B-S and B-S
[2002] FMCAfam 394
•5 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B-S & B-S | [2002] FMCAfam 394 |
| FAMILY LAW – Contact – wishes of older children – attitudes of parents to contact. |
| Applicant: | M B-S |
| Respondent: | J B-S |
| File No: | (P) ADM4458 of 2001 |
| Delivered on: | 5 December 2002 |
| Delivered at: | Adelaide |
| Hearing Dates: | 3 & 4 December 2002 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Husband in person |
| Solicitors for the Applicant: | Husband in person |
| Counsel for the Respondent: | Mr McQuade |
| Solicitors for the Respondent: | Thomson Playford, Adelaide |
ORDERS
That all previous orders made herein or in the Family Court of Australia with respect to children’s issues be and the same are hereby discharged.
That the husband and the wife do have the joint responsibility for the long term, care, welfare and development of the three children of the marriage J J B-S born 5th November 1988, TR J B-S born 21st October 1990 and T M B-S born 20th October 1992.
That the said children do reside with the wife who shall have the sole responsibility for their day to day care, welfare and development.
That the wife do give and the husband do have contact with the said children as follows:-
(a)On each alternate Sunday commencing on the 15th day of December 2002 from 12 noon to 6pm during non daylight saving months and from 10am to 7pm during daylight saving months;
(b)From 12 noon on the first Sunday to 6pm on the second Saturday of the April, July and September/October school holiday periods in each year;
(c)From 10am on 16th January 2003 to 7pm on 25th January 2003;
(d)Thereafter, during the Christmas school holiday period in each year from 12 noon on the Thursday falling during the fifth week thereof until 6pm on the second Saturday thereafter;
(e)From 12 noon on Christmas Day to 7pm on 26th December 2002 and each alternate year thereafter between the same times;
(f)From 12 noon on 24th December 2003 to 12 noon on 25th December 2003 and each alternate year thereafter between the same times;
(g)From 12 noon on Good Friday to 6pm on Easter Saturday in 2003 and each alternate year thereafter between the same times;
(h)From 10am on Easter Sunday to 7pm on Easter Monday in 2004 and each alternate year thereafter between the same times.
(i)On Father’s Day in each year from 12noon to 6pm in the event that same does not fall on a contact weekend.
(j)By way of telephone each Thursday at approximately 7.30pm with the wife to facilitate the children calling the husband reverse charges or by such other method at the husband’s expense as he may nominate.
That the wife give and the husband have contact with the child J on each alternate Saturday commencing on the 14th day of December 2002 from 12 noon to 6pm during non daylight saving months and from 10am to 7pm during daylight saving months PROVIDED HOWEVER that such contact shall be subject to the wishes of J and that J shall advise the husband by telephone by no later than 5pm on the Thursday preceding each such contact period as to whether or not he wishes to attend on contact on that day.
For the purposes of all contact handovers the husband collect the children from the Children’s Contact Service at Hindmarsh in the State of South Australia at the commencement thereof and he return them thereto at the conclusion of contact SAVE AND EXCEPT if the said Children’s Contact Service is unavailable WHEN AND IN SUCH CASE handovers will be effected inside the Wakefield Street Police Station.
That during all contact periods the wife be at liberty to speak with any of the children if they have been unwell prior to the commencement of that contact period.
That in the event of the husband being unable to take contact on a Sunday due to work commitments he will advise the wife through the Children’s Contact Service of such inability to take contact and the contact shall occur on the Sunday immediately following.
That the husband be restrained and an injunction is hereby granted restraining him from:-
(a)abusing or criticising the wife in the presence of the children;
(b)initiating any discussion with the children as to these proceedings or initiating any such discussion in the presence of the children;
(c)consuming any illegal substances whilst the children are in his care;
(d)consuming alcohol to excess whilst the children are in his care;
(e)questioning the children about the wife’s private life during any periods of contact;
(f)obtaining or attempting to obtain any passport whether Australian or Polish for any of the said children.
That the husband ensure that during any periods of overnight contact the child T sleep in a bed on her own each night of such contact.
That for any contact periods that take place between the husband and the said children at Port Augusta the husband ensure that his antique English and French pistol and swords are removed from his premises for the duration of the contact period.
The husband be restrained and an injunction is hereby granted restraining him from taking all or any of the children on any outings during any contact periods whatsoever where he or any other adult present has or uses any firearms in any way whatsoever.
That the husband ensure that the children are transported in a properly serviced motor vehicle equipped with safety belts.
That the husband ensure that he is personally present during all periods of contact to supervise the children.
That the husband’s contact during school holiday periods be subject to the husband being on leave from his employment and that the husband do provide to the wife not less than seven (7) days prior to the commencement of such contact period written confirmation from his employer as to his leave from employment during that contact period.
That the wife do keep the husband informed at all times of the children’s residential address and advise the husband within seven (7) days of any change of residential address of the children.
That the husband be entitled to forward appropriate parcels, letters and other written correspondence to the children at their residential address from time to time and that the wife do forthwith hand such written correspondence to the appropriate child.
That during any periods of holiday contact the husband do advise the wife if he intends to be away from his residence in Port Augusta for any part of that contact period and further, that he advise the wife of where he and the children will be staying.
That the husband do keep the wife informed of his mobile and landline telephone numbers at all times and do advise her within seven (7) days of any change in such numbers.
That all applications do otherwise stand dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
(P) ADM4458 of 2001
| M B-S |
Applicant
And
| J B-S |
Respondent
REASONS FOR JUDGMENT
Introduction
The issues before the Court relate to residence and contact of three children J J B-S born 5th November 1988, TR J B-S born 21st October 1990 and T M B-S born 20th October 1992.
Applications
The proceedings were initiated by the husband’s application filed in the Family Court of Australia on 15th April 2002.
In that application the husband sought orders that the parties share the responsibility for the long term care, welfare and development of the children, for the children to reside with the wife and for each party to have responsibility for the children’s day to day care, welfare and development whilst in the care of that party, and for specific orders for contact. He also sought orders in relation to contact handover arrangements and provision of information to him by the wife of details concerning the children’s health, education and sports activities.
The wife filed a response in the Family Court of Australia on 3rd June 2002 wherein she sought an order that the children reside with her, that she have the sole responsibility for their day to day care, welfare and development and that the husband’s application do otherwise stand dismissed.
I have referred to the application and response in general terms because by the time the trial commenced on 3rd December 2002 the actual orders sought by each party had been better clarified by way of an application tendered to the Court that day by the husband and the matters set out in paragraph 5 of the wife’s affidavit filed on 25th October 2002.
Interim orders had been made by consent in the Family Court of Australia on 24th June 2002 and it was at that time that the final applications were referred to the Federal Magistrates Court for hearing.
In the application filed by the husband at the commencement of the proceedings he sought the following orders:-
a)That the mother has responsibility for the day to day care, welfare and development of the children. When children are under the father (sic) supervision he is responsible for the children.
b)That the mother and the father share responsibility for making decision (sic) about the long term care, welfare and development of the children.
c)That the mother do give and the father do take contact with the said children as follows:-
i)Telephone contact every Thursday at approximately 7.30pm, mother to make a land line number available and to allow unhindered telephone contact with the children;
ii)Every Sunday from 12 noon to 6pm and every Sunday from 10am to 7pm during daylight saving period;
iii)Individual contact with the eldest son J every second and fourth Saturday of each month from 12 noon to 6pm and from 10am to 7pm during daylight saving period;
iv)In the first week of Autumn, Winter and Spring school holidays from Sunday 12 noon to Saturday 6pm of that week;
v)In the fifth week of Summer school holidays from Thursday 12 noon to Saturday 6pm of the sixth week of the school holidays (16th January 2003 to 25th January 2003 in the Summer holidays 2003);
vi)From 12 noon Christmas Eve to midday Christmas Day in 2002 and each alternate year thereafter;
vii)From midday Christmas Day to 7pm Boxing Day in 2003 and each alternate year thereafter;
viii)At Easter from 12 noon Good Friday to 7pm Easter Saturday in 2003 and each alternate year thereafter;
ix)From 7pm Easter Saturday to 7pm Easter Monday in 2004 and each alternate year thereafter;
x)Such future (sic) and others (sic) contact as agreed between the parties.
d)That for the purpose of contact each alternate Christmas, Easter and school holidays the father is to collect the children from the Children(sic) Contact Service in Adelaide at the commencement of the visits, and the mother is to pick up the children from the Police Station in Port Augusta at the conclusion of the contact periods.
The orders the mother sought were set out in paragraph 5 of her affidavit filed on 25th October 2002 and were in the following terms:-
e)That the husband have contact with the children as follows:-
i)Every third Saturday from 12 noon to 6pm;
ii)From 12 noon to 6pm on Father’s Day;
iii)From 12 noon to 6pm on Christmas Day each year.
f)That all contact between the husband the children be subject to the children’s wishes provided that the children telephone the husband at least 48 hours prior to the contact commencing and advise the husband whether or not they wish to have contact with him.
g)That handovers at the commencement and conclusion of each period of contact take place at the Children’s Contact Service, Hindmarsh.
h)During contact periods the wife have liberty to speak to any of the children if they have been unwell prior to the commencement of contact.
i)That if the children’s birthdays fall on a contact period that the contact be suspended and the father to have contact on the following weekend.
j)In the event that the father is unable to attend contact due to work commitments then the contact shall take place on the Saturday following, upon written notification being provided to the Children’s Contact Service.
k)That the husband be restrained an injunction granted restraining him from:-
i)Abusing or criticising the wife in the presence of the children;
ii)Discussing these proceedings with or in the presence of the children;
iii)Consuming any illegal substances whilst the children are in his care;
iv)Consuming alcohol to excess whilst the children are in his care;
v)Attempting to obtain information from the children about the wife’s private life;
vi)Obtaining or attempting to obtain any passport whether Australian or Polish for any of the children;
vii)From removing the children from the metropolitan area of Adelaide without the written consent of the wife.
l)That in the event that any contact take place between the husband and the children on an overnight basis that the husband ensure that the child T sleeps in a bed on her own during each night of contact.
m)That if contact takes place between the husband and children at Port Augusta that the husband ensure that his antique English pistol and French pistol, swords and semi automatic gun are removed from his premises for the duration of the contact period and that the husband be restrained and injunction granted restraining the husband from taking all or any of the children on any outings during such contact period or any other contact period where he or any other adult present has or uses any firearms in any way whatsoever;
n)That the husband ensure that the children are transported in a properly serviced motor vehicle equipped with safety belts;
o)That the husband ensure that he is personally present during all periods of contact to supervise the children and that the children are not left in the care of other persons except with the written consent of the wife.
Documents relied on
The husband relied upon his application tendered to the Court on 3rd December 2002, his affidavit sworn in these proceedings on 5th April 2002 and his affidavit sworn in these proceedings on 17th October 2002.
The wife relied on her response and on her affidavit filed in these proceedings on 25th October 2002.
A Court Counsellor’s Report was prepared prior to the hearing by Dr Julie Savage, which report formed part of the evidence for the trial. The Court called Dr Savage to give evidence and she was cross examined by the wife’s counsel and by the husband. Both parties were cross examined as to their evidence.
History of proceedings
The proceedings were commenced by way of the husband’s application filed in the Family Court of Australia on 15th April 2002, which application was returnable for 14th May 2002.
On that day an order was made that the children reside with the wife, that she have responsibility for their day to day care, welfare and development and that the husband have contact with the children on each alternate Saturday from 11am to 6pm to commence on 1st June 2002. Each party was restrained and an injunction granted restraining each of them from denigrating the other parent in the presence of the children or from allowing any other person to do so, and from discussing the proceedings in the presence of the children and allowing any other person to do so. The Court ordered that handovers at the commencement and conclusion of each period of contact take place at the front gate or the fence line of the wife’s residence and that in addition to physical contact the father have liberty to have telephone contact with the children each Thursday evening at approximately 7.30pm. It was ordered on that occasion that the parties attend at confidential counselling, that the mother file answering documentation and that further consideration be adjourned to 24th June 2002 before a Registrar.
The parties attend at counselling, were unable to reach agreement and on 24th June 2002 Registrar Kelly ordered as follows:-
By consent it is ordered:
1.That until further order the children J J B-S born on the 5th day of November 1988, TR J B-S born on the 21st day of October 1990 and T M B-S born on the 20th day of October 1992 do reside with the wife who shall be responsible for their day to day, care, welfare and development.
It is ordered until further order:
2.That the wife give and the husband have contact with the children J, T and T as follows:-
a.Every third Sunday from 12 noon until 6pm commencing 7th July 2002;
b.From 12 noon until 6pm on Father’s Day in the event that Father’s Day does not already fall on a contact weekend;
c.From 12 noon until 6pm on Christmas Day in 2002;
d.Such further and other contact including school holiday contact as may be agreed between the parties.
3.That handovers at the commencement and conclusion of each period of contact take place at the Adelaide Police Station, Wakefield Street, Adelaide.
4.In the event that the husband is unable to attend contact due to work commitments then the contact shall take place on the Sunday following upon written notification being provided to the wife in that regard.
5.That each party be restrained and an injunction is hereby granted restraining each of them from:-
a.abusing or criticising the other party in the presence of the children;
b.discussing these proceedings with or in the presence of the children;
c.consuming any illegal substances whilst the children are in their care;
d.consuming alcohol to excess whilst the children are in their care;
e.obtaining or attempting to obtain any passport whether Australian or Polish for the children.
6.That the husband have telephone contact with the children each Thursday at approximately 7.30pm with the wife to facilitate the children calling the husband reverse charges or by such other method at the husband’s expense as he may nominate.
7.That further hearing of the final applications in this matter be referred to the Federal Magistrates Service for the allocation of a hearing date.
8.That all interim applications be dismissed and removed from the pending cases list.
On 8th July 2002 the matter came before me for directions and I listed the competing applications for trial at 12 noon on 18th March 2003 allowing 2 days for trial. I further ordered a Court Counsellor’s Report to be available if possible by 18th October 2002 and adjourned trial directions to 12th November 2002.
The directions hearing was brought forward to 17th September 2002 as a result of the early provision of the report and further interim applications were filed by the husband in relation to contact issues.
On 25th September 2002 I heard argument in relation to the application regarding contact for school holidays in October 2002 and I also made further trial directions. The trial was brought forward to 3rd December 2002, and various orders were made in relation to the trial.
The following orders were made in addition thereto in relation to contact issues:-
a)That both parties do within seven days all such acts and things and sign all such documents as shall be necessary to gain acceptance in the Contact Service at Hindmarsh, to the intent that all contact handovers shall until further order be conducted at those premises with the cost of same to be shared equally between the parties SAVE AND EXCEPT that contact handover on 29th September 2002 be effected inside the Wakefield Street Police Station.
b)That in addition to the contact ordered on 24th June 2002 the wife give and the husband take contact with the three children from 12 noon on 5th October 2002 to 7pm on 9th October 2002 with such contact to be subject to the following:-
i)That the husband ensure that T sleep in a bed on her own during each night on contact;
ii)That the husband ensure that the children are transported in a properly serviced motor vehicle equipped with safety belts;
iii)That the husband provide to the wife written notification of a contact telephone number available to the wife for use in the case of emergency during the contact period;
iv)That the husband advise the wife in writing not less than 7 days prior to the contact period, if possible, the place where the children will be sleeping overnight during contact and if not possible 7 days prior thereto, immediately upon such information becoming available will ensure that the children telephone the wife and advise her of any change;
v)That the husband do ensure that his antique English pistol and French pistol are removed from his premises for the duration of the contact period;
vi)That the husband be restrained and an injunction is hereby granted restraining him from taking all or any of the said children on any outings during the 2002 contact period or any other contact period where he or any other adult present has or uses any firearm whatsoever.
I otherwise dismissed all applications and granted the parties liberty to apply.
Background
The parties commenced a relationship in 1984, married in December 1994 and separated in August 2000.
The three children, the subject of the applications namely J, T and T are aged 14 years, 12 years and 10 years respectively.
Prior to the parties’ separation the husband had taken up employment in Port Augusta and was away during the week, returning to Adelaide on most weekends.
For approximately 12 months after the parties’ separation by agreement between the parties, the husband continued to see the children on most weekends by attending upon the former matrimonial home and seeing the children on weekends by agreement with the wife. The parties came to this arrangement in an endeavour to ensure that the children’s lives were disrupted as little as possible.
The relationship between the parties deteriorated, the wife alleges that the husband was frequently rude, critical and derogatory of her in the presence of the children and after approximately 12 months of the husband taking contact with the children at and about the former matrimonial home, the wife advised that he should subsequently take contact away from the home.
In approximately February 2001 the wife visited her family in Poland and the husband cared for the children in the former matrimonial home for a period of approximately 4 weeks.
In January 2002 by agreement between the parties the husband had contact with the children in Port Augusta for a period of approximately 1 week.
In April 2002 the husband filed his application for specified contact times. He said that he filed the application as he was dependent on the wife’s agreement to contact times and such agreement was in his view unpredictable.
It is common ground that there were some difficulties in relation to J attending on contact with the husband after an incident in January 2002.
I do not intend to more fully traverse issues as to the background to these proceedings as the husband gave evidence regarding his agreement to many of the conditions sought by the wife in respect of any contact that occurs and much of the dispute between the parties relates to frequency of contact.
Issues before the Court
The dispute between the parties relates primarily to the frequency of contact as between the husband and the children and whether such contact should be subject to the wishes of the children. The parties are also in dispute as to the amount of school holiday contact that should occur and whether any overnight contact should occur in the Adelaide metropolitan area or whether the husband should be at liberty to take such contact out of the Adelaide metropolitan area. There is also a dispute between the parties as to the appropriate contact to occur on or about Christmas Day in each year and whether exceptions should be made to a contact order in the event that contact falls on one of the children's birthdays. There is a dispute between the parties as to whether on a maximum of four occasions per year the wife should travel to collect the children from the husband in Port Augusta in the event of there being school holiday contact that is taken in Port Augusta, and also whether the husband should have contact with J on his own in addition to the contact that he has with J at the same time as the other children. There is also dispute as to whether there should be specific contact orders in relation to the Easter period in each year.
The husband also seeks a variation to the existing telephone contact order such that the wife makes a landline telephone number available on which he is able to have what he describes as “unhindered” telephone contact with the children on Thursday of each week at approximately 7.30pm, whereas the wife is of the view that the existing order for telephone contact made in the Family Court of Australia on 24th June 2002 should continue.
Although not an issue strictly before the Court in terms of orders sought by either party, the issue of the husband being aware of the children’s residential address arose during the proceedings.
There is a domestic violence restraining order in place which restrains the husband from attending at or within 200 meters of the wife’s place of residence and her place of employment, but the husband is concerned that the wife has recently moved address, that he has no idea of the residential address of the children and he is of the view that he is entitled to know where his children live.
The Law
The sections of the Family Law Act that are relevant to these proceedings are section 60B, section 65E and section 68F (2). Those provisions are as follows.
Section 60B
Object of Part and principles underlying it
(1)The object of this Part 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.
(2)The principles underlying these objects are that, except when it is or would be contrary to a children’s best interests:-
(a)Children have a right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)Parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)Parents should agree about the future parenting of their children.
Section 65E
Child’s best interests paramount consideration in making a parenting order
(1) In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 68F
How a court determines what is in a child’s best interests
(1)Subject to subsection (3), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2);
(2)The Court must consider:-
(a)any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
(b)the nature of the relationship of the child with each of the child’s parents and with other persons;
(c)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:-
(i)either of his or her parents; or
(ii)any other child, or other person, with whom he or she has been living;
(d)the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e)the capacity of each parent, or of any other person, to provide for the needs of the child including emotional and intellectual needs;
(f)the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:-
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i)any family violence involving the child or a member of the child’s family;
(j)any family violence order that applies to the child or a member of the child’s family;
(k)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)any other fact or circumstances that the court thinks is relevant.
(3)If the Court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all of any of the matters set out in subsection (2).
The Court must therefore consider the applications before the Court in this matter in light of the duties and responsibilities of parents as specified in section 60 of the Act and the rights of children set out therein, but noting at all times that pursuant to section 65E of the Family Law Act the welfare of the children is the paramount consideration. In coming to a conclusion the Court must consider all of the relevant factors set out in section 68F(2).
The husband’s evidence
It was the husband’s case that he has always had a close and loving relationship with his children, that his children enjoy the time that they currently spend with him and are anxious on occasions to spend more time with him and that it is in the children’s interests to be able to develop their relationship with him and spend additional and specified times with him.
He is opposed to any concept of the contact orders being subject to the wishes of the children because of his concerns that the children may be influenced in that regard by the wife and further, that the children are still too young to make such decisions in that they may not fully appreciate what is best for them at this age.
There was no extensive evidence in chief from the husband before the Court, save and except for the original affidavit accompanying the application which was of the pro forma nature and set out the arrangements in place at that time and also the wish of the husband to have regular contact with the children and be able to plan activities.
His affidavit filed on 18th October 2002 set out his desire to have contact with the children on each Sunday and suggested that the wife was depriving him unjustly of close contact with the children. The husband also gave evidence that the children were expressing a wish to see him more often.
The husband also gave evidence in that affidavit as to what he perceived the benefits were for J, who is now aged 14 years, in being able to have additional “one on one” contact with the husband on each alternate Saturday.
The husband was cross examined and for the most part I find that he was a truthful and reliable witness.
It was put to the husband in cross examination that Dr Savages’ finding that he was self-focussed was an accurate assessment of his personality. He disputed that assessment on the basis that her observation of him was of limited duration, that particularly when he was observed with the children he was in a stressful situation and he was nervous and that he found the situation unpleasant.
He was unable to recall whether he had directed conversation to his areas of interest and effectively overridden what the children were attempting to discuss with him on occasions and said that, in relation to the discussion he had with J, where apparently the discussion moved from J discussing volleyball to the husband discussing soccer, it was an issue of little importance as J was interested in both sports. In relation to the issue of him apparently overriding T expressing her views about not wanting to spend time with her on his own, he stated that he was simply trying to point out the benefits of that course of action to T.
In relation to the issue of contact being subject to the wishes of the children the husband was adamant in cross examination that he did not believe that children of the age of J, TR and T should have total freedom as to whether or not they attended on contact.
He was concerned as to the pressures that the children may experience from the wife and disputed the strength of the boys’ views in relation to contact being subject to their wishes which he perceived may have arisen as a result of the wife’s influence.
He was happy to accept T’s wish not to attend on contact on her own but distinguished between his acceptance of that wish and his failure to accept the express wishes of the boys for the contact to be subject to their wishes on the basis that to accede to that express wish gave the boys complete freedom as to whether or not to attend on contact, which, as he had previously said, he did not believe was in their best interests.
Mr B-S was of the view that it was a matter for the Court to decide and was concerned that as he perceived the necessity for Court proceedings to have arisen because of difficulties in negotiating regular contact with the wife, such an outcome would lead to ongoing difficulties.
Mr B-S seemed to be agreeable to the suggestion that additional contact with J on his own be subject to J’s wishes.
Mr B-S was cross examined extensively about an incident that occurred during a contact visit with the children in January 2002 at Glenelg in South Australia.
It was common ground that there was a dispute between J and T and that Mr B-S disciplined J in relation to that dispute.
In cross examination Mr B-S down-played the severity of his response to J in that circumstances which was clearly an incidence of such significance to J that he had told his mother about it, that he had been reluctant to attend on contact for a period of time after the incident and he had seen fit to discuss the incident with Dr Savage during his interview.
I find that the husband did react to J on that occasion in a more stern and overbearing fashion than he was prepared to concede in cross examination, but I also find, taking into account J’s age, that he was reluctant to accept his father’s intervention and discipline on that occasion and felt strongly that his father should have been able to resolve the dispute in a manner more suitable to a child of his age.
I find, taking into account that incident and the occasions when Mr B-S talked “over the children” during the observed interview at the Court, that Mr B-S does have a tendency to express his views emotionally and quite forcefully on occasions and is not always able to accommodate the children’s need to be heard and have their views considered.
I do not however consider that it is unreasonable for Mr B-S to try and persuade T as to the benefits of coming to see her on his own and nor do I find it unreasonable that Mr B-S discipline J for fighting with his sister.
The evidence of all three children loving their father and wanting to maintain a close relationship with him is clear, particularly from the evidence of Dr Savage, and I do not find that these events are anything more than are to be expected from time to time in relationship between a parent and a child where a child is beginning to mature and want to express views and be listened to, and to a great degree it is a learning experience for both parents and children.
I am satisfied from the evidence given by the husband and his responses to answers in cross examination that these are issues to which he has turned his mind, that he has attempted to understand the particular circumstances and that he is mindful of the need to consider the children’s wishes and views on certain matters, but that such an awareness is tempered with his view that there should be some structures in which children of the ages of these children operate.
The husband was questioned at length about things he may have said either to the children or in the presence of the children from time to time as to his views regarding the wife. He conceded that on occasions he called her silly, stupid and said that she was an irresponsible parent. He said that he no longer makes those sorts of comments and that they were usually made at times when he was quite emotional.
Children do not like hearing one parent denigrate the other parent when they love both parents, and the inevitable consequence is placing children in an invidious position of divided loyalties.
Dr Savage said in her report that the children were all of the view that their concerns about their father saying things that upset them about their mother had resolved “since the new orders”. It is unclear as to whether that means since the orders were made restraining the parties from denigrating the other of them, or since contact handover was changed to the Children’s Contact Service, which means the parents have no contact.
I am satisfied on the evidence of the husband that he has considered the impact on the children of making such inappropriate statements and that he will use his best endeavours not to do so in the future.
I am further satisfied that as both parties are agreed contact handover is continue to occur at the Children’s Contact Service for the most part, it will mean that face to face meetings between the parties are limited and there will be virtually no opportunity for at least such face to face denigration. I note that both parties are also agreeable to an order in those terms continuing.
The husband was cross examined at length about beds slept in by the children at contact periods.
The only contact that the husband has taken with the children on an overnight basis away from Adelaide since the parties separated was approximately 1 week in January 2002 when the children stayed at his home in Port Augusta and for 5 days in October 2002 when they likewise stayed with him in Port Augusta.
During the contact period in January 2002 the child T slept in the husband’s bed.
I accept the evidence of the husband that during the period of the marriage one or other of the children often slept in the parents’ bed or spent part of the night in the parents’ bed. Nonetheless, circumstances have changed, T is growing older and is appropriate for her to sleep in her own bed.
The husband was agreeable to an order in those terms prior to the October holiday period and I find that for that holiday period and for all holiday periods in the future the husband will ensure that T sleeps in her own bed.
During the October 2002 holiday period the husband provided a double blow up mattress for the boys to sleep on on the floor. The wife complained of that arrangement. The wife also complained that J had in fact slept in the husband’s bed during that contact period.
The husband gave evidence that he saw nothing wrong with providing a blow up mattress on which the boys were able to sleep and that he offered J the option of having another bed made up on which he could sleep in the lounge room or he could sleep with the husband in the queen sized bed and that J accepted the offer to sleep in the queen sized bed.
The husband said in cross examination that the reason there were not specific beds for each child fully set up in his residence in Port Augusta was that until these proceedings were finalised he was not aware of what contact he would be having with the children, whether that contact would regularly be able to be at his home and accordingly, it was not financially sensible to pay for beds that may not be used.
I accept the husband’s argument in that regard as a reasonable approach.
I further find that it was reasonable for him to provide a blow up mattress for the boys to sleep on during the October 2002 school holidays.
I further find that J slept in the husband’s bed of his own volition and that there was nothing inappropriate in that course of action.
I am satisfied that the husband, if he is granted an order for regular holiday contact, will provide beds and bedding for the children in his flat in Port Augusta, but find that if either of the boys either want to sleep in his bed with him or on a blow up mattress on the floor, such choice should be available to the boys.
I do not find it necessary for the husband to give any undertaking to the Court in regard to beds for the boys. He is clearly prepared to give such undertaking in relation to T and I find that such undertaking is reasonable and appropriate.
Mr B-S conceded in cross examination that he had sent messages to the wife by email at a time when the dispute as to contact was looming large and also at the time of the incident involving J at Glenelg.
The husband expressed his views forcefully to the wife in those emails, but in relation to the email concerning J and seeking support from the wife in relation to disciplining J, the husband said in cross examination that it was sent in the context of him having been frightened when J had run away, that he had telephoned the wife to ask whether J was at home and that the wife had denied that he was at home notwithstanding that he had so been, which had caused the husband additional stress and concern.
I make no finding in relation to either of those matters save and except to say that it is clear that tensions between the parties were running high at that time, that such communication is unproductive, but that as a restraining order is now in place and there is no evidence of it having occurred since that time, it is not a matter with which I should concern myself further.
The husband was cross examined about talking with the children about their change of address, about discussing issues of child support with them and showing them an amount of money he had withdrawn from the bank as the amount he pays in child support, and discussing Court proceedings and the fact that he was allegedly “winning” the proceedings.
It is of concern that these issues have been raised by the husband with the children and I find, in light of his evidence in that regard, that he has been mistaken at the very least in relation to his understanding of the nature of the injunction restraining him from discussing these proceedings with the children.
I accept the husband’s view however that it is difficult to not respond to issues raised by children, particularly children of this age in relation to issues of contact and that often telling them that he is unable to discuss those issues with them would not be a satisfactory response.
I am equally concerned about the amount of detail contained in the wife’s affidavit evidence as to what children have said and done with the husband during contact periods and am somewhat concerned about the extent of questioning that may occur in the wife’s household at the conclusion of contact periods.
There was no specific evidence in that regard, nor was the wife cross examined as to that issue but there was certainly extensive material in her affidavits based on what the children had told her, and no suggestion in that material as to the context of those discussions.
The husband was cross examined about the orders sought by the wife as set out in paragraph 5 of her affidavit filed on the 25th October 2002, and was agreeable to many of the orders sought by the wife.
The issues in dispute were those set out in paragraphs 30 to 33 inclusive of this judgment.
I find that it was to the husband’s credit that he made concessions in relation to the numerous requirements of the wife as to contact and that such concession indicated an acknowledgment on the part of the husband that for contact to be successful for the children as well as himself, he needed to use his best endeavours to allay the fears of the wife in relation to those issues.
The husband conceded that he had not spoken with the children specifically about the exact contact times that he was seeking, but was rather basing his application on general discussions with the children which indicated to him that they wanted to see him more often.
The husband conceded in cross examination that his earnings were approximately $70,000 per year inclusive of extensive overtime and that he was in a superior financial position to the wife. It was his view however that he did the majority of travel from Port Augusta and return to see the children and that it was not a significant imposition on the wife to request that she travel to Port Augusta on a maximum of four occasions per year to collect the children at the conclusion of holiday contact in the event that that holiday contact had been taken in Port Augusta.
The husband conceded in cross examination that at the time of the interviews with Dr Savage in August 2002 he was still seeking contact with the children on every third weekend and that he did not raise holiday contact other than in relation to October and Christmas school holidays in each year.
The husband said in answer to questions from Mr McQuade that although he earned approximately $70,000 per year that was not his base salary and to earn that amount of money required significant overtime which was usually on Saturdays. His evidence was that he would not be able to earn as much if he took contact on Saturdays rather than Sundays as he was far more likely to be offered overtime work or be required to work on Saturdays.
It was the husband’s view that Sunday was also a more appropriate day to be involved in family activities and he was resistant to any suggestion on the part of the children that contact take place on Saturdays.
The wife’s evidence
The wife’s evidence in chief consisted of an affidavit filed on 25th October 2002. The affidavit was a litany of complaints about the husband, his behaviour towards her, his behaviour towards the children and his inappropriate care of the children during contact periods.
The wife did not in her evidence in chief raise any matters of a positive nature as to the relationship between the husband and the children or any benefit that the children may experience as a result of contact between them and their father.
There is no doubt that the relationship between the husband and the wife has been unhappy for a considerable time and that what I find to be on occasions the husband’s overbearing and critical nature has had a significant impact on the wife over a period of time.
The wife was cross examined by the husband and other than a concession on her part that it would be acceptable for the husband to see J on every second weekend if that was in accordance with J’s wishes, I found it to be a feature of the wife’s responses to all issues raised in cross examination that she was unable to put other than a negative slant on those issues.
In respect to the period of time that the husband cared for the children whilst the wife went to Poland for some four weeks at the commencement of 2001, the wife asserted that she missed the children very much which is undoubtable, that the children missed her and that she was worried that the husband did not feed the children property, relying on what the children had told her. She was critical of the husband for allegedly not taking into account J’s special dietary needs or support him taking his medication and raised the issue of her concerns about the safety of the back door of one of the vehicles in which the husband transports the children.
The wife specifically commented “you don’t care about their lives – you care about yourself – that is why we are here”. That comment was made specifically in relation to the issue of the safety of the car door on one of the husband’s cars, but I find it to be an accurate summary of the wife’s view of the husband’s attitude to the children generally.
The wife asserted in cross examination when questioned as to whether the children are happy or distressed when they come home from contact visits, that from the time the husband started to take contact with the children away from the former matrimonial home the children were so distressed on Saturday and Sunday nights that she did not ask the children anything about what they had done with the husband but simply asked them what they had eaten. She offered that the children did not tell her what they had done on contact.
The wife said in relation to that same issue in cross examination that T would wake up crying on Saturday and Sunday nights but that such crying did not occur during week nights and that eventually she realised that it was a pattern relating to contact. The wife had clearly not considered the possibility of T enjoying her contact visits with her father and being reminded on weekends when visits occurred that she saw him very little.
The wife also said that when the husband started Court proceedings and the children knew about the Court proceedings that J in particular began to tell her what the husband had been saying to the children, for example, the issue of T going to live with the husband and care for him, and that when they came home after every third Sunday contact visit with the husband, they were angry with her and complained about the level of entertainment and the interest level generally during their contact visits with the husband. The wife complained that TR in particular said that the husband broke promises as to what they would do during contact. All of these responses were made in relation to the husband asking whether the children were happy or whether they were distressed after contact visits.
When asked by the husband whether the wife could be influencing the children in relation to the issue of contact, she replied “you know I do nothing to stop the children seeing you – even after the incident with J”.
With the consent of the husband and Mr McQuade of Counsel for the wife, I took the wife through each of the orders sought by the husband in his application tendered to the Court on the 3rd December 2002. The wife agreed that she should have the responsibility for the day to day care welfare and development of the children and that the husband should have the responsibility for such matters when he is responsible for supervising the children. The wife disagreed as to an order that the parents share the responsibility for the long term care, welfare and development of the children, and disagreed with contact at 7.30pm on a Thursday if that contact is to be made on her landline telephone number, but was agreeable to telephone contact continuing in its current form, namely with the wife facilitating the children to call the husband reverse charges or by such other method at the husband’s expense as he may nominate. The wife disagreed with the concept of contact between the husband and the children from 12 noon to 6pm every Sunday and with individual contact with J every second and fourth Saturday.
She was agreeable to the husband having contact for the first week of the April, July and September/October school holiday periods in each year from 12 noon on the first Sunday to 6pm on the second Saturday provided that the contact took place in Adelaide. She was also agreeable to the husband having contact with the children for approximately nine days during the Christmas school holidays in each year provided the contact took place in Adelaide and not Port Augusta.
The wife was not agreeable to the husband’s proposal that he have contact with the children from 12 noon Christmas Eve to 12 noon on Christmas Day in 2002 and each alternate year thereafter, or from midday on Christmas Day to 7pm on Boxing Day in 2003 and each alternate year thereafter.
The wife was not agreeable to the husband having contact for two days over the Easter period each year, even if he was staying in Adelaide as she was not satisfied that the accommodation would be suitable.
She was not agreeable to a general orders for contact as may be agreed between the parties as she rightly pointed out that she and the husband have no contact.
The wife was not agreeable to travel to Port Augusta to collect the children at the conclusion of any of the school holiday contacts that might take place in Port Augusta.
I formed the view at the conclusion of the wife’s evidence in chief and cross examination that she had a total lack of regard for the husband and any role that he may have in the lives of the children.
Evidence of Dr Savage
Dr Julie Savage was called by the Court and made available to both the husband and to Mr McQuade for cross examination.
Her report was extensive and recommended that contact occur between the husband and the children on every third weekend and for one week during the October an Christmas school holiday periods.
Dr Savage further recommended that the contact be subject to the wishes of the children and that all children should attend contact together.
She recommended that the husband should refrain from placing T and TR under pressure to attend on contact on their own and that the husband should negotiate spending time alone with J other than on the usual contact weekend. She further recommended that J attend counselling at the Second Story Child Adolescent and Mental Health Services, Relationships Australia or other suitable community based agency.
Dr Savage spent approximately 1 ½ hours speaking with each party individually and approximately ½ hour speaking with each of the children separately.
She observed the husband and the children together for approximately 20 minutes to ½ hour.
Dr Savage’s evidence was limited in its usefulness, not through any fault on the part of Dr Savage but rather because by the time the matter came to Court the husband’s position as regards the amount of contact he was seeking, had altered.
Dr Savage was cross examined initially by Mr McQuade and questioned about the basis of her assertion in paragraph 40 of her report that she assessed the husband as being self focused.
She said she based that assessment on the husband steering conversations to his own areas of interest on two occasions, one in respect of a discussion with J about volleyball which the husband turned to soccer and a conversation between the husband and T when she was expressing her views about not wanting to attend contact on her own and the husband was “talking over her” in an attempt to persuade her of the benefits of such contact.
Dr Savage was unable to give any other examples of behaviours or interaction that contributed to that impression.
I had the opportunity of observing the husband under extensive cross examination and find that I am unable to agree with the assessment of Dr Savage.
I accept the evidence of the husband that he was nervous on the occasion of observed interaction and that he found the situation difficult.
I find that on occasions that the husband does become emotional about issues and that it is likely that on those occasions he would take the opportunity to clearly state his views to the children.
I find that the husband has considered the matters raised in the report and has come to the view that it would assist his relationship with the children if he considered their views and indeed, in relation to T, he has certainly now decided not to proceed with an application to have contact with either her or with TR apart from the other children.
I find that the husband loves his children dearly, that he is anxious to have a close and loving relationship with them, but that he takes the view that having a close and loving relationship with his children does not mean that he has to accede to their wishes in every respect, nor does it mean that he is unable to express his views about a matter to the children.
I find that Mr B-S is likely to be a man who enjoys lively and on occasions heated debate. His personality is no doubt well known to the children by this time and I find that the minimal levels of distress observed by Dr Savage when the children were “talked over” and the fact that J has now clearly recovered from any slight or anger that he felt towards his father after the incident in January 2002 and is now anxious to see him on a regular basis and on occasions on his own, as well as the positive nature of the relationship between T and TR and the husband, are all indications of a healthy relationship with their father that can withstand any irritation that they may experience from time to time in terms of what they perceive to be a somewhat overbearing nature.
In relation to the recommendation as to the frequency of contact, Dr Savage conceded that she did not discuss with the children anything other than three weekly contact and school holiday contact during October and Christmas school holidays in each year.
TR indicated to Dr Savage as reported in paragraph 24 of her report, that he would like to see his father every two weeks, but went on to say that he only wanted to see his father when he wanted to and not when his father wanted to see him. TR also expressed a preference for a Saturday rather than a Sunday contact visit. TR described positive outings with his father during contact times, expressed a preference to attend for contact with his siblings and indicated that he didn’t think his mother wanted him to see his father but would let the children go if they really wanted to.
J indicated that he would like to see his father every three weeks but didn’t mind if it was every second week and again, expressed a desire to have contact subject to his wishes. He also talked about an opportunity to attend on contact separately from his siblings and indicated concerns about his father denigrating his mother. He talked about the impact on him of the disputes between his parents and he would like his parents to be friends.
T was clear that she did not want to go on contact on her own and that she thought contact every third weekend was about the right amount of time. She also expressed a preference for contact on a Saturday and talked about the distress she felt when her father was critical of her mother. She was the only child who expressed any view about holiday contact and that was that she had had a good time during the Christmas 2001 contact period in Port Augusta.
Dr Savage conceded that she based her recommendation of the frequency of contact on those matters raised by the children and when asked by Mr McQuade whether a move to more frequent contact than that discussed with the children would be detrimental on the children’s relationship with the husband or be problematic in any way, Dr Savage indicated that it would depend on how far the Court moved from the expressed views of the children in framing an order as to whether that had a significant impact.
By the time the husband gave his final address he had moved from seeking contact on each weekend to contact on each alternate weekend, which I find falls within the views expressed by the children.
When Mr McQuade questioned Dr Savage as to why she recommended that contact be subject to the children’s wishes, she said that there was a variety of reasons for that, partly the boys saying that they wanted a choice, partly the age and stage of development of the children and the need on the part of the children and the desire to be involved in other activities and also on her assessment of the receptiveness of the husband to those matters that the children tried to discuss with him, namely the issue about the husband and J discussing soccer as opposed to J’s conversation about volleyball and T’s attempts to tell the husband that she didn’t want to attend on contact on her own.
Dr Savage said that she may not feel so strongly about contact being subject to the wishes of the children if she did not think that the husband discounted what the children had to say and that he didn’t listen to them. I have previously found that I do not accept Dr Savage’s assessment of the husband in that regard.
The issue covered in Dr Savage’s recommendation about T and TR not being under pressure to attend on contact on their own ceased to become an issue in these proceedings as that was conceded by the husband and the husband is also seeking contact to all three children together each second week, and it is only J that he is seeking to have contact with on an individual basis. This of course accords with the views expressed by J to Dr Savage as set out in paragraph 29 of her report.
Dr Savage was cross examined by Mr B-S and readily conceded that the children were very happy to see him and to go to lunch with him on the day of the interviews and said that her impression was that the children had a close relationship with him and that they enjoyed that relationship. She observed a happy display of affection on the part of the children at the time that they farewelled the husband and agreed that the behaviour that she observed between the children and the husband could be described as normal.
Dr Savage said that she felt that the children had a good relationship with the husband and that they wanted to maintain that relationship.
She was of the view that any negative view that the wife may hold in respect to the children’s contact with the husband would not be sufficient to prevent that relationship continuing and being maintained, even if the contact was subject to the wishes of the children.
Dr Savage conceded in response to a question from me that there was a need for some certainty and expectation of contact occurring to override any negative impact on the children of the wife’s views, and she said that the question was how to balance that with the children’s needs for flexibility and consultation.
Mr McQuade asked further questions arising from the questions I asked of Dr Savage and put to Dr Savage that even if the wife was unsupportive of contact occurring, if the children were to elect not to attend on contact that such a choice would be based on their own reasons and not on the wife’s reasons.
Dr Savage conceded that such a proposition was reasonable and it was likely that the children wanted to have choice because of wanting to undertake other activities with their friends and acquaintances.
Section 68F(2) factors
Having considered the evidences from the witnesses in the case and having made the findings that I have made to date I am now required to make orders in the best interests of the children subject to the matters set out in section 68F(2) of the Family Law Act.
The relevant factors under section 68F(2) are in my view those set out in section 68F(2)(a), section 68F(2)(b), section 68F(2)(e), section 68F(2)(h), section 68F(2)(k) and section 68F(2)(l).
Section 68F(2)(a) – any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
All three children have expressed a desire to attend on contact with the husband with both of the boys conceding that contact on a fortnightly basis would be acceptable and with T saying that contact every three weeks was suitable from her perspective.
It was not put to the children by Dr Savage that contact should occur any more frequently than that as at that time the husband was not seeking more frequent contact.
Dr Savage did not discuss the issue of holiday contact in any depth with any of the children and it was only mentioned by T who was happy with the Christmas school holiday contact in 2002.
Both boys expressed a desire to attend on contact taking into account their own wishes and this was a view that was supported by Dr Savage. I have previously set out my reasons for disagreeing with the basis of Dr Savage’s recommendation in that regard.
I find that the boys have expressed a desire for contact to be subject to their wishes.
I find that they are of an age, particularly J, where they have activities from time to time that they will want to participate in rather than attend on contact with the husband.
I find that the wife has a negative attitude as to contact between the husband and the children.
I find that the children, in particular TR, are aware of that attitude.
I find from the tenor of the conversations the wife describes in her evidence in chief as between she and the children relating to contact issues indications of J and T also being aware of the wife’s attitude.
Although I accept the evidence of Dr Savage that if the boys cancelled a contact period it would be for their own reasons and not necessarily for reasons relating to the wife, I am not convinced that the wife’s attitude towards contact would be of such a positive nature as to provide the boys with appropriate guidance as to what was a reasonable attitude as to whether to attend on contact on a particular occasion, but rather that she was more likely to simply concur with any request on the part of either of the boys not to attend on contact.
I find that the relationship between the husband and all three children is a close, loving and important relationship for the children.
I find that if contact was subject to the wishes of the boys at this time that it may be more difficult than the boys envisage for them to maintain that close and loving relationship that they have to date maintained with their father.
I find that having contact subject to those wishes is likely to place the boys in an ongoing position of divided loyalty between their parents.
I find that both boys appear to be mature for their ages but I am not convinced that their level of understanding of the issues in this matter is sufficient that the Court should accede to their wishes in so far as those issues relate to the issue of contact being subject to their wishes.
Section 68F(2)(b)
I find that the children have a close and loving relationship with each of their parents.
I find that the antagonism between their parents has caused distress to all three children and that from their perspective it is the husband who has been more vocal in expressing his disapproval of the wife and causing her concern and distress.
I find that the children’s concerns in that regard have abated over recent time, probably due to the handovers occurring at the Children’s Contact Service, and I find that the children wish to maintain their excellent relationship with each of their parents.
Section 68F(2)(e) – “the capacity of each parent or any other person to provide for the needs of the child including emotional and intellectual needs.
I find that both parents have the capacity to provide for the children’s needs, including their physical needs, their emotional needs and their intellectual needs.
I find that the husband is perfectly capable of providing for the children’s needs in Port Augusta and other places, not just in Adelaide, and that capability extends to providing suitable bedding for the boys.
I find that the husband on occasion has some lack of insight as to the need to acknowledge the children’s views and to enable them to express those views clearly, but I find that the husband, perhaps as a result of this Court process, has considered that matter and is more likely to be amenable to listening to the children and considering the children’s wishes and views in the future.
I find that it is in the children’s interests to be able to celebrate their birthdays with whichever parent is caring for them at the time and that that parent will make the occasion special for all of the children.
There is no evidence to suggest that the wife is other than perfectly capable of providing for the children’s intellectual needs and it is clear from the evidence of the husband as to the activities that he likes to engage in with the children during contact visits that there is a broad range of activities and entertainments ranging from pure leisure and play to attendance at places such as museums, art galleries and the like which will benefit the children intellectually.
Section 68F(2)(h) – “the attitude to the children and to the responsibilities of parenthood demonstrate by each of the child’s parents”
This factor is relevant to the extent that each of the parents have I find taken the responsibilities of parenthood seriously and love all three children.
I find however that each of the parents have on occasions lacked insight as to the effect on the children of their attitudes to each other. That is indicated on the part of the husband by his lack of ability on occasions to appreciate the impact on the children of negative comments made about the wife or inappropriate involvement with the children as regards discussing adult issues, particularly pertaining to the question of contact. It is demonstrated on the part of the wife by what I find to be a significant level of discussion with the children about contact visits, what they eat on contact visits, what activities they enjoy on contact visits, who cares for them during contact visits and other similar issues, all of which can have no other message to the children other than that their mother is concerned about them attending on contact with their father and does not consider that they are well cared for by him. TR is certainly aware of his mother’s views.
I am satisfied that the husband has considered these issues and that he will use his best endeavours in the future to desist from behaviours that have caused distress to the children and to desist from the expression of negative attitudes about the wife to the children.
I am not so convinced that the wife has an ability to objectively consider her attitudes in this regard and to positively attempt to try and change those attitudes such that the children are not on occasion put in a position where their loyalties are divided.
Section 68F(2)(k) – ‘whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
In this matter I am of the view that this factor is important as I find that if I was to make contact orders subject to the wishes of the two boys other than an order that I intend to make in relation to J only, that the most likely outcome would be that further proceedings would be instituted as I am satisfied that ongoing problems would arise with respect to the issue of contact.
I am satisfied from the husband’s evidence and his demeanour in Court that if the boys had genuine reasons on occasion for not wanting to attend on contact and were willing to negotiate with him as to alternative times that he would be reasonable in that regard.
Section 68F(2)(l) – “any other circumstance that the Court thinks is relevant”
The issue of the husband being aware of the children’s residence arose during the trial and the wife is vehemently opposed to the husband knowing her address.
The inevitable consequence of the husband not knowing the wife’s address is that he is also unaware of the address of the children.
The children are already aware of the tense nature of the relationship between their parents.
The children are of an age where I find that it is not in their best interests to be any more involved in conflict than is necessary. I am concerned that if the children do not feel that they are able to discuss with the husband their current address and indeed are of the view that they must keep that secret from the husband, that it may have a negative impact on their relationship with the husband and their own sense of well being.
I am satisfied that the wife is sufficiently protected by a restraining order issued in the State Magistrates Court which prevents the husband attending at or near her premises.
I find that it would be in the children’s best interests for there to be an order that the wife keep the husband informed at all times of the children’s residential address.
Conclusion
Taking all of those matters into account I am of the view that contact should occur between the husband and all three children on a fortnightly basis and for one week during the April, July and September/October school holidays in each year and for nine days during the Christmas school holiday period in each year.
I am of the view that such contact should not be subject to the wishes of the children.
I find that it would be in J’s interests to have the ability to have additional contact with the husband and that such additional contact should be subject to his wishes. Such contact would enable J and the husband to undertake activities that are more appropriate to J’s age level and to develop a close father and son relationship.
Such a movement as regards TR may be also appropriate within the next two to three years.
I am of the view that the husband’s financial position is vastly superior to that of the wife and that he should continue to attend in Adelaide for all of the contact handovers which should take place either at the Children’s Contact Service or at the Wakefield Street Police Station.
I do not find that it is reasonable to expect the wife to travel to Port Augusta on occasions to collect the children.
I find that the special contact times sought by the husband with respect to Christmas and Easter and are reasonable and in the children’s interests and find that it is appropriate for telephone contact to remain in its’ current form.
As the father has conceded that he will agree to almost all of the terms and conditions sought by the wife in respect of contact, I will make the contact subject to those terms and conditions.
I accept the husband’s evidence that he does not have a semi automatic gun and will exclude that from the requirement of the wife that the husband ensure that his weapons are away from his residence during contact periods.
In light of the close relationship between the children and the father, their observed pleasure in his company and their express wishes to maintain that relationship as well as the husband’s obvious interest in the children and their well being, I am of the view that it is appropriate that the parents share in the long term responsibility for the children’s care, welfare and development.
It is clear that under the orders that I make the children will spend the majority of their time residing with the wife and I find for the matters set out herein that it is appropriate that the wife have the responsibility for the children’s day to day care, welfare and development.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of Mead FM
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