B and S
[2002] FMCAfam 165
•14 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & S | [2002] FMCAfam 165 |
| CHILDREN – Residence – contact – parties living interstate – effect of earlier consent order – family violence. Rice and Asplund (1979) FLC 90-725; |
| Applicant: | J E B |
| Respondent: | P S |
| File No: | ZD2329 of 2001 |
| Delivered on: | 14 June 2002 |
| Delivered at: | Darwin |
| Hearing Dates: | 5 & 6 June 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Goldflam |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondent: | Ms Budrikis |
| Solicitors for the Respondent: | Budrikis and McNamara |
ORDERS
(1)That all previous parenting orders in respect of the children
C W S born 21 October 1994, W J S born 1 July 1996, and C J S born 1 August 1991 be discharged.(2)That C W S and W J S reside with the husband.
(3)That the husband have sole responsibility for making decisions concerning the day to day care, welfare and development of
C W S and W J S.(4)That C J S reside with the wife.
(5)That the wife have sole responsibility for making decisions concerning the day to day care, welfare and development of
C J S.(6)That the parties have joint responsibility for making all long term decision about the care, welfare and development of C W S,
W J S and C J S.(7)That the wife have contact with C W S and W J S as follows:
(i)For the second half of the South Australia Christmas school holidays in 2002 and each alternate year thereafter;
(ii)For the first half of the South Australia Christmas school holidays in 2003 and in each alternate year thereafter;
(iii)For the mid-year break of the South Australia school year in 2003, and in each alternate year thereafter;
(iv)By telephone at all reasonable times, no later than 9.00pm at night but no less than once per week with the call to take place at 6.00pm on each Sunday and the husband to make the children available to receive a telephone call at this time;
(v)At any other times as may be agreed between the parties, provided the wife gives 28 days notice in writing of her intention to seek contact and agrees to bear all the costs associated with such contact and to collect and return the said children at the beginning and end of each contact period.
(8)That the husband have contact with C J S as follows:
(i)For the first half of the Northern Territory Christmas school holidays in 2002 and in each alternate year thereafter;
(ii)For the second half of the Northern Territory Christmas school holidays in 2003 and in each alternate year thereafter;
(iii)For the Northern Territory mid year school holidays in 2004 and in each alternate year thereafter;
(iv)By telephone at all reasonable times, no later than 9.00pm at night;
(v)At any other times as may be agreed between the parties provided the husband gives 28 days notice in writing of his intention to seek contact and agrees to bear all the costs associated with such contact and to collect and return the said child at the beginning and end of each contact period.
(9)For the purposes of the wife’s contact as set out in Order 7 (i), (ii) and (iii) hereof the wife is to collect the said children at the commencement of contact and bear all expenses relating to the transport of the children to her home in Alice Springs provided however if she purchases air travel for the children from Adelaide to Alice Springs the husband is to be responsible for delivering the children to the Adelaide Airport in order to board the necessary aircraft.
(10)For the purposes of the wife’s contact as set out in order 7(i), (ii) and (iii) hereof the husband is to collect the said children at the conclusion of contact and bear all expenses relating to the transport of the children to T from the wife’s home in Alice Springs provided however if he purchases air travel for the children from Alice Springs to Adelaide the wife is to be responsible for delivering the children to the Alice Springs Airport in order to board the necessary aircraft.
(11)In the event that the wife wishes to exercise contact pursuant to Order 7(i), (ii), (iii) or (v) she is to advise the husband in writing of this fact 28 days prior to the date proposed for such contact to commence, and in particular advise him of the exact date such contact will commence and conclude and in the case of the contact set out in Orders 7 (i), (ii) and (iii) how the children are to be collected and delivered for such contact at her expense and in the case of the contact set out in Order 7(v) how the children are to be collected, delivered to Alice Springs and returned to the husband’s home after such contact.
(12)Within 14 days of the husband receiving the written notice set out in order 11 hereof, the husband is to provide notice to the wife in writing of the means by which he will collect the children at the conclusion of contact as set out in Order 7(i), (ii) and (iii) hereof and the means by which they will be returned to his residence in South Australia at his expense.
(13)For the purposes of the husband’s contact as set out in Order 8 (i), (ii) and (iii) hereof the husband is to collect the said child at the commencement of contact and bear all expenses relating to the transport of the said child to his home in South Australia provided however if he purchases air travel for the child from Alice Springs to Adelaide the wife is to be responsible for delivering the child to the Alice Springs Airport in order to board the necessary aircraft and the husband is to be responsible for collecting the said child at the Adelaide Airport.
(14)For the purposes of the husband’s contact as set out in Order 8 (i), (ii) and (iii) hereof the wife is to collect the said child at the conclusion of contact and bear all expenses relating to the transport of the child to Alice Springs provided however if she purchases air travel for the child from Adelaide to Alice Springs the husband is to be responsible for delivering the child to the Adelaide Airport.
(15)In the event that the husband wish to exercise contact pursuant to Order 8 (i), (ii), (iii) or (v) he is to advise the wife in writing of this fact 28 days prior to the date proposed for such contact to commence, and in particular advise her of the exact date such contact will commence and conclude and in the case of the contact set out in Orders 8 (i), (ii) and (iii) how the child is to be collected and delivered for such contact at his expense and in the case of the contact set out in Order 8(v) how the child is to be collected, delivered to the husband’s home in South Australia and returned to the wife’s home in the Northern Territory after such contact.
(16)Within 14 days of the wife receiving the written notice set out in order 15 hereof, the wife is to provide notice to the husband in writing of the means by which she will collect the child at the conclusion of contact as set out in Order 8(i), (ii) and (iii) hereof and the means by which she will be returned to her residence in the Northern Territory at her expense.
(17)That the husband forthwith install a telephone with a land line capable of receiving incoming calls and maintain such telephone at his expense.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD2329 of 2001
| J E B |
Applicant
And
| P S |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to competing parenting applications in respect of three children C J S (“C”) born 1 August, 1991 and currently 10 years and 10 months of age; C W S (“C”) born 21 October, 1994 and currently 7 years and 7 months of age and W J S (“B”) born 1 July, 1996 and currently 5 years and 11 months of age.
The parties to the proceedings are the applicant, J E B (“the wife”). She is the mother of each of the children. The respondent to the proceedings is P S (“the husband”). He is the father of C and B but not of C. C’s father is D R W. Mr W is not a party to these proceedings.
An order was made by the Family Court at Adelaide on 26 August, 1992 granting guardianship and custody of C to the wife and allowing Mr W to have access to the child as the parties might from time to time agree. A further order was made by the Family Court at Adelaide on
7 December, 1993 the effect of which was to suspend any contact between Mr W and C. It seems that since that time there has been little, if any contact between C and her natural father.
The parties began to live together in November of 1993 when C was just over two years of age. As a result, it is common ground between the parties that she formed a relationship with the husband, whom she regards as at the very least, a father figure.
The husband and wife married at Adelaide on the 4th of March, 1994. The marriage between them was dissolved on 10 June, 2000.
There have been previous orders made by the Family Court at Darwin in respect of arrangements for the care of the children. The parties finally stopped living together in Alice Springs in May of 1999, although there is some dispute between them as to when they separated or whether in fact they were living separately and apart in the same premises prior to May of 1999. On 2 July, 1999 the wife began proceedings in the Family Court at Darwin seeking residence orders in respect of C and B. On 12 July, 1999 the husband responded seeking residence orders in respect of all three children.
These applications came on for interim hearing before the Family Court at Darwin on 22 July, 1999 on which occasion the parties apparently agreed as to what the future arrangements for all the children should be. By this time C and B were living with the husband in E in South Australia and C was living with the wife in Alice Springs in the Northern Territory. Essentially the parties agreed that this situation should continue on a final basis with C and B continuing to live with the husband in South Australia and C continuing to live with the wife in Alice Springs. The parties also agreed that each of them should have contact to the children or child not in their care during the school holidays and for the children to have contact with one another at the same time.
The consent orders that were made on 22 July, 1999 were in the following terms:
1)“That the children C W S born 21 October 1994 and W J S born 1 July 1996 reside with the Husband.
2)That the Husband have sole responsibility for making decisions concerning the day to day care, welfare and development of
C W S and W J S.3)That the child C J S born 1 August 1991 reside with the Wife.
4)That the Wife have sole responsibility for making decisions concerning the day to day care, welfare and development of
C J S.5)That the parties have joint responsibility for making long term decisions about the care, welfare and development of C W S,
W J S and C J S.6)That the Wife have contact with C W S and W J S as follows:
a)Between 17 and 24 August 1999 (inclusive);
b)For one half of the school holidays in each year (being the school holiday periods in the State or Territory where
C W S and W J S reside) with the Wife to have the children:(i) For the first half of the Christmas school holidays in 1999 and in each alternate year thereafter;
(ii) For the second half of the Christmas school holidays in 2000 and in each alternate year thereafter;
(iii) For the mid-semester holidays in the second semester of the school year in 2000 and in each alternate year thereafter;
(iv) For the Easter school holidays in 2001 and in each alternate year thereafter; and
(v) With the balance of the Wife’s contact to be taken during the mid-year break in each year if possible;
c)On the birthdays of C W S, W J S and of the Wife at such times as may be agreed;
d)By telephone at all reasonable times, no later than 9.00pm at night; and
e)At all other times as may be agreed between the parties.
7)That the Husband have contact with the child C J S as follows:
a)For one half of the school holiday periods in each year (being the school holiday periods in the State or Territory where C J S resides), with the Husband to have the child:
(i)For the second half of the Christmas school holidays in 1999 and in each alternate year thereafter;
(ii)For the first half of the Christmas school holidays in 2000 and in each alternate year thereafter;
(iii)For the Easter school holidays in 2000 and in each alternate year thereafter;
(iv)For the mid-semester holidays in the second semester of the school year in 1999 and in each alternate year thereafter; and
(v)With the balance of the Husband’s contact to be taken during the mid-year break in each year if possible.
(b)By telephone at all reasonable times, not later than 9.00pm at night; and
(c)At all other times as may be agreed between the parties.
8)That the cost of the children’s travel for contact shall be shared equally between the parties.”
It seems that there have been grave difficulties with these orders, particularly from the wife’s point of view, since they were made, now nearly three years ago. In particular, it is the wife’s position that her contact with C and B has been sporadic and problematic. She alleges that the husband is a manipulative and emotionally controlling personality, who has set out to consciously undermine her relationship with C and B. It is her position that she consented to the orders of
22 July 1999 because she was fearful of the husband and not emotionally resilient enough to stand up to him in Court proceedings. In essence, she says that the Court orders of 22 July 1999 came about through the husband’s duress of her and should not be allowed to stand. She says that she agreed to the splitting of the children from one another because at the time she was fearful of the prospect of losing C to the husband and in her circumstances to consent to the orders seemed to be the best course for her to take.
The husband denies that the orders came about through any pressure, either actual or implied, imposed by him on the wife. The wife is the applicant in the current proceedings. By way of her form 3 application filed on 3 July, 2001 she seeks the following orders on a final basis:
1)“That Orders 1, 2 and 6 made by Registrar Brown of the Family Court of Australia in these proceedings DN 434 of 1999 on 22 July 1999 be discharged.
2)That the children of the marriage C W S (born 21/10/1994) and W J S (born 01/07/1996) reside with the Wife.
3)That the Wife have sole responsibility for making decisions concerning the day to day care, welfare and development of the said children C W S and W J S.
4)That the Husband have contact with the said children C W S and W J S as follows:
a)For one half of the school holiday periods in each year (being the school holiday periods in the State or Territory where the said children of the marriage reside) with the Husband to have the said children of the marriage;
(i)For the second half of the Christmas school holidays in 2001 and in each alternate year thereafter;
(ii)For the first half of the Christmas school holidays in 2002 and in each alternate year thereafter;
(iii)For the Easter school holidays in 2002 and in each alternate year thereafter;
(iv)For the mid semester holidays in the second semester of the school year in 2001 and in each alternate year thereafter;
(v)With the balance of the Husband’s contact to be taken during the mid year break in each year of possible.
(b)By telephone at all reasonable times, not later than 9:00pm at night;
(c)At all other times as may be agreed between the parties.
5)For the purpose of exercising contact in accordance with Order 4 hereof and with Order 7 made in these proceedings DN 434 of 1999 by Registrar Brown of the Family Court of Australia on
22 July 1999:a)The husband make the arrangements for the pay the cost of travel for the purpose of initiating contact at the commencement of each period of contact;
b)The Wife make the arrangements for and pay the cost of travel for the purpose of terminating contact at the conclusion of each contact period.”
By way of his form 3A response filed on 21 September 2001 the husband seeks the following orders:
1)“That all the orders made by Registrar Brown of the Family Court of Australia in proceedings DN434 dated 22 July 1999, except orders 3, 4 and 7 remain in force.
2)That orders 3, 4 and 7 made by Registrar Brown of the Family Court of Australia in proceedings DN434 dated 22 July 1999 be discharged.
3)That C J S born 1 August 1991 reside with the husband and he have sole responsibility with respect to her day to day care welfare and development.
4)That the wife have contact with C J S in the same terms as order 6 of the orders made by Registrar Brown of the Family Court of Australia in proceedings DN434 dated 22 July 1999.”
However, at the outset of the proceedings before me on 5 June 2002, the husband abandoned his application for the residence of C. He essentially seeks the current situation should remain with C and B continuing to live with him and C continuing to live with the wife with some modification to make contact proceed more smoothly. The wife seeks that all three children should live with her.
It is the resolution of this issue, whether there should be a change to the long-standing arrangement in respect of the care of the children and a discharge of the consent orders of 22 July 1999 or whether the current situation whereby the children are separated from one another should be allowed to continue, that is currently before the Court.
The preliminary issue
The question of whether or not there should be a change of residence for C and B and so a discharge of the consent order of 22 July 1999 raised the issue as to whether it was appropriate for the Court to entertain the wife’s application in the first place, given the existence of this order and the well known principal that the Court will not readily re-open parenting orders previously made unless there be good reason to do so.
The leading authority in the matter is in Rice and Asplund (1979) FLC 90–725 where at 78,905 Evatt CJ said as follows:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (1996) FLC 90-140 at page 75,680). These are not necessarily matter for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”
In my view, the present case was not one that was such that the question of whether or not there had been a change of circumstances could be determined as a preliminary and discrete matter without the hearing of all the evidence concerned. I determined to take the course approved by the Full Court of the Family Court in Bennett and Bennett (1991) FLC 92-191 and determine the threshold issue as to whether or not there had been a change of circumstance in the case after hearing all the evidence in respect of all of the substantive issues raised by the parties. In my view, this was a case where it was not possible to consider this threshold issue without going into the full merits of the matter. Although, obviously the long-standing nature of the arrangements for the care of the children concerned is an important matter.
Background
The wife was born on 6 October 1971 and is currently 30 years of age. She has re-partnered and is currently living with her defacto husband
A P at a property situated on the outskirts of Alice Springs. On the property they run a plant nursery business. The wife and Mr P have known each other for about three and a half years and have been involved in a serious and committed relationship for the past two years. The wife recently gave birth to her and Mr P’s first child, J on
4 October, 2001.
Mr P has three children from an earlier relationship, namely R aged 16, K aged 14 and D aged 12. These children live with their mother in Melbourne but regularly visit Alice Springs. Mr P has lived in Alice Springs for the past 22 years and for most of that time has been involved in the plant nursery business.
C has lived solely with her mother since July of 1999. At present she lives with her mother, Mr P and now J in a three-bedroom house which is situated on the nursery property. There is nothing in the evidence to indicate anything other than that she is a healthy child who has no special needs.
As has already been indicated, the husband is not C’s natural father. It is common ground between the parties that the relationship between the wife and C’s father was one characterised by extreme violence and intimidation by Mr W of Ms B. It is to the husband’s credit that he had the courage to stand up to Mr W and bring an end to Mr W’s intimidation of Ms B.
The husband was born on 8 May 1960 and is currently 42 years of age. He is currently living with C and B in a rented farmhouse on 30 acres of land in T, South Australia. T is a hamlet of seven houses approximately 30 kilometres from L in the Riverland area of South Australia. L is itself 300 kilometres from Adelaide and is a well serviced town. The husband has lived with C and B at T since early 2000, although the boys have been in his sole care since May of 1999. Both C and B attend primary school in L. Again there is nothing in the evidence to indicate other than that both boys are in good health and have no special needs, although C is apparently very physically large for his age and has the physique of a child three years older than he is.
The husband has two adult children aged 18 and 20 from an earlier relationship. These children live with their mother in Adelaide.
By occupation the husband is a tiler, although at present he receives a supporting parent pension of $740.00 per fortnight. The husband was involved in a relationship with Y T for about two years. She lived with the husband and the boys at T during this time. However the relationship between the husband and Ms T has now concluded.
Both the husband and wife have family who live in Adelaide. In the husband’s case his parents and four sisters and two brothers live in E. In the wife’s case her parents live in Salisbury Heights. Ms T also now lives in Adelaide and from time to time the husband visits her with the boys. It seems that over the two years she lived with them, C and B became close to Ms T.
Evidence
The wife relied on the following affidavits filed on her behalf:
1)An affidavit of herself filed on 10 May 2002;
2)An affidavit of A Cleland P filed on 10 May 2002;
3)An affidavit of her father Stewart B filed on 5 June 2002.
In addition she made reference to early affidavits sworn by herself in connection with the Family Court proceedings of July, 1999.
The husband relied on the following affidavits filed on his behalf:
1)An affidavit of himself filed on 30 May 2002;
2)An affidavit of Y T filed on 31 May 2002.
The parties were each represented by counsel at the hearing before me on 5 and 6 June 2002 in Alice Springs. Each party gave viva voce evidence in support of their respective cases and each was cross-examined by counsel for the other party. In addition Mr P, Mr B and Ms T were required to attend Court for cross-examination. In Mr B’s and Ms T’s case this occurred by a means of a telephone link from South Australia.
In addition the Court had the benefit of a family report which had been prepared by a Family Court Counsellor, Stephen Ralph. Mr Ralph was required to attend Court for cross-examination and did so by means of a video link from Darwin where he is based. He was cross-examined by counsel for both parties.
The wife was softly spoken and gave her evidence in a tense and anxious manner. She answered questions briefly and without elaboration. It was clear from her demeanour that she has a poor view of the husband as both a parent and a person. Her antipathy towards him was deep and obvious. The only positive thing of note that she was able to say of him was that C and B have a good relationship with him. This was said somewhat begrudgingly in cross-examination and was immediately qualified when she said shortly afterwards that the boys had to be “bribed” to return to their father at the end of two recent contact periods at Christmas 2001 and Easter of this year by the presence in his car of a puppy and an electric guitar respectively. The implication of this being that the children would not normally have been happy to be reunited with their father and would have preferred to have stayed with her. I formed the impression that the wife has no idea of the reality or content of C and B’s daily life in T. As a result, she is highly suspicious of it and the husband’s role in caring for the children in T. This is hardly surprising given that the relationship between the parties is one characterised by an inability to communicate easily and a high level of mutual antipathy, difficulties that have been compounded by the distance between their two homes and the expense involved in travelling between them. The wife’s evidence was coloured by a deep resentment that C and B are living with their father as a result of the consent order of July of 1999. In my view the wife’s antipathy towards the husband was markedly greater than that of the husband towards the wife.
On the other hand, the husband appeared comfortable and relaxed whilst giving his evidence. He was at pains to portray himself as an affable and reasonable person who had endeavoured to do his best for the boys and the wife in difficult circumstances. His position was that although contact had been plagued with difficulty, these difficulties were not of his making and indeed that he had made some magnanimous sacrifices in order to ensure that the contact that had in fact taken place did take place. In this regard I found his evidence glib and simplistic and too a large extent self-serving. Certainly, he is not the beneficent character he portrays himself as being. At best he struck me as a somewhat feckless person, certainly not a person who would easily be able to see the impact of his actions on others, particularly the wife or one with an ability to plan in detail for the future and take into account the feelings of others. In particular, his attitude to contact seems in the past to be “near enough is good enough”. He has no proposals to improve the current poor level of communication between the parties. The wife, for her part, is frankly disinterested in any potential for improvement in communication. The husband’s laissez faire attitude to contact and the wife’s resentment of the current situation ensured that these proceedings were bitterly and hard fought with neither party offering any concession to the other.
Both parties were at pains to portray the other as unreasonable and to present himself or herself in the best possible light. As a result I formed the view that each of them was more than capable of bending the truth when it suited them or of outright misrepresentation of the truth to advance their respective causes. Accordingly, I did not entirely believe either of them in all of their evidence. This was a case where particularly the wife raised serious allegations against the husband regarding his character, disposition and fitness to be a parent without any independent evidence to support her allegations other than her assertion of the truth of them.
However, I have no reason to doubt in any way the depth of love of each of the parties for the children concerned. They are both devoted and caring parents.
In particular, she alleges that the husband was violent towards her during the marriage and raped her after it. It is also her position that the husband has a manipulative and controlling personality and is determined to sabotage her relationship with C and B. She alleges that the husband has interrupted the contact with the children and threatened her and Mr P. It was because of her fears of him and the strength of his personality that she agreed, under duress, to the consent orders of 22 July 1999. Since these orders were made, she alleges that the husband has deliberately isolated himself with C and B in T in order to make her contact with them as difficult as possible. As such, it is her position that the husband is unfitted to have any large input into the care of C and B and their best interest dictate that there should be a change of residence. Such a change will also ensure that C and B are able to develop their relationship with their half-sister C.
The husband denies any manipulation on his part in respect of the making of the consent orders in July of 1999. He concedes that he indicated to the wife that any proceedings in 1999 would be hard fought from his point of view and would involve all of the children, including C. He asserts that there was nothing unusual or untoward in this. He denies raping the wife. He denies having a negative attitude towards the wife or of either actively or tacitly seeking to undermine the relationship between C and B and their mother. On the contrary, it is his contention that the wife is not supportive of his relationship with C, a child he regards as his daughter. It is the husband’s position that although it is unfortunate that the residence of C on the one hand and C and B on the other is now split that this situation is now long-standing and there is no compelling reason to change this state of affairs.
The issues
To summarise, the relevant issues in the matter seem to be as follows:
·Are there sufficient changed circumstances to warrant a change in the current arrangements in respect of the care of C and B;
·If so, what are the potential consequences for C and B of changing a long standing status quo in respect of arrangements for their care;
·What are the consequences for the three children of the long-standing and bitter dispute between the parties regarding arrangements for their care, particularly arrangements for contact;
·In respect of contact, regardless of what orders are made in respect of the children, how can orders be made to ensure that the children have regular rewarding contact with both their parents and between themselves given the parties current geographical and financial circumstances and the current high level of suspicion and mistrust between them;
·What, if any, are the expressed wishes of the children as to where they want to live and what weight should be given to those wishes;
·What finding, if any, can be made regarding family violence perpetrated by the husband on the wife and if finding can be made, what is the consequence of those findings.
I now turn to consider the evidence of each of the parties in respect of a number of matters that seem to be central to the determination of these issues.
(a) Events before and after separation
The wife asserts that the parties separated in November of 1997 but continued to live together under the same roof at a caravan park in Alice Springs. This was done for the sake of the children and to ensure that they could continue their relationship with both parents. The wife asserts that during their relationship the husband verbally abused her on a regular basis. He would also, from time to time, decamp with the children and threaten the wife that she would never see them again. These were threats that she took seriously.
It is common ground between the parties that the relationship between the wife and Mr W, the father of C, was one characterised by extreme violence and intimidation of the wife by Mr W. As a result, it was necessary for her to seek refuge in a number of women’s shelters throughout Australia and ultimately orders were made by the Family Court preventing contact between Mr W and C. The harassment of the wife by Mr W only stopped when in the wife’s words, the husband stood up to Mr W and protected her. It is central to the wife’s position that her experiences with Mr W left her demoralised and sceptical of the power of the legal process to protect her from intimidation and violence at the hands of men in a domestic setting. As such, she asserts that she was particularly vulnerable to what she says were the manipulative and bullying actions of the husband during the period they were living together at the caravan park in Alice Springs. It is in that context that her consent to the orders of July of 1999 should be examined.
It is the husband’s position that the relationship between the parties in Alice Springs was generally good until the wife began to work as a croupier at the Alice Springs Casino at the start of 1999 and as a consequence began working night shifts. As a result of the wife’s work it is the husband’s position that in the first few months of 1999 there were a number of disputes between them regarding what the husband saw as the wife putting her social life before her responsibilities to the children. These disputes culminated in a physical altercation between the parties in February or March of 1999.
This is the only incident of actual physical violence perpetrated by the husband on her that the wife alleges occurred during the marriage. The husband acknowledges the incident in his affidavit material, although the parties have very different views as to the extent of the force used by the husband in the incident. The husband says he grabbed the wife by the collar or the shoulders and pushed her onto a bed. The wife says the husband strangled her to such an extent that she thought she was going to die. Thereafter the husband left Alice Springs for Adelaide with the two boys, returning a week later. The incident was not reported to Police and did not result in the wife seeking medical treatment.
In my view, the husband has almost certainly underplayed the extent of his conduct and the force used by him in the incident. The incident does him no credit and was clearly a serious one. I believe the husband when he says he was shocked by his behaviour in the incident. Such shock is explicable only if the incident itself was of a serious and violent nature. However, the fact remains it is the only incident of actual physical violence of which the wife complains during the marriage.
There is no independent corroboration of the verbal denigration and intimidation of the wife by the husband as alleged by Ms B. This is not surprising given that such behaviour invariably happens in a domestic setting and in private. Just because there are no independent witnesses of it and the wife has not sought assistance from the police or the protection of a domestic violence order, does not necessarily mean that the behaviour complained of did not take place. However, I am loathe to accept the full force of the wife’s allegations, given the context in which such allegations first appeared, that is a bitterly contested interim residence hearing that was subsequently compromised.
It seems to me, that in its latter stages the relationship between the parties was a turbulent and unhappy one. Emotions compounded by disputes between the parties about the extent of the wife’s work and possibly about the beginning of her friendship with Mr P. It seems to me to be unlikely that the parties were living separately and apart under the one roof from November of 1997 as the wife would have it. It does not seem to me that the evidence reveals that the husband was as emotionally vindictive and manipulative as the wife would have him portrayed. Rather it seems to me that he responded with human weakness to the breakdown of his marriage.
In May of 1999 it was necessary for the wife to have surgery in Adelaide. The three children however remained with the husband in Alice Springs. Later the husband travelled to Adelaide with the children. C and B stayed with Mr S’s parents. C stayed with Ms B’s parents. The wife then returned to Alice Springs alone. It was around this time that it became apparent that the marriage between the parties was finally over. The husband did not want to return to Alice Springs. At this stage it cannot be doubted that there was a marked level of mistrust between the parties and a serious dispute between them as to what was likely to be in the best interests of the three children concerned. Unfortunately it seems that the stage was set for a bitter and protracted dispute concerning the residence of the three children.
In her affidavit material, the wife gives as her reasons for returning to Alice Springs alone the following matters. Firstly, she had property in Alice Springs that she wanted to sell. Secondly, she wished to return to her job as a croupier in Alice Springs so that she could improve her casino skills and ultimately obtain a job at the Adelaide Casino. Thirdly, C was reluctant to return to Alice Springs and wanted to spend time with her brothers. For those reasons she asserts she agreed to leave the three children temporarily with the husband in the hope that she would be able to reach agreement with him regarding their future care in time.
The evidence is clear that the wife anticipated that the husband would be strongly opposed to the children, particularly the two boys living away from him.
In early July of 1999, C was returned to live with the wife in Alice Springs. This came about in the following way. A request was apparently made of the husband that C visit her maternal grandparents and great-grandmother in Whyalla. The husband complied with the request. However, without first obtaining his consent, Mr and Mrs B arranged for C to be flown to Alice Springs. This was apparently at the wife’s request and flew in the face of the agreement that C would temporarily live with the husband and C and B in Adelaide. There can be no doubt that this was an arrangement that was unilaterally imposed on the husband by the wife.
The exact nature of how this arrangement came about was omitted from the wife’s affidavit in support of her application for interim orders filed on 2 July 1999. This application sought orders in respect of C and B only. The husband responded with an application that sought the residence of all three children. Such an application was, in my view, on its face reasonable given the circumstances in which C had left his care and the basis on which the three children had been initially placed in his care following the separation of the parties in May. At this stage each of the parties was also making serious allegations regarding the fitness of the other to parent the children concerned.
In those circumstances, it does not seem to me to be far-fetched that the wife would seek to adopt a pragmatic approach to the resolution of the competing interim and final parenting applications in July of 1999. No doubt she was worn down by the dispute between the parties and all the stresses entailed in that, but to say that she compromised the action solely because of her fear of the husband and her lack of faith in the legal system is, to my mind, drawing a long bow indeed. I prefer to believe that the consent order of July 1999 came about as a result of each of the parties deciding to settle the proceedings on what they thought was a practical basis from each of their points of view and in order to avoid an outcome that would ultimately prove to be unpalatable to one of them. Although in so doing, they may perhaps be criticised for putting their own needs before those of the children. However, I do not believe that the consent orders came about as a result of the wife being put under any duress from the husband in the sense that is commonly understood by that word. Such a finding further weakens the wife’s contention that the husband is an emotionally manipulative person, who is unsuited to have a large amount of input into the care of the children concerned. At least in May and July of 1999 it can be inferred from her behaviour that she was satisfied, if not enthusiastic, that the husband was capable of meeting the needs of C and B.
(b) The wife’s allegation of sexual assault
The wife visited Adelaide in August of 1999 to see C and B. She was invited into the husband’s home to put the boys to bed. Thereafter she alleges that the husband had sexual intercourse with her against her will. The husband denies this and says he had consensual sexual intercourse with her. The wife told Mr P of this incident but did not tell her parents with whom she was staying at the time. Mr P advised her to inform the police.
The wife deposes that she contacted the police sexual assault unit and that a policewoman from the unit came to visit her at her parents’ home. Mr B does not recall this visit. Thereafter the wife’s evidence is unclear as to what form her complaint took and in particular how it was documented by the police. Initially, in her evidence, she said that she made a statement and signed “something”. Then she indicated that perhaps she “discussed” the incident with police. Certainly the only documentary evidence provided to this Court in support of the complaint is a small printed form on which is written the following:
“Your police contact number: please keep this information – it will enable you to make direct contact with the police handling the matter you reported on. For any inquiry please contact: E.”
A telephone number is then indicated and a report number together with a name, rank and number of a police officer and the date of
16 August 1999.
The wife says that she did not wish to proceed with a formal complaint in respect of the matter because she could not face the ordeal of a committal hearing and trial in Adelaide. In her evidence she said that her motivation for going to police was so that the incident could be noted for her family if anything subsequently happened to her. The husband was not interviewed in respect of the matter.
If the incident is true, it is of course a very serious matter and has grave implications as far as the appropriateness of the husband to be a parent and role model for two male children. Isolated allegations of this nature are often difficult to prove and rarely involve direct eyewitness corroboration. It is not surprising that the wife elected not to proceed with her complaint in these circumstances. However, in the context of these proceedings, the nature of the evidence is such that it is in my view not possible for the Court, on the balance of the evidence available, to make a concluded finding either way as to which of the parties is to be believed in respect of the incident.
(c) The history of contact since July 1999
The orders of 22 July 1999 envisaged that the wife would have contact to C and B for one week between 17 and 24 August 1999 and thereafter for half of each school holiday period expressed as follows: for alternating halves of the long school holidays at Christmas; for the mid-semester break in 2000 and each alternate year thereafter; for the Easter holiday in 2001 and each alternate year thereafter and with the balance of contact to be taken during the mid-year break if possible. The cost of the contact was to be shared between the parties. The wife was also to have contact by telephone to C and B at all reasonable times. No specific times were expressed in respect of telephone contact nor was the frequency of the telephone contact expressed.
Pursuant to the same orders the husband was to have contact with C at the times during the school holidays when C and B were with him. Once again the costs of this contact was to be shared between the parties. Accordingly, the orders envisaged both C and B on the one hand and C on the other hand travelling backwards and forwards over the 1500 kilometres between Adelaide and Alice Springs during each school holiday at the joint expense of the parties. As will be subsequently revealed, this is no light matter given the financial position of each of them. No specific mechanism for the transport of the children was provided in the orders, or as to how the costs of travel were to be calculated and then specifically divided between the parties. In my view, it is highly likely that at the outset the orders were overly ambitious and the parties had given no clear thoughts as to how they would work in practice. It is also likely that the wife considered that she would in time move to live in Adelaide and that these difficulties would as a consequence not arise. However, it seems that due to the development of her relationship with Mr P it was not possible for her to leave Alice Springs. In many ways therefore, in my view, there were bound to be practical difficulties associated with the contact. Difficulties that the parties would have trouble easily resolving given their mistrust of one another and their straitened financial circumstances.
In my view, both parties have been somewhat disingenuous in respect of their financial positions and their work history. However, having said that, I have no doubt that each of them, during the entire period from July of 1999 to the present, have not been in a strong financial position.
The husband is a tiler by occupation. He also has some skills as a builder and has got work in the past as a builder’s labourer. However, when C and B came to live with him, he began to claim a supporting parent benefit. Needless to say, as a result, his financial position has been tight. I consider it likely that he has worked from time to time on a casual basis especially when Ms T was living with him. It seems that he has done casual work in fruit packing sheds and in wineries in the vicinity of where he lives. However, there can be no doubting that it is necessary for him to budget carefully for every dollar that comes into his household. At the present time he receives a pension of $740.00 per fortnight. His rent is $120.00 per fortnight. Food costs him at least $300.00 per fortnight and electricity at least $30.00 per fortnight. He estimates the running costs of his car at $120.00 per fortnight. In those circumstances, I accept that he has little, if any, spare cash. The wife has never paid him any child support for C or B nor has the husband paid any child support for C.
The wife began to work with Mr P in his nursery business when she and Mr P began to live together. Her evidence was that she receives no wages in respect of this work, however all her expenses and those of Mr P are drawn from the business. Mr P gave evidence that the business was prospering. However, I found the evidence of both the wife and Mr P somewhat unsatisfactory in respect of their current financial position. Mr P somewhat glibly stated that he never had any problems providing for contact visits for his own children and envisaged that this would be the case in future in respect of C and B if there was a change in residence arrangements.
As has already been outlined, it is essentially the wife’s position that the husband has failed to comply with the contact orders in order to sabotage the wife’s relationship with C and B. It is said that his response to the contact orders is evidence of his controlling and manipulative personality and reflects poorly on him and in particular in respect of his attitude towards the responsibilities of being a parent. The wife is critical of the husband’s decision to move to the isolated rural environment of T, which she sees as further evidence of his desire to frustrate contact. She is particularly critical of the husband in respect of his failure to facilitate telephone contact. Finally, it is her position that the husband is disinterested in maintaining his relationship with C.
It is the husband’s position that he has done the best that he can in respect of contact given his financial position since the orders of July 1999 were made and in particular in the absence of any child support from the wife for C and B.
The contact as envisaged in the consent orders of July 1999 took place in August of 1999. At Christmas of 1999 it is common ground that the husband drove C and B to Alice Springs for contact and the boys stayed with their mother and C for six weeks. The husband demanded payment of $125.00 from the wife to reimburse him for his fuel. I accept the husband’s evidence that this represented approximately half of the costs of his travel expenses.
Thereafter in early 2000 the husband moved to T with C and B. I do not believe that there is anything sinister in this move. I accept the husband’s evidence that his move to a rural setting and his renting of a farmhouse on a large piece of land represented the fulfilment of a long held ambition. Certainly, I do not believe that he moved to this rural community to isolate the children from the wife. In many ways the move represented a financial advantage for him as his rent was apparently cheaper in T than it would have been in suburban Adelaide.
The husband had contact with C, and C with C and B at Easter of 2000. The wife paid the costs associated with this contact. There was no contact in July of 2000. Contact took place in September of 2000 at the expense of the wife as she came to Adelaide to collect C and B. However, the husband collected the children at the conclusion of the contact. Further contact took place at Christmas of 2000. The wife delivered C to the husband for a few days contact prior to Christmas. She then returned to Alice Springs with all three children at her expense. The parties then arranged to meet half-way between Adelaide and Alice Springs for the husband to collect C and B at the conclusion of the contact. Accordingly, they shared the expense of the return of the boys.
There is a considerable amount of dispute between the parties as to the precise details of all the contact that has been outlined above. However, two things seem to me to be apparent from that history. Firstly, that although there were difficulties in arranging the contact from both a financial and logistical point of view there was a substantial amount of contact between the parties and the children concerned. Secondly, each party blames the other for any difficulties associated with the contact. The husband is resentful that the wife has failed to pay him any child support and the wife is resentful that she has had to pay what she sees as a greater proportion of the contact costs.
However, after this period, the contact arrangements between the parties became more problematic. The wife became more suspicious of the husband and in particular in respect of his unwillingness to provide the exact location of his home in the L area or to facilitate regular telephone contact by means of a telephone located at his home. It was against this background that the wife consulted her solicitors.
The husband’s telephone at his home was disconnected in late January of 2001. The wife was concerned enough to ask the L Police to make inquiries as to the welfare of the children after this occurred. I can understand her concern at the interruption of telephone contact. The husband indicates that his phone was disconnected because he could not pay the bill due to his financial circumstances.
This situation seems to have worsened relations between the parties and thereafter things became increasingly strained. The wife was suspicious that the only way that C and B could have telephone contact was by means of a public telephone box located about 500 metres from the husband’s home and which necessitated the husband initiating the calls. The circumstances were far from convenient for making long calls in comfortable surrounds and depended on the husband having sufficient coins to feed the telephone. The wife was concerned at the possibility of emergencies arising concerning the children and her inability to be contacted readily. The wife kept a record of telephone calls which nonetheless shows that between 21 February 2001 and
14 December 2001 there were 36 incidents of telephone contact between the boys and their mother.
This is not entirely satisfactory but in my view falls far short of a concerted campaign to prevent contact, as alleged by the wife. The husband is, in my view, a somewhat unthinking person who does not easily consider how such a situation would have been interpreted by the wife. I do not believe there is anything particularly sinister in the fact that the husband’s telephone was disconnected. I consider it likely that he was in no hurry to have the phone reconnected because he wished to emphasis his tight financial circumstances to her. This may be petty and selfish but I do not believe it amounts to malice. It was, however, clearly not conducive to the development of a cooperative parenting relationship between the parties.
There were many other factors, unfortunately, that also contributed to a difficulty in the maintenance of civil relationships between the parties after the consent orders of July of 1999. Firstly, of course, there was the wife’s allegation that the husband had sexually assaulted her. The husband was told by the wife that she had spoken about the matter to the police. If the allegation was untrue, this could hardly have assisted in the maintenance of cordial relations between the parties. Secondly, the husband’s property at T was raided by police and as a result the husband received an on-the-spot fine in respect of the possession of some cannabis plants. The husband believed that the wife informed the police of this although this is a matter that she denies. Certainly, however the wife was aware of the incident and the husband knew this.
The wife began her relationship with Mr P at the beginning of 2000. Both he and the wife allege that the husband made threats towards Mr P in March, June and August of 2000. These threats were apparently conveyed to Mr P via the wife through telephone calls made by the husband to her. Mr P was not directly threatened. However, he took the threats seriously. No formal complaint was made to the police in respect of the threats. I consider it likely that such threats were made although the husband denies them. I suspect that the husband was probably resentful that the wife had commenced a new relationship. However, of more importance in my view is the fact that Mr P concedes that in the past twelve months there have been no fresh threats towards him and relations between him and the husband have been civil whenever they have come into contact with one another at contact hand-overs.
There was no contact between the wife and C and B at Easter of 2001 although the wife did come to Adelaide in connection with her business. I accept that the wife left the arrangements to the last minute, difficulties that were compounded by the husband not having a telephone connected at home and being difficult to contact. When the parties were able to communicate with one another, they were not able to reach an agreement as to where they would meet to exchange the children. Once again, each of them blames the other for this failure. In my view, it is once again indicative of the lack of a cooperative parenting relationship between them and an inability to plan together.
Once again there was no contact between the wife and C and B in July of 2001. The wife suggested that the boys could fly to Alice Springs. The husband refused to consider this as he was concerned that C and B would be fearful of flying alone.
The wife commenced these proceedings in July of 2001. Once again contact did not take place in September of 2001. The husband offered to deliver the children half way at C P. The wife declined, quite reasonably in my view, as she was in an advanced state of pregnancy at the time. However, it is another example of the failure of the parties to reach an agreement or to negotiate some arrangement on a flexible ad hoc basis.
Thereafter contact took place in Alice Springs at Christmas time 2001 in particular between 14 December 2001 and 6 January 2002, with the husband driving C and B to Alice Springs and staying in town whilst the boys stayed with their mother. The husband did not have a great deal of contact with C at this time. I accept the husband’s explanation that he did not wish to impinge on the time she had with her brothers. Contact also took place at Easter of 2002 with the husband once again driving C and B to Alice Springs for the contact and returning with them to South Australia at its conclusion.
I have my suspicions that the last two incidents of contact took place because these proceedings were imminent and the husband was anxious to appear more amenable to the Court in respect of the contact orders.
C and B have had some limited contact with their maternal grandparents in Adelaide. It has not been as regular or frequent as the husband makes out. I accept Mr B’s evidence that there was contact on three occasions in 2001 and once so far in 2002. However, the consent orders of July 1999 do not specifically envisage such contact on a formal basis.
Although contact between July 1999 and the present has been fraught with difficulties, it has taken place, although not with the regularity or smoothness that was hoped at the outset. There is no evidence that the failures of contact that have taken place have undermined the good relationship between the wife and C and B. But to my mind, of far greater importance is the absence of any evidence of a concerted campaign on the part of the husband to disparage the wife directly to C and B or actively undermine her relationship with them.
The husband may be feckless as far as his telephone is concerned but there has been telephone contact, albeit under far from perfect conditions. The husband may be resentful of the wife but there has been physical contact on a number of occasions and the parties have been able to overcome the considerable financial and practical difficulties that have stood in the way. Both parties may blame the other for the difficulties that have arisen but the fact remains that each of them has in the past contributed in one way or another to this physical contact taking place. This is not a case where there has been no contact for a long period or where in my view there has been a concerted campaign to alienate the children concerned from the non-residence parent. The husband may at times have been thoughtless but in my view his conduct has not amounted to more than that.
(d) The parties’ future plans
The wife and Mr P plan to remain in Alice Springs running their plant nursery business for the foreseeable future. Mr P has expressed a desire to move to Adelaide at sometime in the future. He has lived in Alice Springs for the past 22 years and would like a change at some stage in the future. The wife would readily leave Alice Springs with him. However, these plans are far from fruition and it is not practicable to sell the business at the present time as it is still being developed. Accordingly, the reality is that for the foreseeable future the wife will be living in Alice Springs and whatever orders are made will have to take into account that fact.
I was told that the nursery business is fairly successful. However, I was not provided with any details as to the wife’s or Mr P’s income. I was simply told that they draw all their expenses from the business. These could include the costs related to any contact visits in future. Similarly I was not provided with any details of the wife or Mr P’s living expenses.
The husband has no plans to move away from T. He apparently enjoys this rural lifestyle and believes that the close knit community provides some benefits for C and B. Both boys have now commenced primary school in L. In future both are apparently interested in joining the local football team. They are able to travel to and from school by bus although from time to time the husband does deliver and collect them in his car.
Due to the fact that both C and B are attending school the husband has plans to rejoin the workforce on a full-time basis. As previously indicated, the husband is a qualified tiler as a result of completing a five-year apprenticeship. However, before he can resume his trade as a tiler, it is necessary for him to pay registration and other fees to the relevant authorities in South Australia. These fees amount to approximately $1,000.00. At the present time the husband does not have access to such a sum, although he has inquired of a number of government agencies as to the possibility of borrowing this sum. He also deposed that at the present time he is not in a position to borrow this sum from his parents or other members of his family.
There is also the possibility of the husband getting building work other than tiling in the L area. I consider it the case that the husband has the capacity to work and as a result I would envisage that he will return to the workforce in the near future. This should relieve some of the financial difficulties that he has experienced lately.
Earlier this year, the husband had the telephone reconnected at his home. However, following the Easter contact visit, this phone was disconnected again. The explanation for this provided by the husband is that he was considerably out of pocket following the contact visits of Christmas 2001 and Easter of this year. His evidence is that it costs him approximately $600.00 in fuel with approximately $100.00 of incidental expenses to drive from L to Alice Springs and back. Given his current financial situation this is a considerable expense.
However, in future I believe that it should be possible for the husband to at least install a telephone that would allow incoming calls. The rent for such a telephone is approximately $18.00 per quarter.
The husband has no plans to move away from T and plans to stay there for the foreseeable future. He has no plans to resume his relationship with Ms T although they remain on amicable terms. Apart from logistic reasons related to time, distance and money there is no reason why C and B should not see their maternal grandparents in Adelaide. Mr B indicated in his evidence that he and the husband enjoy a civil relationship and although there was some mistrust between them, particularly around the time that C was returned to the wife in Alice Springs in 1999, there has been no overt hostility between them.
(e) The Family Report and the evidence of Mr Ralph
A family report was prepared to assist the Court in the disposition of this matter. The report was prepared by Stephen Ralph. Mr Ralph is a psychologist with approximately 20 years experience. He holds both a Bachelor and Masters degree in psychology. He has been employed as a Court Counsellor by the Family Court for approximately 13 years and during that time has prepared literally hundreds of family reports for this Court and the Family Court. I found him to be an impressive and well-qualified witness. I accept his evidence.
Mr Ralph interviewed the parties and C, C and B on 20 December, 2001. He also observed each of the children with their parents and later interviewed Mr P.
As a result of his interviews and his observations, Mr Ralph was of the opinion that the boys were happy and well adjusted. In his evidence he deposed that the boys seemed “fine” to him and when he observed them seemed to be “excited and happy” and to enjoy a close relationship with both their parents with whom they interacted well. Certainly, Mr Ralph noted nothing untoward in either C or B’s relationship with either of their parents. Further, he noted that they seemed to be very close to their father and had difficulty in separating from him.
As was appropriate, Mr Ralph explored with each of the children their wishes as to where they would like to live in future and with which of their parents. C struck him as a mature and confident child. She was emphatic in her wish to continue living in Alice Springs with her mother. Mr Ralph was not surprised at this and believed her wish should be respected.
C also expressed a wish to live with his mother, although his wish was associated with some ambivalence and concern at moving away from friends at T. Mr Ralph was of the opinion that this wish, which was made without elaboration, did not reflect a high level of conviction on C’s part and certainly did not reflect any understanding of the long-term implication of such a wish. C was positive in his descriptions to Mr Ralph of his father, mother and C, whom he described rather engagingly as “totally good”. He was clearly excited at being in Alice Springs after a fairly long absence.
B, the youngest child, struck Mr Ralph as being guarded and uncertain. He too spoke fondly of C. When asked specifically whether he would like to live in Alice Springs he apparently replied, “No … I can’t say.” However, when questioned further he said, “Tell the judge I like playing on the monkey bars…I would like to live in Alice Springs so that I could play with my sister.”
As a result of the context in which C and B had expressed these somewhat imprecise wishes, that is in the general excitement of the children being reunited and on holiday together in Alice Springs, Mr Ralph was of the view that these wishes as expressed by the boys did not warrant serious consideration.
Mr Ralph was of the view that both C and B were fairly robust in an emotional sense. Certainly he did not observe anything that caused him concern in respect of their respective emotional developments. It was his view that both children were developing appropriately, as was C. As a result, Mr Ralph was of the view that C and B enjoyed a secure attachment to their father and in spite of their emotional strength and the obvious love they held for their mother would probably have difficulty coping with a transition from their father’s care to the care of their mother. This was particularly so given the length of time, some two and a half years, that the boy’s had been in the sole care of their father. Mr Ralph was also concerned at the disruption that would be occasioned to them by them having to make new friends in a new school and also adapt to a different household. In moving to their mother’s household the boys would have to consolidate their still comparatively fresh relationship with Mr P and also adapt to the fact that their mother was closely involved with the care of their baby brother, J. Mr Ralph was of the view that C and B would feel some sadness and possibly also some guilt at a change of residence and he was concerned at the possible implications of this for the boys. Accordingly, in Mr Ralph’s opinion, the best interests of C and B dictated a maintenance of the current situation.
In a formal sense Mr Ralph expressed the following opinion in his written report dated the 3rd of January 2002:
“Since consent orders were filed in the Family Court in July 1999 the children in this family have had limited contact with their other parent. Although C and W have had fairly regular phone contact with their mother and elder sister they have had limited opportunities for physical contact. Similarly, C has had limited contact with Mr S and her brothers in their home environment. Both parents tend to attribute at least some of the blame for this state of affairs to the other parent. Ms B believes Mr S has no commitment to contact taking place whereas Mr S tends to view Ms B as unreasonable in her demands and as unable to be sufficiently organised in making arrangements for contact to occur.
Despite these difficulties C and W appear to have maintained a firm attachment to their mother and C and they clearly desire to spend time with them. For the past two and a half years the boys have been in the sole care of their father and they appear to have developed appropriately in his care. Neither parent expressed any notable concerns about the children’s current adjustment or progress. Mr S appears to enjoy a close, active involvement in the life of his children and they in turn appear to appreciate his input and the level of care he provides.
Ms B is clearly frustrated by her lack of contact with the boys and I believe that this is the primary factor motivating her wish to have the residence of the boys. Mr S, however, asserts that the difficulties with contact will be largely removed once he resumes full-time work. He states that this will improve his financial circumstances and his capacity to pay for the children’s travel to Alice Springs as well as allowing him to re-connect his telephone which will also promote contact. Ms B doubts that this will occur and is sceptical of Mr S’s commitment to facilitate contact in the future.
I believe both parents are committed to promoting the welfare of the children and that they are both capable of providing nurturance, stability and security for the boys. C and W (to a lesser extent) have expressed a wish to reside in Alice Springs though I believe the expression of this wish needs to be viewed in the context of the excitement and attention of a holiday in Alice Springs with their mother and family. C has also expressed a wish to continue residing with her mother in Alice Springs and I believe that due to her age, her relationship with her mother and the stability she has enjoyed that her wish should be respected by the Court.
If it is the decision of the Court that C and W reside with Ms B then the boys would be required to make the transition to her full-time care. I believe that both boys would have some difficulty in separating from their father. Although they enjoy a loving relationship with their mother I believe they enjoy a secure attachment to their father as a result of the consistent care they have experienced over the past two and a half years. Although they would undoubtedly be pleased to have more time with their mother and reside with C and participate in the raising of their half-brother, J, I suspect they would experience some difficulty in adapting to such a change. This would include a change of schools, the formation of new friendships, complying with their mother’s expectations in relation to discipline, sharing their mother’s attention with an infant child and consolidating their relationship with Mr P. In addition to this they would be likely to experience some difficulties in having contact with their father and feel sad, and possibly experience a sense of guilt, about their father being on his own. This difficulty could to some extent be minimised if Mr S were to relocate to Alice Springs.
If it is the decision of the Court that C and W continue to reside with Mr S, and that C reside with Ms B, then the status quo will have been maintained. I am of the opinion that such a decision would ultimately be in the children’s best interest. Such a decision, however, would need to address the issue of contact and ensure that contact occurred taking into consideration the practical and financial difficulties associated with promoting contact over such a distance.”
Mr Ralph concluded his report with an observation, with which I concur, that in order to improve the contact presently occurring between the parties and the children it was important that the parties each endeavour to communicate with one another more effectively. This would in Mr Ralph’s view be likely to lead to a more cooperative approach by the parties to the parenting of the children in future. He did not however, provide any practical means by which this could be achieved. However, it may be that if Mr S returns to work and as a result has more financial security that both telephone and physical contact will become easier just because of the easing of financial pressure. I certainly hope so. In this regard Mr Ralph noted that the husband was desirous of having a better relationship with the wife. There are some indications that the husband is sincere in these indications.
The 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 principals underlying this object are set out in section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for C, C and B.
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 a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755.
In my view, it is not necessary to determine whether or not there has been a change of circumstances in this case in order to decide whether to entertain the wife’s application. It is her position that there has been such a change of circumstances. However, in my view it is appropriate to assess each parties’ case and the evidence brought by each of them in respect of the children according to the various criteria provided by section 68F(2). These matters will necessarily include the various matters on which the wife relies in the sense set out in Rice and Asplund (supra) to establish changed circumstances, namely the fact that she is happily re-partnered; now has suitable accommodation for the children and her assertions in respect of the irregularity of contact in the past.
Section 68F(2) factors – determining the best interests of the children
(a) The children’s wishes
C, a child of nearly 11 years of age, has expressed clear and unequivocal wishes as to where and with whom she wishes to live. She wishes to remain living with her mother. Her wishes are hardly surprising given the length of time she has lived with her mother. To his great credit, the husband is not persisting with his application so far as C’s residence is concerned. Clearly, in these circumstances, C’s wishes should be respected. It is also clear from the circumstances of this case that she would like to spend more time with her younger brothers with whom she enjoys a close and loving relationship.
C and B’s wishes are more problematic. It is the wife’s position that both children have consistently expressed a wish to live with her in Alice Springs and that this wish has been expressed over the telephone to her from T. The husband says the two boys have told him they want to live with him and seem to be anxious to return to T at the conclusion of contact in Alice Springs.
Given the content of Mr Ralph’s report and the obvious tensions between the parties, it does not surprise me that C and B have been somewhat ambivalent in respect of the expression of their wishes as to where they want to live. I bear in mind their comparatively tender ages of seven and a half and almost six years respectively and the fact that they have a good relationship with both of their parents. As such, it is unlikely that either child has sufficient maturity to understand fully the implications of any wish they may express as to where they want to live. In those circumstances, I agree with Mr Ralph’s assessment that the wishes of C and B are not strongly determinative in this matter and in any event their wishes are clouded with uncertainty and ambiguity.
(b) The nature of the relationship between the children, their parents and other significant people
It is clear to me that each of the parties enjoys a close and loving relationship with all of the children. By necessity however, the nature of that relationship has changed since the parties finally separated in May of 1999. For a period of now over three years C and B have been in the sole care of the husband, whilst C has been in the sole care of the wife. Notwithstanding this separation, the children enjoy a warm affection for one another and as is evident from Mr Ralph’s report were excited and delighted to be with one another again at Christmas in 2001.
Similarly, both C and B are curious about their half-brother, J, and have been excited to meet him. This is only to be expected. Obviously, this relationship is till in its nascent form. However, it is important that everything be done to foster it and indeed the relationship between C and B on the one hand and C on the other. Children benefit from the opportunity of growing up with and being supported by their siblings. However, for the reasons that have already been outlined in some detail, C on the one hand and C and B on the other have been deprived of the opportunity to grow up together. As a result, the history of their care has been significantly different over the past three years.
I have no doubt that the most significant person in C and B’s lives at present is the husband. This is to be expected. He after all has attended to their daily needs for the past three years. He appeared to me to be a loving and caring father. I have no doubt that he wants the best for each of his children. Certainly, Mr Ralph observed nothing other than that C and B interacted with him in a spontaneous and playful manner. There is nothing to indicate that either of them is not progressing normally at school or is other than well settled in his care.
Similarly, the wife and Mr P are the most significant figures in C’s life. Once again, there is nothing to indicate that she is not progressing well in life and is not a much loved child. Mr Ralph noted in his report that C was well aware that the husband is not her biological father although she still refers to him as “dad”. However, Mr Ralph noted that C was somewhat distant in her interaction with the husband. Given the circumstances of C’s life I am not overly surprised at Mr Ralph’s observations. However, the fact remains that the husband is still an important figure in C’s life.
In spite of difficulties with contact and the effluxion of time since C and B have lived with her, both children continue to enjoy a close and loving relationship with their mother. It is to the husband’s credit that he recognises this. I accept that he stated to Mr Ralph that both boys missed their mother at times and had indeed expressed some wish to him to live with her. In spite of the negative view the wife has of the husband and her views of his attitude towards the boys having contact with her, I accept that the husband was genuine in his expressed wish to Mr Ralph that both C and B spend more time with their mother in future. There is no evidence before me that indicates that the strength of the boys attachment to their mother has diminished over the three years or so since the parties separated. During that time both C and B have spent the majority of time with their father. There is nothing to indicate that during that time he has attempted to influence the boys against their mother or alienate them from her. This is of course contrary to the view that has been expressed by the wife in these proceedings.
The nature of the relationship between C and B and Mr P is still developing. The husband remains suspicious of this relationship and in particular believes that Mr P has inappropriately disciplined B during a recent contact visit in Alice Springs. This was a matter apparently reported to him by the children. It is regretable that the husband seems to have accepted this report without checking it further with either the wife or Mr P. Both C and B seem to be energetic children who are not beyond manufacturing events for their own purposes. It is sad that this incident has further deepened the level of mistrust between the parties. Mr P denies behaving inappropriately towards either of the boys. He struck me as a somewhat guarded and laconic character. However, I have no reason to doubt that he is not a responsible and caring parent. I do not believe that he did improperly assault B as was reported to the husband.
However, the fact remains that if there was a change of residence, C and B would have to build on their relationship with Mr P. I do not think that it can be said at this stage that the relationship between Mr P and C and B is a fully developed one.
All of the children are fortunate to have both paternal and maternal grandparents and relatives who love them very much and care about their future. The bulk of these relatives live in Adelaide. In my view it is important that both C and B have the opportunity to have contact with both their paternal and maternal grandparents. This has proven to be difficult in the past due to the distance between T and Adelaide. Mr B was an impressive witness. He was clearly devoted to each of his grandchildren. He also seemed willing to offer the olive branch to the husband to make amends for any past disagreements between the two of them. I hope this is the case. In spite of the absence of specific orders, the husband has taken C and B to see Mr and Mrs B in Adelaide. These visits have been infrequent and have occurred at the last minute. But they have occurred. I prefer to think that the manner of the visits and their rushed nature is more a reflection of the lack of planning and thought for others in the husband’s life rather than any indication of a disregard for the wife’s family and their place in C and B’s lives. In any event the visits should be encouraged. There would seem to me to be no reason why Mr and Mrs B could not visit C and B in T if this be their wish. I take heart from the fact that Mr B reported that there had been no overt hostility between him and the husband in the past, notwithstanding the obvious difficulty surrounding C’s return to Alice Springs in 1999.
In a formal sense neither party seeks orders that there be contact between C and B and their paternal or maternal grandparents. However, these matters are clearly important to each of them.
(c) The likely effect of any change in the children’s circumstances
Neither party proposes any radical change in respect of C. However, if the mother is successful in her application it will necessitate a change of residence and school for both C and B. In my view, this will amount to a significant upheaval for both children.
The evidence is that both C and B are well settled into life at T. The wife is critical of T as a place for children to live. As I understand matters she has never been there herself or inspected the farmstead in which the husband lives with the children or seen the hamlet of T itself. However, she remains deeply suspicious as to what she sees as a solitary form of life that the husband has chosen to lead for himself and, as she sees it, impose on the children. The husband does not see it as such. Rather he sees himself as belonging to a closely knit rural community, with all the benefits that flow from knowing one’s neighbours and being able to rely on them for support in a crisis. He says, and I accept it to be true, that he has long aspired to live such a life. At any rate, there is no evidence to indicate that the children are deprived of any of the necessities of life by living in T and having to commute to school in L, about 30 kilometres away. There are some in our community who would regard such a country childhood as idyllic. For my part, I do not believe that there is anything implicitly sinister in the husband choosing to lead such a way of life.
However, regardless of the wife’s views, that fact remains that the children are well settled in this environment and there is no evidence to indicate that they have came to any harm in it. The wife proposes a radical change for C and B. The children would have to cope not only with a change of home and school but would have to adapt to a new father figure in their lives in the form of Mr P. All this in the context of their mother being necessarily preoccupied with her newborn child, a factor many children have difficulty in adapting to. Taken together, all these are factors that militate against a change of residence for C and B at this stage.
In addition, if the residence of C and B is changed at this stage it would be inevitable that they would have less contact with their father. In my view, this is a grave difficulty with the change of residence as proposed by the wife. I agree with Mr Ralph’s assessment that both children are likely to feel sad at such a change and possibly suffer some form of guilt reaction as they perceive their father being left on his own as a result of some action attributable to them. I accept Mr Ralph’s assessment that the children are likely to experience a significant level of difficulty in adapting to such a major change in their lives. Although I accept that both children are emotionally robust, this again militates against a change in arrangement in their care at this stage.
(d) The practical difficulties associated with contact
As has been outlined at some length, this is a case that has been bedevilled by difficulties in respect of contact. In my view, whatever orders are made in respect of where C and B are to live in future, these difficulties are likely to remain. These difficulties have come about for three major reasons. Firstly and most obviously, the parties live half a continent apart from one another. Sadly, this is a situation that is unlikely to change in the foreseeable future. Secondly, neither party is particularly well off financially. If the husband does rejoin the workforce, which is his stated wish and which is in my view likely, it is possible that this situation will be somewhat alleviated in future. Thirdly, the parties have been unable to communicate effectively with one another in order to make the necessary arrangements for contact to take place smoothly and without acrimony. Both parties blame the other for these difficulties. In my view each of them must bear some culpability for the difficulties. However, it does seem to me that the husband has been more obdurate in this regard than the wife has been. But, as I say, each of them must bear some blame for what has happened in the past. As a result, I remain unconvinced that if there was a change of residence in respect of C and B there would necessarily be a radical improvement in how contact would take place in future. The problems of geography and finance would remain and for a variety of reasons the level of the wife’s antipathy for the husband is deep and abiding. Certainly, I do not think the difficulties with contact of themselves necessitate a change in the residence arrangements for C and B. In this regard, I bear in mind that notwithstanding all the difficulties between the parties, contact has taken place as recently as Christmas 2001 and Easter of 2002. Although, in this regard, I do bear in mind the wife’s stricture that this contact has occurred very much under the shadow of these proceedings, when the husband was no doubt at pains to appear as amenable as possible to the existing orders.
The husband could do better in respect of contact. In this day and age, even in the face of financial difficulties, it is not unreasonable for the non-residence parent to expect that the other parent should have a telephone in his or her home. It appears to me that the husband should at least have a telephone in his home which is capable of receiving incoming calls.
Both parties propose that the party taking the contact should be responsible for collecting the children concerned at the outset of contact and that the other parent should collect the children at its conclusion. This seems to me to be an appropriate way of managing matters, rather than as on previous occasions when contact has proceeded on a hazardous and ad hoc manner at the last moment and such things as meeting half-way or travel monies being paid by one party to the other have been advanced late in the piece and led inevitably to more conflict.
The key of course to contact proceeding smoothly is a cooperative relationship between the parties and ready communication between them. The husband says he wishes to have such a relationship with the wife but has no proposal as to how it should come about. The wife is sceptical about any improvement in the parties’ relationship and, as a result, similarly has no suggestion as to how to bring about such a state of affairs. Without wanting to appear trite, the remedy is in the hands of the parties themselves. However, I would have thought that some practical means of advising the other specifically and in advance the exact date on which contact is to commence would be one such means. It is desirable that the obligations of each of the parties be expressed with as much clarity as possible and for the orders to be as free of misinterpretation as possible. It is, at law, the responsibility of each of the parties to facilitate and encourage the contact of the other parent to these children. Contact orders once made are expected to be adhered to and they are not some form of negotiable instrument.
Cost will always be an issue in respect of contact in this case. I accept the husband’s evidence that a round trip to Alice Springs by car costs about $600.00 in fuel. I was provided with no evidence relating to the cost of air travel other than the husband deposed that his own ticket to Alice Springs cost $440.00 return. However, as the children became older, it may be possible for them to travel more frequently by air and if flights are booked and paid for and details of them exchanged in advance for contact to proceed more smoothly in future in this manner. Ultimately, however, the ease of contact resides in the hands of the parties themselves.
(e) The capacity of each of the parents to meet the children’s needs
I have no doubt that each of these parties is capable of meeting each of C’s, C’s and B’s needs, including their emotional and intellectual needs. There is no evidence to indicate that any of the children is failing in school or is not having his or her physical needs met. The wife was somewhat critical of C’s size and there was the suggestion that he has become overweight whilst in his father’s care. I accept that he is a big child for his age and that there is nothing unduly to be concerned about either in his size or his weight. Mr Ralph described C as a “solid” young boy. Mr P said both C and B were healthy and active and liked running around.
The wife also expressed some concern about C and B’s use of swear words. However, this was a theme that was not developed in the evidence and I do not believe that it is a matter that should unduly concern me.
I accept that both C and B are currently happy and have a sense of being loved and wanted by both their parents. There is nothing to suggest that their emotional well being is in any jeopardy by them remaining in their present situation.
(f) The children’s maturity, sex background and other characteristics
In the circumstances of this case, this subsection does not have any particular application.
(g) The need to protect the children concerned from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
At the present time, as the evidence stands, there is no evidence to indicate that any of C, C or B need to be protected from any physical or psychological harm. To my mind, the evidence indicates that each is a much loved child by all who are involved with each of them.
The wife in her evidence has raised many concerns regarding the fitness of the husband to be a parent to the children concerned in this matter. The essence of her criticism of the husband is that he has both consciously and unconsciously sought to undermine her close and loving relationship with both C and B. On the other hand she alleges that the husband is essentially disinterested in pursuing any relationship with C. For reasons that have already been provided, I do not accept either of these allegations. There is no evidence to indicate that the actions of the husband have caused the children to love their mother any less. There is no evidence to indicate that anything the husband has done has alienated either C or B from their mother. At the core of the wife’s case is her submission that it is essential to the well-being of these children that there be a change of residence to foster her relationship with C and B. In this regard, I accept the evidence of Mr Ralph that both children enjoy a close and loving relationship with both their parents and that there is no evidence of either emotional or physical neglect in respect of their care.
(h) The attitude to the children and the responsibilities of parenthood
I am satisfied the each of the parties is committed to responsible parenting. I am satisfied both parents will ensure in future that each of C, C and B has access to everything that is required to promote their well-being in future.
(i) Family violence involving a child or a member of the child’s family
The wife has made serious allegations against the husband regarding his violent and abusive conduct towards her both before and after the marriage between them. The husband admits one such incidence of violence but downplays the level of its seriousness. He denies unlawfully sexually assaulting the wife on 18 August 1999. For reasons already provided, I am unable to make a positive finding of fact as to whether or not that incident did in fact take place as the wife alleges. The other assault of which the wife complains and which the husband admits was a serious matter. However it appears to have been an isolated incident in the sense that it is the only other case involving actual violence of which the wife complains. It also occurred in the context of the parties separating. In those circumstances, I am prepared to accept that, although the husband behaved badly he was responding to the breakdown of his marriage.
The wife also alleges that during the marriage the husband constantly denigrated and belittled her. She did not however call any corroborative evidence for this conduct on the husband’s part from any witness other than herself or indeed provide precise and detailed accounts of the behaviour of which she complained. The husband generally denies behaving in this fashion during the marriage. He says there were disputes between the parties in the latter stages of the marriage, but these came about as a result of the wife beginning to work night shift at the Alice Springs Casino.
The evil that is represented by violent conduct of the type complained of by the wife was described by the Full Court of the Family Court In the Marriage of J G and B G (1994) 18 Fam LR 255 and In the Marriage of Patsalou (1994) 18 Fam LR 426. Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil. The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict through the use of violence in the future. Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents. In this regard a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of any other person, especially the other of a child’s parents, is not a suitable role model for children.
In the present case I bear in mind that both C and B have lived with their father for the past three years. During the majority of that time the husband lived with Ms T. She gave evidence in the proceedings and indicated that she herself had not been the victim of any such family violence, although she did indicate that at times she had had some disputes with the husband, specifically on her birthday of last year. In these circumstances, I do not believe that the husband does currently constitute an unacceptable role model for the two boys concerned. Certainly, given the length of time that they have been living with the husband, I do not consider that the wife’s concerns are of sufficient weight to justify a change of residence for C and B on that basis alone.
(j) Whether it would be preferable to make the orders which would be least likely to lead to the institution of further proceedings in relation to the children
Parenting orders are never final in the sense that children’s and their parent’s circumstances change and as a result arrangements may need to be altered as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking further orders from the Court in future. Litigation is costly in both financial and emotional terms.
In this case I consider that the wife has long failed to accept the consequences of her decision to consent to the orders that were made by the Family Court on 22 July 1999. Her failure to come to terms with those orders and accept them has inevitably led to the current proceedings. Her discontent with the earlier orders has also, in my view, led to a large extent to the obvious tension in the parenting relationship between the parties that has existed since the orders were made.
In my view, it is an important matter that pursuant to the orders of July 1999 both C and B have lived with their father. Given the current ages of the two children concerned this period of time constitutes a significant proportion of their lives to date. In my view, the Court should be cautious before it alters such a long-standing status quo. The wife has blamed a number of people, not least of which are her legal adviser, for the delay in bringing the current proceedings. I have no doubt that she will be dissatisfied with the orders that I am going to make in this matter. That, of course, is no reason to adopt the course that the wife wishes the Court to follow. This is a problematic matter. I am not certain whether or not the orders that I will make will necessarily prevent the institution of further proceedings in future. However, on balance, I believe that the maintenance of the current arrangements for the care of C and B with some modification in respect of contact arrangements constitute the course that is most likely to lead to stability between the parties and as a result is the one least likely to result in further proceedings.
(k) Any other factor
The wife is critical of the husband for his decision to live in T. In her view this is a situation that is likely to be one which will result in C and B growing up in rural isolation and penury. As has already been indicated, the wife has never been to T and I suspect that she is somewhat prejudiced against the place because of its association with the husband. In my view there is no evidence to indicate that T is either more or less suitable than any other place for these two children to grow up in.
Conclusions
In my view, the best interests of C will be best served by her continuing to live with the wife. This after all represents the reality of her life for the past three years and accords with her strong wishes as recorded by Mr Ralph. It is regrettable that she will grow up largely in isolation from her two brothers. However, sadly it is not possible to rectify this situation at this stage due to its long-standing nature.
It is also my view that the best interests of C and B will be best served by their continuing to live with the husband in T. I accept the evidence of Mr Ralph that there are potential difficulties for the boys if there is a change of their residence at this stage. In my view, it is clear that the two boys are well settled with their father and no strong or compelling reason exists to change this arrangement at this stage.
However, it is necessary that orders be made to ensure that as far as is possible that both C and B have regular contact with their mother and indeed with C and their newly born brother J in Alice Springs. I hope that once the stress of this litigation is put aside and the import of the consent orders of July 1999 has been confirmed by this hearing, that each of the parties will be able to put aside their hostility for one another and work together cooperatively to ensure that the contact as ordered takes place.
To this end I propose making a number of what I hope are practical orders that will ensure that this contact takes place.
Firstly, in this day and age, which prides itself on the ease and accessibility of its telephonic communication, there seems no reason why the husband should not have in his home a telephone in working order that is at least capable of receiving incoming calls. The rent for such a service is modest. The presence of such a telephone will give some peace of mind to the wife and enable her to be able to talk to the boys in the comfort of their own home.
Secondly, orders that dictate the parent taking contact should collect the children at the beginning of contact and that the other parent should collect them at the conclusion of contact should, to my mind, alleviate some of the difficulties that have arisen in the past when there have been disputes between the parties as to where they will meet and how the costs of travel are to be shared between them. If responsibility for the children’s travel is divided in this way, it will be clear who of them is responsible for which contact journey. When the wife takes contact to C and B in Alice Springs it will be her responsibility to either drive them at her expense from South Australia to the Northern Territory and the financial responsibility of the husband to ensure that they are returned to his home in South Australia. There should be one proviso in respect of this matter. If the parties agree that the children should fly between Adelaide and Alice Springs and there is much to be said for such an arrangement, then the husband should be responsible for driving the children to and from the Adelaide airport.
Thirdly, and perhaps most importantly there should be some formal mechanism whereby the parties communicate with one another their intention to take contact and the exact date on which it is to commence and conclude. On too many occasions in the past, contact arrangements have proceeded on an ad hoc basis at the last moment and as a result there have been problems. I propose making an order that will require the party taking contact to give 28 days notice of his or her intention of taking contact and to advise, in writing, of the specific day the contact will commence and how that party proposes that the children will travel for that contact. This will give the other party the necessary time to make arrangements for the return of the children to him or her and inform the other party, again in writing, after a further 14 days has elapsed of how the return is to be effected and if appropriate coordinate with the other party if air travel is involved.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 14 June 2002
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