders are ultimately made, they need to be as precise and as unambiguous as possible, to avoid, so far as is humanly possible, the need for the parties to have recourse to further litigation in future.
Background
Without wishing to dwell unduly in the past, it is nonetheless necessary to set out the relevant matters that bring the parties to this point.
The father, aged 43 was born on the 4th of October 1959. He is an IT consultant but is not presently fully engaged in employment due to a down turn in the industry. He is not presently in a serious relationship. The mother, aged 37 was born on the 31st of August 1965. She is engaged in marketing and is also a lecturer in this field. She works largely from home. She has been married to T L since October of 2000. Neither she nor the father have any other children besides T. The parties have never been married to one another nor have they lived together. The relationship between them ended prior to T’s birth. The father commenced proceedings in the Family Court at A in respect of parenting arrangements for T when T was a few months old in February of 1996.
On the 25th of November, 1998, Burton J made orders that T should live with his mother and that she should have sole parental responsibility for his day to day care, welfare and development. Following a two-day trial, Dawe J made further orders in respect of the father’s contact to T on the 22nd of December 1998. These orders provided for increasing periods of contact until February of 2001, on which occasion the following orders applied:
“From February 2001 on each alternate weekend from 6.00pm Friday until 5.00pm Sunday provided that such contact be extended to 5.00pm Monday if such day is a public holiday in South Australia;
After February 2001 all weekend contact is suspended during school holidays;
From February 2001 for half of all school holiday periods at times to be agreed between the parties and in default of agreement as may be ordered by the Court;
For the entirety of Easter 2001 and in each alternate year thereafter;
From 2.30pm on the 25th of December 1999 until 6.00pm on the 26th of December 1999 and in each alternate year thereafter;
From 6.00pm on the 24th of December 2000 until 2.30pm on the 25th of December 2000 and in each alternate year thereafter;
From 9.00am until 5.00pm on the child’s birthday in 1999 and each alternate year thereafter provided that if the child’s birthday falls on a school day from 2001 onwards, such contact on the child’s birthday shall be as agreed between the parties and in default of agreement as may be ordered by the Court;
If Mother’s day falls on a contact weekend, contact is to conclude at 5.00pm on the Sunday afternoon immediately prior to Mother’s Day each year;
If Father’s Day does not fall on a contact weekend then the father do have contact from 9.00am until 5.00pm on Father’s Day each year;
That all contact take place in South Australia until the child is 6 years old or earlier with the written consent of the mother first having been obtained;
After the beginning of February 2000 and provided the distance between the homes of the mother and father does not increase by more than 10 kilometres, the mother (or a suitable person nominated by her) deliver the child to the home of father at the commencement of contact and the father (or a suitable person nominated by him) return the child to the home of the mother at the conclusion of contact.
That the mother do have an order for sole parental responsibility in relation to the child’s education and religious instruction and attendance.
That the mother do keep the father advised as to all details relating to any change in the identity of the child’s medical practitioners;
That the mother do keep the father informed of all relevant and significant matters relating to the child’s health and medical treatment.[1]”
[1] Orders 1(e) (g) (h) (k) (l) (m) (o) (p) (q) (s) 3, 4 and 5 of the orders of Dawe J made 22nd of December 1998
The parties are both critical of these orders in that they do not precisely stipulate how the school holidays are to be divided. The father is critical in respect of matters pertaining to T’s education and religious instruction.
At the time these orders were made, the father was regularly commuting between A and S, where he had a job in the computer industry. Due to T’s tender years, this necessitated the father commuting to A in order to take his contact with T pursuant to the orders of Dawe J.
T was born with allergies to several foods, particularly peanuts. In the past there was a danger of him suffering a severe anaphylactic reaction if he ate any of these foods. Adrenalin had to be carried by those who cared for him, to guard against this possibility. The mother is understandably protective of T for this reason.
The parties had difficulties with the orders of Dawe J and, in particular, with how it was to be determined which half of the various school holiday periods T should spend on contact visits with his father.
The mother also had other difficulties with the orders. She was concerned that they made no provision for her to be advised of who was caring for T during periods of contact and where he would be staying. These concerns arose because the father was compelled to work during some of his periods of contact and, as a result, others became involved in T’s day to day care. A matter of some sensitivity to the mother, particularly when T was younger. She was also concerned that she was not able to telephone T during periods of contact with his father.
As a result, further proceedings were instituted in the Family Court of Australia at A and resulted in the following orders being made by Registrar Kelly on the 2nd of January 2002:
1. That paragraph 1(h) of orders made herein on 22nd December 1998 be suspended during the present school holiday period.
2. That for the purpose of school holiday contact, the mother give and the father have contact with the child T J B P born on the 22nd day of November 1995 from 6.00pm on Saturday 5th January 2002 until 8.00pm on Saturday 19th January 2002 (or such other 14 day period as may be agreed between the parties).
3. That the father’s school holiday contact in the April 2002 school holidays be extended to a period of 12 days to take place on days to be agreed between the parties and to conclude no later than Friday 26th April 2002.
4. That the father do notify the mother as to residential arrangements for the child T during contact periods and of any intended travel plans for the child T during contact periods.
5. That the father do provide the mother with a telephone number during contact periods and do ensure that the child T telephones the mother on at least one occasion each week during contact periods, and more frequently as may be requested by T.
6. That the father do notify the mother in the event that he is working during holiday periods and do advise her as to the care arrangements in place for T during such periods of employment.
As has already been indicated, the father sees a number of these orders as being unnecessarily intrusive in respect of his contact with T and bitterly resents them. These deal with the requirement that he provide the mother with information regarding his intended travel with T, during any periods of contact, together with the details of the arrangements for T’s care in the event that he is working.
Following these orders, there were additional difficulties between the parties in respect of the mid year school holidays in 2002. These difficulties began the present round of proceedings between the parties. The father instituted these current proceedings on the 26th of July 2002 by way of an application in form 49, alleging a contravention of parts of the various orders already referred to and later, on the 5th of September 2002, brought an application in which he sought, both on an interim and final basis orders that dealt with: the fixing of specific periods during school holidays in which he would have contact with T; arrangements for hand over; provision to him by the mother of school reports; provision to him by the mother of information regarding T’s health and medical treatment and telephone contact.
As a result of the father’s application, further orders were made by me on the 18th of September 2002 specifying, on an interim basis, in which halves of the various school holidays the father should have contact with T and setting out arrangements for Christmas of 2002. I also made orders regarding the provision of T’s school reports to the father. As well as orders that required the father to notify the mother 14 days prior to each period of contact of the address and telephone number at which T would be staying; the details of any travel to be undertaken by T during any period of contact, particularly air travel; and requiring the father to provide to the mother a telephone number on which T could be contacted during contact.
As all the parties agreed that some sort of omnibus order should be made dealing with all aspects of T’s future care, the matter was fixed for hearing on the 17th of April, 2003. Perhaps naively I though that if my earlier orders were made, the parties themselves would be able to agree the fine detail in respect of issues to do with T in the period between the interim and the final hearing. This did not prove to be the case.
On the 17th of March 2003, I made orders dealing with the father’s contact during the Easter period of this year and to enable T to attend his paternal grandparent’s 50th wedding anniversary on the weekend of the 5th and 6th of April 2003 in M.
The father has stopped working in S. He has been out of the workforce since the 31st of October 2002, apart from some casual computing work and a newspaper round he has had. He is now permanently based in A and has no plans to live elsewhere.
At the outset of the proceedings before me on the 17th of April 2003, the father withdrew his form 49 application, apparently being content that it was appropriate for the substantive issues in dispute between the parties be determined rather than for him to pursue the issue of what happened in June of 2002.
The competing applications
As I have already indicated, although the issues between the parties can be briefly sketched, nonetheless their respective applications have each created a considerable amount of paper, as they have each attempted to define, with precision, their competing positions. The orders that each seeks are necessarily complicated and, as a result, must be set out in full. The father seeks the following orders[2]:
[2] Father’s reply filed the 11th of April 2003
1) That the orders made by Her Honour Justice Dawe on the 22nd of December 1998 be suspended.
2) That the mother do give and the father do take contact with the infant child T J B P born 22nd November 1995 as follows:
(a)Each alternate weekend from 6.00pm Thursday until 5.00pm Sunday provided that such contact be extended to 5.00pm Monday if such day is a public holiday in South Australia and from the commencement of the school year in 2004, each alternate weekend from 6.00pm Wednesday until 5.00pm Sunday provided that such contact be extended to 5.00pm Monday if such day is a public holiday in South Australia;
(b)All weekend contact is suspended during school holidays;
(c)Weekend contact resumes on the first weekend in the school term if the father did not have the child for the entire final week of the holidays and on the second weekend if the father did not have the child for the entire final week of the holidays. The entire week is defined as from 9am on the Monday until 5pm on the Friday;
(d)In 2004 from 5.00pm Sunday April 18th until 5.00pm Sunday April 25th; or one of the following alternatives being:
5.00pm Saturday April 17th until 5.00pm Saturday April 24th;
OR 6.00pm Friday April 16th until 6.00pm Friday April 23rd 2004;
(e)In 2005 from 6.00pm Friday April 22nd until 6.00pm Saturday April 30th;
(f)In 2006 from 9.00am Sunday April 23rd until 6.00pm Saturday April 29th;
(g)In 2007 and beyond, for the second half of the April school holiday period when Easter does not fall during the April school holiday;
(h)In 2007 and beyond, for the first half of the April school holidays when Easter falls on the first week and the father has the child for that Easter, in the alternative when the mother has the child for such an aster then in the second week;
(i)In 2007 and beyond, for the second half of the April school holidays when Easter falls on the middle or final weekend of the holidays and any shortfall due to a middle weekend Easter be taken on the first weekend of the April school holidays;
(j)For the entirety of Easter 2007 and in each alternate year thereafter;
(k)The first half of the July school holidays being from 6.00pm on the first Friday until 6.00pm on the middle Saturday or in the alternative from 6.00pm on the middle Friday until 6.00pm on the last Saturday;
(l)2003 and 2004, for the October holidays, from 6.00pm on the middle Friday until 6.00pm on the last Saturday and in 2005 and 2006 from 6.00pm on the first Friday until 6.00pm on the middle Saturday and from 2007 onwards whichever half of the holidays the father’s birthday falls.
(m)6.00pm Friday 19th of December 2003 until 9.00am Sunday 11th of January 2004.
(n)9.00am Wednesday 29th of December 2004 until 6.00pm Sunday 23rd of January 2005.
(o)6.00pm Friday 23rd of December 2005 until 6.00pm Saturday 14th of January 2006.
(p)9.00am Saturday 30th of December 2006 until 6.00pm Sunday 21st of January 2007.
(q)For the first half of the Christmas holidays in 2008 and each alternate year thereafter;
(r)For the second half of the Christmas holidays in 2008 and each alternate year thereafter;
(s)From 9.00am until 5.00pm on the child’s birthday provided that if the child’s birthday falls on a school day such contact on the child’s birthday shall commence at the conclusion of school on the night before the child’s birthday and conclude at the commencement of school on the day of the child’s birthday;
(t)If Mother’s Day falls on a contact weekend, contact is to conclude at 5.00pm on the Saturday afternoon immediately prior to Mother’s Day each year;
(u)If Father’s Day does not fall on a contact weekend then the father do have contact from 5.00pm on the Saturday afternoon immediately prior to Father’s Day until 5.00pm on Father’s Day each year;
(v)That any of these dates can be changed by written consent of both parents first had and obtained or by order of the court.
3) For the purpose of hand over should either parent move outside a fifteen (15) kilometre radius from the A GPO the parent that resides outside this radius should collect the child at the commencement of contact and return the child at the conclusion of contact. Should both parents reside outside the fifteen (15) kilometre radius and:
(a)The distance between them be greater than the lesser distance of either parents from the A GPO hand over occur at the A GPO; or
(b)The distance between the parents be lesser than the lesser distance of either parent from the A GPO.
4) That the mother do keep the father informed of the child’s progress at school by providing the father with copies of school reports and any other correspondence from the school pertaining to the child’s progress.
5) That the father be at liberty to separately attend parent teacher interviews.
6) That the mother do advise the father in writing within seven (7) days of all and any attendances upon medical practitioners.
7) That the mother do provide the father with a written report from the practitioners consultation with seven (7) days. Such written report to include the presenting symptoms, the diagnosis and any treatment. The equivalent of a “Sick Certificate” would suffice in minor matters.
8) That the father do provide the mother with his home telephone number at which the mother can contact the father in respect of the child during any period of contact.
9) That the mother do provide the father with a telephone number whilst the child is on contact with the father and be readily contactable on that number.
10) That all of the order made by Registrar Kelly on the 2nd of January 2002 be discharged.
11) That all of the order made by Magistrate Brown on 19th of September 2002 be discharged.
12) That the father be at liberty to telephone the child on one occasion on the non-contact weekend.
13) That the mother do return to the father within twenty-four (24) hours of any request, any clothes, toys or other items purchased for the child by the father.
14) That the mother do pay the father’s costs of and incidental to these proceedings.
The mother seeks the following orders[3]:
[3] Mother’s affidavit of evidence filed the 16th of April 2003 at paragraph 10
a)All previous orders for residence, parental responsibility, contact and specific issues are hereby discharged.
b)T J B P born on November 22 1995 shall reside with the mother who shall have sole parental responsibility for his care, welfare and development
c)The mother shall keep the father, at all times, informed of the child’s address, E-mail address and telephone numbers
d)The child shall not be permitted to travel outside Australia without the written consent of the other party or unless pursuant to a Court Order
e)The father is hereby permitted at his expense to receive directly from the school at which the child may from time to time be enrolled copies of the child’s school report, school photograph order forms, and all correspondence and/or notices usually provided to parents of students including notifications of school concerts and sports days, speech nights and parent/teacher interviews.
f)The mother shall do all such things as shall be necessary to authorise the provision of such reports, order forms, correspondence and/or notices directly from the school at the expense of the father
g)In relation to the child’s medical management
i)Save in the event of an emergency if the child requires medical attention he shall be taken to his treating general medical practitioner
ii)The mother shall keep the father informed of any changes from time to time of the child’s treating medical practitioners both general and specialist
iii)The father shall abide by the dietary and medication requirements established by the child’s treating specialists and shall ensure that those requirements are communicated to any person who provides supervises and/or provides care to T during contact periods
iv)The father shall within 56 days of these Orders at his expense attend upon Dr Andrew Hughes for the purpose of informing himself of the child’s current general dietary and medication needs for the proper management of the child’s health including his allergic condition
v)The mother shall
1. Do all such things as shall be necessary to authorise the provision to the father from time to time directly from the child’s treating medical practitioner(s) of information as to the child’s medical condition and treatment and of day to day management of his health
2. Keep the father informed via a communication book passing with the child at each contact hand over of medical consultations and/or referrals and of the child’s changing medical management needs communicated to her by the child’s treating medical practitioners and any other relevant observations/ information pertaining to care and management of the child’s health
vi)The father shall at all times at his own expense keep himself supplied with such prescription medication as he is advised may be required to be administered to the child in the event of an allergic reaction including puffers and inhalants administered by nebuliser
vii)Each party shall be and is hereby restrained from taking the child for psychological assessment or therapy other than upon referral of Dr Andrew Hughes general medical practitioner
viii)The mother shall keep the father informed via the communication book of –
1. Any sporting or extra-curricular activities events and/or
2. Social events such as a child’s birthday party to which T is invited
Which fall within contact periods
ix)It shall be a condition of contact taken by the father in A that he takes the child to sporting and/or extra-curricular activities (including matches practices and/or performances) in which the child is from time to time enrolled
x)It shall be a condition of all contact that the father
1. Or a member of his immediate family is resident with T during school holiday block contact periods
2. Keeps the mother informed of the names addresses and home and mobile telephone numbers of persons who will be caring for T if the father is unavailable to care for the child personally during that contact period
3. Provides 7 days notice of any intended interstate travel and of the intended itinerary and contact telephone numbers
4. If he is unavailable to care personally for the child by reason of work or other pressing commitments, that the father arranges for the supervision of the child during his absence by another adult person
xi)The mother shall facilitate the child’s telephone contact with the father each Wednesday morning between 7.30 and 8.00am to the father’s residential (land line) telephone number as advised in the communication book
h)Alternate weekend contact provided for in subparagraph 3(j) (I) and 3 (k) (iii) shall be suspended during all school holiday periods
i)In the event that Mother’s Day falls within an alternate weekend contact period, contact shall conclude at 9.00am on Mother’s Day
When the father resides within the metropolitan area of A
j)The father shall have contact with T as follows:
i)Upon each alternate weekend commencing Friday April 18th 2003 from the close of school on Friday to the commencement of school on the following Monday PROVIDED THAT if the Monday following a contact weekend is a public holiday then contact shall conclude at the commencement of school on the Tuesday morning
ii)In the April school holidays as follows:
1. In 2004 from 9.00am Easter Sunday April 11 to 5.00pm Monday April 19th
2. In 2005 from 5.00pm Sunday April 17th to the commencement of school on Tuesday April 26th (which period includes all of Easter)
3. In 2006 from 5.00pm on Easter Saturday April 15th to 9.00am on Monday April 24th
4. In 2007 from the close of school on the last day of term to 5.00pm on the middle Saturday
5. In 2008 from the close of school on the last day of term until 5.00pm on the middle Saturday
6. In 2009 from 5.00pm on Easter Saturday April 11th to 5.00pm on Monday April 20th
7. In 2010 from the close of school on the last day of term until 5.00pm on the middle Saturday
8. In 2011 and thereafter as agreed directly between T and the father
iii)In the June/July school holiday period each year from the close of school on the last day of term to 5.00pm on the Saturday of the middle weekend
iv)In the September/October school holiday period each year from 5.00pm on the middle Saturday to the commencement of school fourth term
v)In the Christmas school vacation
1. In 2003/2004 and each alternate year thereafter from 2.30pm on Christmas Day to 5.00pm on January 10th
2. In 2004/2005 and each alternate year thereafter from the close of school on the last day of the school year until 2.30pm on Christmas day and from 5.00pm on January 10th to 5.00pm on January 24th
vi)At Easter (where the same falls outside of school holidays) as follows:
1. In 2007 from the close of school on Maundy Thursday until 5.00pm Easter Saturday
2. In 2010 from 5.00pm Easter Saturday to the commencement of school on the following Tuesday
3. In 2011 from the close of school on Maundy Thursday to 5.00pm Easter Saturday
4. In 2012 from 5.00pm Easter Saturday April 7th to 9.00am on the following Tuesday
5. In 2013 from the close of school on Maundy Thursday March 28th to the commencement of school on the following Tuesday
vii)On the birthday of the child, where the same fall outside of a contact period provided for elsewhere in these orders, from 4.30pm to 7.30pm
viii)On Father’s Day where the dame falls outside of a contact period provided for elsewhere in these orders, from 8.00am to 5.00pm
When the father resides outside the A metropolitan area:
k)That the father have contact with the child as follows:
i)In the mid year school holiday periods as set out in subparagraphs (h) (ii) (iii) and (iv) above the father to make necessary travel arrangements and provide the mother with 14 days notice of same in writing
ii)In the Christmas school vacation
1. In 2003/2004 and each alternate year thereafter from 2.30pm on Christmas Day to 5.00pm on January 10th
2. In 2004/2005 and each alternate year thereafter from the close of school on the last day of the school year until 2.30pm on Christmas Day and from 5.00pm on January 10th to 5.00pm in January 24th
The father to make necessary travel arrangements and provide the mother with 14 days notice in writing of same
iii)In A on any alternate weekend commencing Friday April 18th 2003 upon 14 days notice from the close of school on Friday to the commencement of school on the following Monday PROVIDED THAT should the Monday following a contact weekend be a public holiday then contact shall conclude at the commencement of school on the Tuesday
iv)At such other times as may be agreed should the father be in A
v)By telephone at 8.00am on Father’s Day, the father’s birthday and the child’s birthday the mother to facilitate the calls to the father’s residential (land line) telephone number
vi)At Easter where the same falls wholly outside of the April school holiday period at time to be agreed
l)Contact hand over shall occur
i)When the father is resident in South Australia or visiting A to take contact
1. The child’s school where contact is to commence or conclude at the commencement or close of a school day and
2. Otherwise at McDonalds West Terrace city or as agreed
ii)When the father is resident interstate at A Airport
m)All applications before the court are otherwise dismissed and this matter removed from the list of pending cases
The issues
Accordingly, the major issues for determination between the parties seem to be as follows:
·Should the father’s alternate weekly contact be extended, as he seeks, from the current arrangement of 6.00pm Friday until 5.00pm on Sunday to one which begins at 6.00pm Thursday and concludes at 5.00pm the following Sunday from now on until the end of 2003 and thereafter from 6.00pm Wednesday until 5.00pm the following Sunday or should weekend contact remain as it is other than that T be collected and returned for contact from his school;
·How is information to pass between the parties regarding T’s medical condition and treatment – should it be by way of a communication book as the mother seeks or by way of specific written report or medical certificate provided by the child’s doctor as the father seeks;
·How is T to be provided with his necessary medication during all periods of contact – specifically what should be the mechanics for the father obtaining the necessary prescription for the provision of this medication, particularly medication for his possible allergic reactions and other prophylactic medication;
·Should the father be required to take T to sporting and/or other extra curricular activities, which have been arranged by the mother to fall within periods of his contact with T;
·Should the father be required to inform the mother of the names, addresses and telephone numbers of all persons who will be caring for T during periods of contact;
·Should the father be required to give any notice of his intention to travel interstate with T during periods of contact and if so how long should the notice be and should it include an intended itinerary and contact telephone numbers and should a complementary obligation be placed on the mother in this regard;
·Is it permissible that the father place T in the care of third persons during periods of his contact; if so, who should those people be and what obligation should fall on him to inform the mother of those arrangements and how those persons may be contacted. In particular, for extended periods of contact, including overnight periods, should responsibility for the care of T be restricted to the father and members of his immediate family;
·What obligations should fall on the father to inform the mother of any of the arrangements that he makes for T during any periods of contact with him;
·If the father is unavailable to care personally for T during any brief period of contact should he be obliged to arrange an “adult” for these periods as the mother seeks or should he be free to arrange a “babysitter of an age acceptable to community standards” as the father seeks; should he be required to inform the mother of these arrangements;
·What arrangements should be made in respect of Christmas contact and where and with whom of his parents should T spend Christmas Day;
·What precise mechanisms should exist to delineate which halves of the school holiday periods should allocated to the father’s contact with T and in particular how should the Easter and Third Term holidays be dealt with.
The relevant law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters as set out in section 68F(2) of the Family Law Act the various subsections contained in section 68F(2) comprise a list of matters that must be consider to the extent that each is relevant to the particular case. These matters are as follows:
a)The wishes expressed by any child concerned;
b)The nature of the relationship between the child with his or her parents;
c)The likely effect of any change in the child’s circumstances;
d)The practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)The capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
f)The child’s maturity, sex and background;
g)The need to protect the child from physical or psychological harm;
h)The attitude of the parties to the responsibilities of being a parent;
i)Any family violence that may involve the child or a member of the child’s family;
j)Any relevant family violence order;
k)Whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child concerned.
Paragraph (l) of section 68F(2) permits the Court to take into account “any other fact or circumstance that the Court thinks is relevant”. This insures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act[4]. In this case, it is the Court’s duty to make relevant findings of fact concerning the evidence presented by each of the parties and then apply the subsections contained in section 68F(2) as they are relevant to those findings, in a commonsense and practical way, so whatever final orders are made, result in a situation that will serve T’s best interests.
[4] B and B: Family Law Reform Act (1997) FLC 92-755
The evidence
The father relied on the following affidavits of evidence:
i)Two affidavits of himself filed on the 5th of September 2002 and the 11th of April 2003;
ii)An affidavit of his father, E F B sworn the 21st of March 2003
iii)An affidavit of S R affirmed the 3rd of April 2003.
Counsel for the mother chose not to cross-examine either Mr B S or Mr R, although each of them was available at Court on the date of the hearing. As a result, I accept the evidence of both Mr B S and Mr R. In particular, I accept Mr B S’s evidence that, so far as the B family is concerned, T is a much loved member of their family and that he and his wife and children would dearly love to know him better. He and Mrs B had an extended period of contact with T, in April of 2002, in Victoria and this went well. Both Mr B S and his wife would like to have further opportunities to have contact with T in their home and in the homes of their children in Victoria. Unfortunately, neither Mr B S nor his wife currently enjoy good health. For this reason, there is an urgency about their position in regards to T and their desire to know him better. To some extent, Mr B S and his wife share the suspicion that the father has for the mother in this matter.
Mr R is the 21 year old son of the father’s previous partner, with whom Mr B was involved from the mid 1990’s until mid 2001. As a result, Mr R knows the father and T very well. In the past he has helped the father care for T and, in particular, during the last September school holidays, assisted the father by collecting T after a sports coaching clinic that T attended at P A C and looking after him until the father finished work. I accept that Mr R is a responsible person, who enjoys a good relationship with T. Mr R deposed that “Frank has a great relationship with T.” Again, it seems to be the case that as with most of the other protagonists in the matter, he is closely aligned with one party and can see no good in the other.
The mother relied on the following affidavit of evidence:
i)An affidavit of herself filed on the 16th of April 2003.
This affidavit consisted in large part of her proposals for final orders in this matter and was her attempt to encapsulate orders that would meet the parties’ need for certainty regarding future arrangements for T’s care and in particular contact arrangements and would also meet her need to be provided with information regarding T’s care during periods of contact. It was my impression of her that she had made a bona fide attempt to put forward proposals that would ensure that T did have extensive and meaningful contact with his father and would have the opportunity to extend his relationships with various other members of the B family. This was most certainly not an impression that I shared with the father, who is vehemently of the view that the mother wishes to circumscribe his contact with T as much as possible and prevent T from forming relationships with members of the B family.
Clearly, the circumstances surrounding T’s birth and the end of the relationship between the parties were not conducive to them forming a cooperative and mutually trusting relationship with one another, in regard to the care of T. These difficulties have existed to the present time and, in my view, are likely to persist for the foreseeable future. The prognosis in regards to the parties mending the current parlous nature of their relationship is bleak indeed. However, of the two parties, I formed the impression that the mother was the one who was more likely to be capable of giving ground and mending fences. Certainly, she seems to have made a number of concessions in her most recent affidavit. The father continues to be suspicious of her and somewhat self-righteously portrayed himself throughout the proceedings as a reasonable person, who had been consistently wronged both by the mother and “the system” generally. However, he is clearly not without fault in respect of the difficulties between the parties. The sad fact is that both parties are intelligent people, who each realise the conflict between them has ramification for T’s emotional well being, as he grows older. Ultimately, the means of ending the conflict between them is in their own hands. Each of the parties has much to offer T as he grows and matures into adulthood and beyond.
a) Conditions to be placed on the father’s contact
Counsel for the mother chose to approach the task of cross-examining the father by putting each of the mother’s proposals for final orders to him and eliciting his response to those orders. The sad irony of this case is that, although the parties are in bitter conflict with one another, the matters actually in dispute between them are in a small compass indeed. Regrettably, I formed the impression that many of the father’s objections to the orders sought by the mother were made on the basis of principle alone, rather than with any regard for either T’s best interests or the feelings of the mother, who after all has been T’s primary care provider for the vast majority of his life to date. Most of the father’s objections to the mother’s proposed orders relate to the requirement that he provide the mother with information as to where and with whom T will be during periods of contact and that he be compelled to take T to activities that have been prearranged for him by the mother.
In essence, the father’s position is that it is unreasonable that there be any strictures placed on his contact with T. In his own words he wants to be in a position “to make up my mind as to what we (T and he) do during my contact”. The father deposed that he is willing to cooperate with the mother, but does not want to be dictated to by her, in regards to his periods of contact with T. In other words, he wants what he describes as, “the final say” in respect of what happens, where and with whom during contact. My sense of his evidence is that he feels diminished as a parent by the mother’s requirements to be informed about matters to do with contact; and for him to be obliged to take T to any particular activity that has been earlier arranged for T by her. He is aggrieved that no reciprocal obligations fall upon the mother towards him, in respect of the periods of time that T lives with her. He feels that it is unfair that the mother is able to take T to a particular activity or indeed leave him with a friend or relative and not be obliged to tell him. The mother’s entitlement to do this flow from both the orders of Burton, J made on 25 November 1998 and order 3 of the orders made by Dawe, J which granted her sole parental responsibility in respect of matters pertaining to T’s education and religious instruction.
The father argues that there should be complete equality of responsibility and obligation between the parties in respect of T. Ultimately, he wants to move to a situation where T is in shared care. If the mother need not tell him when T is in childcare or with one of his maternal relatives, why should he be required to tell her when T is in childcare or in the care of some other person, during his period of contact? In many ways it is a fatuous argument, being more related to the father’s need for equality and fairness in his dealing with the mother than to any particular need of T himself. This situation has come about because of the tensions between the parties themselves and their inability to see the other’s point of view. I suspect these difficulties flow from the father’s feeling of being aggrieved by the earlier orders, to which reference has been earlier made; the long standing difficulties in their relationship, which arose prior to T’s birth; and the parties’ quite different personalities. The father is proud, assertive and somewhat secretive, particularly in regards to his dealings with T. He feels that his proper role as a parent has been diminished because he is a “contact parent”. The mother’s personality is, to a large extent, defined by the fact that she is a mother. She is fiercely protective of T and no doubt has a tendency to worry about him. This is understandable given T’s earlier health problems and the attitude the father has towards her, which seems to be essentially negative. For obvious reasons, she wants to know as much as possible about T and the arrangements for him during contact. This combination of personalities and the other factors has made making arrangements for T between the parties difficult in the extreme.
Both the father and mother seem to me to be loving and devoted parents, who want T to take part in as many activities in life as possible, so long as he enjoys them and they are safe. The parties themselves however do not seem to recognise that they essentially have the same goals for T. As each of the parties has no doubt come to realise through long experience, being the parent of a child who is separated from the other parent means a life of constant sacrifice and often a great deal of personal inconvenience.
The father criticises the mother for enrolling T in a swimming class, which was not conveniently placed near to his home and of accepting an invitation to a birthday party, when he might have had something else planned for T. Such issues are the normal exigencies of parenting, and ordinarily, should be capable of resolution on an issue by issue basis, as a result of a focus by the parties on what is likely to be in the child’s best interests at the time. Contact can be inconvenient for all concerned. Similarly, so can arrangements for a particular child to attend sporting or other activities on weekends, as any parent knows who has had to ferry a child or children from one event to another, on the weekend, across any large metropolitan centre.
The parties agree that T should go to swimming and birthday parties and have a happy and fulfilled childhood. Birthday parties and swimming are the normal activities of childhood. They should not be a battleground. What seems to be important to the parties is their perception of who is in control of how T takes part in such activities.
As a consequence of the orders made by Burton J on the 25th of November 1998, orders which were not opposed by the father, the mother was granted sole responsibility for providing T’s residence as well as for making decisions about his day to day care, welfare and development. On any view, she has been the most significant person in T’s life to date. She has provided for most of his needs and I have no reason to believe anything other than that she is a capable and loving parent. That is not to derogate in anyway from the important role that the father has played. I accept that he regularly travelled backwards and forwards between S and A, to maintain and develop his relationship with T and, in large part, has now decided to settle permanently in A, so that he can be close to T. However, in all the circumstances of this case, it does not appear to me to be unreasonable that the mother would want to know where and with whom T is at any given time. Her peace of mind and sense of security about arrangements are, in my view, a matter I can take into account, in determining what contact and specific issue orders should be made in respect of T[5].
[5] See Sedgley & Sedgley (1995) FLC 92-623 at page 82,259
It also seems to me to be reasonable and a matter of common courtesy that the father should inform the mother of care arrangements for T in a general sense. This does not appear to me to be as oppressive to the father, as he seeks to portray it. On the contrary, in my view, the exchange of such information between the parties is likely to make contact a smoother process and will assuage the mother’s natural concerns about T. The secrecy the father wants will only deepen suspicion between the parties. The father wants to have a flexible regime for contact. Ideally, such a regime will come about when the parties begin to trust one another and their respective abilities to make judgements as parents. A situation that is unlikely to come about if the father does not provide basic information to the mother.
I accept that the father does want to spend the maximum amount of time with T. It is clearly not the case that T will be consigned to childcare during periods of contact, if the father or other members of his family are available to care for T. However, it will be necessary for the father to make other arrangements for T’s care from time to time, due to his work commitments and his need to earn an income. It is also appropriate that T spends time in the company of his paternal grandparents, aunts, uncles and cousins. I accept, as a matter of general principle, that children develop better when they recognise that they have a place not only in the home where they live but in the wider family[6].
[6] See Bright & Bright v Bright & Mackley (1995) FLC 92-570 at page 81,658
The orders that the mother seeks do not prevent others caring for T during periods of contact. To this extent she recognises the reality of the father’s situation. She seeks information for her own peace of mind, as much as anything else and, in the event of some calamity, that she knows where T is and with whom. As I have already said, the peace of mind of the mother is, I believe, a relevant consideration in determining what orders should be made in this matter. I do not believe that the provision of such information should cause the father to question his status as a parent. Although he may find it personally demeaning to have to provide such information to the mother, a person for whom he has little respect, the fact remains that she does have the responsibility for making day to day decisions concerning T’s welfare. I accept that the father has good judgement, in the sense that he would not willingly place T in any position where it is likely he would come to harm and would not consciously leave T with anyone whom he thought irresponsible. However, I reiterate that it does not seem to me to be unreasonable for information about care arrangements for T to be provided to the mother, given the pivotal position she occupies in T’s life.
As with all things, it is a question of degree and reasonableness in all the circumstances, as to what the extent of the requirement for the father to inform the mother of arrangements for T during periods of contact should be. The extent of the information to be provided also depends, to a large degree, on the extent of the respect and trust the parties have for one another. Where one party has full confidence in the other as a parent, commonsense dictates that the extent of the information to be provided can necessarily be more truncated. Although, obviously, mature adult parents do not have secrets from one another about arrangements for their children. Sadly, the parties in this case have very little trust and respect in one another and, as a consequence, it seems to me, that the requirement for information to pass between them should be at the upper end of the scale.
It would be inappropriate for the father to take an extended period of holiday contact with T and place him in childcare, with strangers, for the entirety of that period[7]. The central purpose of contact, after all, being to enhance and develop the relationship between parent and child, to the child’s ultimate benefit. On the other hand, given the necessity that the father has to earn an income and the clear possibility that he may receive work at the last moment, as with all working parents in this day and age, it does not seem to be unreasonable that he should have recourse to some form of childcare from time to time, when T is in his care. It does not seem to me to be likely that the father would choose to place T in childcare during periods of contact, as a preference.
[7] See O’Reilly & O’Reilly (1977) FLC 90-300
To her great credit, the mother recognises that it is likely to be in T’s best interests for him to form relationships with members of his extended paternal family and this will involve him spending time in the care of his paternal grandparents and aunts and uncles.
It seems to me that it would be unduly onerous for the father to have to inform the mother if T is placed in someone’s care for a short period of time, such as during the day. As I say, I am satisfied that the evidence does not disclose that the father would willingly place T in a situation where it is likely that he would come to harm, by reason of the father’s choice of person to care for T during such brief periods. For example, I can see no difficulty with the father enrolling T in a sports skills clinic and allowing someone like Mr R to collect him after such a clinic and care for him, until the father returns home.
However, in situations where T is placed with someone overnight, including with a relative, it seems to me to be reasonable that the father should inform the mother of the name, address and telephone number of that person or, in the event that T is placed in the care of a professional child carer, including a babysitter, for extended periods of time during school holiday contact. However, it is difficult to formulate an exact order to deal with every such eventuality, without making arrangements between the parties even more complicated than they already are and so lead to possible dispute and the institution of more proceedings.
The father objects to having to provide the telephone numbers of members of his family to the mother, in the event that any of them are providing care for T for extended periods of time. Like the M and C, they apparently cannot bear to converse with one another. If this situation is the case, what sense can T gain of belonging to both his paternal and maternal families? I have not been provided with any compelling evidence that the mother will abuse such information, if it is provided to her.
In all the circumstances of this case, I propose to make orders that will require the father to inform the mother of the names, addresses and contact telephone numbers of all persons who care for T, in the father’s absence, on an overnight basis.
The parties recognise that it is appropriate, given T’s age, that he travel with each of them interstate to enjoy holidays there. The father has criticised the mother for not informing him of the fact that she took T with her on a holiday to the Gold Coast. The father is a great stickler for equality of obligations between the parties. I recognise that there was no obligation on the mother to inform the father of such a holiday. However, it does seem to me to be a question of mutual curtesy that both parties inform the other of where T will be and the itinerary related to any interstate travel that he may undertake with either of his parents. Even in a country as secure and as free from civil strife as Australia, knowing where one’s child is during an interstate holiday is something that leads to a parent’s peace of mind. In my view, that obligation should be mutual in this case.
b) Restriction on activities during contact
The father portrays the mother as a manipulative and scheming person, who is determined to thwart his contact with T, by whatever means are available to her. He suggests that she will arrange activities for T on his contact weekends, either to sabotage his contact or to severely inconvenience him. Again I can see no solid evidence to support this contention. The one incident to which the father points is when the mother arranged swimming for T at a pool near her home, rather than one midway between their homes. This may be unthoughtful, but it does not appear to me to be malicious. Indeed, most of the activities that T does do on weekends, the father would support T participating in and he himself would want to engage with T in them. It all comes down to who of them should have the final say as to what that activity should be. Again the perception of who is in control seems to be everything.
I can understand why the father would feel frustrated that, unbeknownst to him, some activity has been planned, which has the consequences of disrupting plans earlier made by him and, more importantly, that cause him personally to have less time interacting directly with T. I can also understand why the mother would want T to have a sense of continuity in respect of the activities he undertakes. Once again, it is a question of degree. It is neither possible nor practicable for orders to be devised which cover every conceivable occurrence to do with contact. To attempt to construct such orders may unwittingly lead to more conflict between the parties, as argument rage between them about the interpretation of those orders and resentment grows as a result.
The law requires me to examine the matter from the perspective of T’s best interests. It is in T’s best interests to maintain his relationship with his father. Ideally his (T’s) wishes, as to what he wants to do on weekends, should also play a part. The father deposes that, if successful in his application, he would consult with T and arrange things to do during periods of contact with him, independently of the mother. This could include things arranged by the mother, if both he and T agreed to them. However, he will not be dictated to by the mother, in respect of her arrangements for contact. Accordingly, there may be a degree of uncertainty about arrangements for contact. The difficulty is that, as the mother has responsibility for T on most days of the week, she will know what invitations he will have received and, most likely, what sporting opportunities that have arisen for him. Is she to accept these invitations and opportunities knowing that they may be vetoed by the father after they have been caucused by the father and T together independently of her? The consequence of this is, I fear, that there is the potential for disputation between the parties over the most trivial of activities. T may unwittingly become the arbiter of these disputes. This cannot be conducive to his emotional well being. The father himself has raised concerns about T being harmed by the current level of dispute between the parties[8].
[8] See paragraph 46 of the father’s affidavit filed the 11th of April 2003
Sadly, it seems that the parties are incapable of determining between themselves, on a needs basis, what T should do on contact weekends, bearing in mind their mutual convenience and interests and, more importantly, T’s best interests and wants. Accordingly, it seems clear that one or other of the parties needs to have responsibility for making decisions as to precisely what T will do on contact weekends.
The mother is better placed to know what invitations T has received and what activities exist for him arising from his attendance at school. However, the father mistrusts her judgement and believes that she is likely to act capriciously against him. To do as the mother suggests, may create more tension between the parties in the long run, as the father will continually resent having, as he sees it, his hands tied by the mother in respect of contact.
On the other hand, to do as the father proposes, may cause T to miss out on opportunities. It also may have the consequence of making T feel, at the beginning and end of each contact period that he is passing through some metaphorical “Checkpoint Charlie” and moving from “the mother’s zone” to “the father’s zone” of responsibility for him. Neither proposal is particularly palatable to me.
However, on balance, I have decided to accede to the father’s proposal for the following reasons. Firstly, I believe that it is the proposal that is least likely to lead to the institution of further proceedings. The parties both agree that there has been enough litigation between them. The father will resent any perceived strictures in his contact. This will inevitably lead to disputes and more proceedings. This will be harmful to T. It is also important, to some extent, that the father is able to feel that he can engage with T in activities of his (the father’s) choosing. It does not appear to me to be unreasonable for the father to be able to choose some special activity with which he wants to engage with T from time to time or plan some special event. He should be able to do this without fear of veto from the mother. This will extend his existing relationship with T.
Secondly, I do not believe that the father is likely to prevent T from engaging in the activities that he (T) wants to from time to time or that it is likely that he will enrol T in activities that will be detrimental to him. The father, in spite of his obvious conflict with the mother, did seem to be focused on the sorts of activities that were appropriate for T to do, during periods of contact with him. I do not believe that he is likely to arbitrarily forbid T any activity upon which T has set his heart. It seems to me that T is capable of conveying what he wants to do to his father.
Thirdly, T is no doubt well aware of the fractured nature of his parent’s relationship and will be able to accommodate the concept that his father makes decisions for him during periods of contact and his mother makes decisions for him at other times.
Fourthly, it may enable T and his father to engage in an activity of the father’s choosing, which may in time foster the relationship between them. This seems to be evident from the father’s decision to enrol T in the sports skills clinic at P A C in the September school holidays. The father clearly wants to be involved in T’s life, particularly his sporting activities. Although it may not be the case, it is at least the father’s perception that the mother wishes to prevent him being so engaged. It would seem to me to be likely in the long term that T would benefit from being involved with his father in sporting activities. Incumbent in this, is the ability of the father to have input into at least some of the sporting activities in which T engages.
c) Medical management
The parties are in general agreement in respect of most matters to do with T’s medical management. The father cooperated with the mother in respect of T’s allergy to peanuts and took part in a test in which T was exposed to small amounts of peanut butter to gauge the level of his allergy. The parties agree that T should attend his customary doctor, unless there is an emergency; that the mother should inform the father of any changes in the identity of T’s doctors; and that they should both abide by any recommendations made by those doctors in respect of T’s diet and medication required by him. The father is prepared to attend T’s doctor to receive information from him, regarding T’s current dietary and medication needs.
Where the parties disagree is the method by which the mother is to convey to the father information about T’s medical requirements, as they change from time to time. The mother proposes a communication book. The father proposes that each medical practitioner concerned provide him with either a written report detailing T’s condition and the treatment required or a brief medical certificate. The father also requires to be provided with a duplicate prescription, so that he can obtain any medication required for T and so that he can keep stores of the medication at his home.
This issue seems to demonstrate, in stark relief, the degree of difficulty that the parties have in communicating with one another. I would have though that if there was any issue about which the parties could communicate, it would be in regards to the fundamental one, of T’s health and physical well being. I am not aware whether or not medical practitioners are prepared to write duplicate prescriptions. It seems to me to be unduly onerous for the mother to have to obtain written information in respect of every conceivable medical condition suffered by T. I believe that her proposal that this information be conveyed in a communication book is sufficient. The mother is prepared to authorise T’s doctors to inform the father in respect of all matters pertaining to T’s health from time to time. In my view this is sufficient. If the father has any queries, he is free to talk to the doctor concerned. Similarly, I believe that it is unduly oppressive to require the mother to get two prescriptions whenever T is prescribed any medication. The necessary medication can pass backwards and forwards between the parties or, if necessary, the father can obtain his own prescription at his own expense. This seems to be particularly applicable to medication that T requires to deal with his ling standing medical problems, such as his possible allergic reactions, rather than conditions which are likely to be transitory, such as infections.
d) Christmas
The question of Christmas is a vexed one. I accept that Christmas is an important celebration for the vast majority of members of Australian society, particularly the parents of small children. It is only natural that separated parents and the members of their respective families, would want to spend, at least a part of the most significant festive day of the year, with the child or children they hold dear. It follows from that in order to satisfy the competing ambitions of the parties in this matter, inevitably one or both of them, will be disappointed by the orders that are made. It will be necessary for each of them to accept that some compromise must be made, on both of their parts, in respect of Christmas. It is simply not possible for me to make orders that will satisfy both of them.
The mother’s position can be simply put. She is a family orientated person and has a large and close-knit family, most of whom live in the A area. Approximately 40 members of her family gather for Christmas lunch each year and she, her husband and T attend this lunch. On Christmas Night, it is her custom to attend her husband’s family for their Christmas celebration. These have been the arrangements that T has known for all of his life to date. He has never spent an entire Christmas Day away from her. The orders the mother proposes will allow T to spend at least part of Christmas Day with her and attend some part of her family’s Christmas lunch, which is clearly very important to her.
The father’s position is that it is equally important that T have an opportunity to engage in Christmas festivities with members of his family, particularly his parents. The significant members of the father’s family live in Victoria, his parents in G and his brothers and sisters in M. Clearly, if T is to attend any B Family festivities on Christmas Day, it will be necessary for him to travel interstate and inevitably this will mean that he will not be able to attend the Place Family Christmas lunch in its entirety. The father argues that it is common practice, when parties are engaged in a relationship, for them to alternate which of the partner’s families’ Christmas celebrations they attend as a couple, particularly if interstate travel is involved. I am not convinced that, generally speaking, there is such a custom.
The positions adopted by both parties have merit and it is regrettable, in the extreme, that I must choose between the proposals. Once again, I must examine the issue from T’s perspective. I have no evidence as to what his wishes are in the matter. On the one hand there is much to be said for the mother’s position that it would be unduly disruptive for T to miss the opportunity to take part in the type of Christmas celebrations he has known for all of his life. On the other hand, it is also important that T feels he is a part of his father’s family and has an opportunity to see them at Christmas.
Although I accept that Christmas is especially important to the mother, on balance, I have decided that it is likely to be in T’s long term best interests to form closer relationships with his paternal family. This will be facilitated by him spending alternating Christmas Days with his father and his mother. I propose a strict division of the Christmas school holiday periods, which will result in T spending the entire Christmas period with each of his parents, in alternating years. A corollary of this obviously will be that T will spend the entire period of Christmas Day with one or other of his parents, without the necessity for the day being split, as the mother proposes. In order to prepare T for this change, it is my view that the mother should have T for the first half of the forthcoming Christmas school holiday period.
e) The extension of contact
Both parties propose an extension of weekend contact. However, the father’s proposal is far more extensive than the mother’s, as it envisages him having contact with T on an additional school night during the remainder of 2003 and a further night in 2004. He indicated in his evidence that in the long run, as T grows older, it is appropriate that the parties should share the responsibility for caring for T on an equal basis.
The mother proposes that contact should begin and end with school hours each weekend. The advantage of this proposal, from her point of view, is that it would not involve any direct interaction between her and the father. This proposal has much to recommend it, as it would not expose T to any direct conflict between his parents.
The father’s reasons for seeking the extension of contact are simply put and understandable. He would like to spend more time with T. The application is made because of the opportunity presented by these proceedings. Given the hostilities between the parties and the comparatively long-standing duration of the current arrangement, I do not believe that it is warranted to depart from it at this juncture.
The closer to equality in time that any given child spends in the care of each parent, the greater is the need for mutual trust between the parents concerned and the greater is the need for the parties to communicate and cooperate with one another. The parties in this case do not seem to share compatible parenting values and have great difficulty trusting and communicating with one another. This seems to militate against an increase in contact at this stage to one which is closer to equality of time. In my view, at this time, such an arrangement will lead to more conflict between them, to T’s ultimate detriment.
f) Contact hand over
The father had not closely considered the implication of T moving backwards and forwards between the parties at his school. In his evidence he indicated that he had not “researched it” and, as a result, did “not have much of an opinion” about it. As a means of reducing tensions between the parties, the proposal does have much to recommend it.
The wife also suggested that a McDonald’s be used at other times. The father considered that this was “tacky”, but had no other alternative proposal.
Accordingly, in my view, it is appropriate to utilise T’s school, the McDonald’s Restaurant in West Terrace and, in the event that the father is living interstate for any period, the A Airport, as the locations for contact hand over.
g) The demarcation of holiday contact
The parties agree that T should spend half of each school holiday period with his father and that there is a pressing need for there to be a mechanism by which the parties will know, with clarity, which half it will be, for each school holiday period, each year. In the past, the parties, particularly the mother, have hoped for a flexible regime in respect of holiday contact. That has not been possible. It is now necessary that each of them know precisely where they stand, as far as contact is concerned, so that they may plan appropriately.
Although the father greets with some incredulity, the suggestion that he is pedantic, so far as the interpretation of orders is concerned, my impression is that there will be difficulties between the parties, unless the orders for holiday contact are set out with precision.
I accept that the mother’s proposals for the division of contact are equitable and do take into account the fact that in some years the Easter holiday is part of the first term holiday and in other years it is not.
I also propose to accede to her suggestion that the father have the second half of the third term holiday in each year. On balance, this is the regime most likely to enable T to be able to spend the father’s birthday with him. Whether it will necessarily include the Labour Day weekend I do not know. In my view, where public holidays fall is, to use a colloquialism, a matter of “swings and roundabouts”.
h) Psychological assessment
The parties agree that it is not appropriate that T be psychologically assessed without there being a joint agreement between them that such an assessment is necessary, after receiving proper medical advice.
Conclusions
This is a sad and perplexing case. The parties wish me to stipulate a specific code to regulate all their dealings with one another in respect of T. They want to end the litigation between them, once and for all.
I fear that I have neither the wit nor the foresight to compose orders that are incapable of being misinterpreted by one or other of them.
I am fearful that, in attempting to make the orders too comprehensive, I will unwittingly create more matters about which the parties may argue. Without wishing to appear trite or condescending, the solution to the end of disputation between the parties, is in their own hands.
The parties in this case have much to offer T. They both clearly love him very much and are devoted to ensuring that his best interests are achieved. The best means of ensuring that T does reach his full potential is that they cooperate and respect one another as parents and each acknowledge that the other has a role to play. T’s wishes have not been canvassed to any significant degree in these proceedings. However, I suspect that if he had been consulted, he would have indicated that he wishes the parties to end their disputation with one another. As the father reported in his affidavit, T has indicated to him that “Daddy, sometimes I feel that you and Mummy are pulling me apart”. A poignant plea indeed. The greatest protection for a child, whose parents have separated from one another, is the sense that the child has that he is free to express his love and loyalty for both his parents, without fear or favour.
Sadly, many of the practical difficulties that relate to contact have arisen as a result of mistrust and suspicion between the parties. For the reasons provided, I am satisfied that it is appropriate that the father keep the mother informed, to some extent of his arrangements for T’s care during contact. I have also endeavoured to make orders that I believe will best facilitate the relationship between T and his father.
I believe that both parties have the necessary capacity to provide for T’s emotional and intellectual needs, when T is with each of them.
Above all, I hope that these orders are expressed with sufficient clarity, particularly in regards to the provision of school holiday contact, so that it will not be necessary for the parties to return to Court in future to seek further orders. I accept that litigation is expensive both in financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I had indicated that the reasons for judgment in this matter would be handed down on 28 April 2003. Due to the intervention of Easter and Anzac Day, it was not possible for me to comply with this deadline. I offer my apologies to each of the parties for this delay.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Brown FM
Deputy Associate: C M White
Date: 1 May 2003
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