BM and PR
[2003] FMCAfam 331
•11 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BM & PR | [2003] FMCAfam 331 |
| FAMILY LAW – Children – parenting orders – contact – whether the mother should share the burden of transporting the children to and from contact – whether the appropriate handover point for contact should be closer to the father’s home – whether the father should be permitted to exercise contact at his home. |
Family Law Act 1975 (Cth), Part VII, 60B, 65E, 68F
| Applicant: | BM |
| Respondent: | PR |
| File No: | PAM1254 of 2003 |
| Delivered on: | 11 August 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 11 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Newnhams |
| Counsel for the Respondent: | Ms DeVere |
| Solicitors for the Respondent: | Wilson, Fardell & Moore |
ORDERS
All previous parenting orders in relation to JUDITH, born 4 August 1995 and STEPHEN, born 22 January 1997 (“the children”) be discharged.
The children live with the mother.
The father have contact with the children as follows:
(a)during school terms each alternate weekend from 6.00pm on Friday until 6.00pm on Sunday, or 6.00pm on Monday if Monday is a public holiday, commencing on 22 August 2003;
(b)for one week during each gazetted New South Wales school holiday period, other than the summer school holidays, being the first week in odd numbered years and the second week in even numbered years, commencing at 12.00pm on the Saturday first or second occurring after the conclusion of school and ending at 12.00pm on the following Saturday;
(c)during the summer school holidays, for three weeks during the first half of the holidays in odd numbered years, commencing at 12.00pm on the first Saturday following the conclusion of school, and ending at 12.00pm on the third Saturday, and in even numbered years for the second half of the holidays, commencing at 12.00pm on the third Saturday following the conclusion of school, and ending at 12.00pm on the last Saturday before the resumption of school;
(d)on Christmas Day, in even numbered years, from 12.00pm until 6.00pm, provided that such contact shall be taken within 50 kilometres of the mother’s home;
(e)on the children’s birthdays, if not otherwise a contact period, from 12.00pm until 6.00pm if on a weekend or during school holidays, and from 4.00pm until 7.00pm if on a school day
(f)on a weekend that includes Father’s Day from 6.00pm on Friday until 6.00pm on Sunday if it is not otherwise a contact weekend;
(g)by telephone any reasonable time, as agreed, but failing agreement, between 6.00pm and 7.00pm on Monday, Wednesday and Friday, to be initiated by the father telephoning the children;
(h)otherwise as agreed between parties.
Contact is suspended:
(a)on any weekend that includes Mother’s Day between 6.00pm on Friday until 6.00pm on Sunday;
(b)on Christmas Day in odd numbered years between 12.00pm and 6.00pm, provided that the children remain within 50 kilometres of the father’s home;
The mother shall have telephone contact with the children at any reasonable time that the children are on contact with the father as agreed, but failing agreement, every second day following the commencement of contact between 6.00pm and 7.00pm, to be initiated by the mother telephoning the children.
Contact pursuant to order 3(a) shall be taken at the home of the paternal grandmother during 2003.
Contact pursuant to order 3(a) shall be taken at the home of the paternal grandmother during first contact weekend of each month during 2004.
Unless otherwise agreed, contact pursuant to order 3(a) shall begin and end at home of paternal grandmother and the mother shall be responsible for delivering the children to and collecting the children from the paternal grandmother’s home.
Contact pursuant to order 3(d) and 3(e) shall begin and end at the home of the mother, and the suspension of contact pursuant to order 4(b) shall begin and end at the home of the father.
The handover point for all other contact shall be at the McDonald’s Family Restaurant, Katoomba, unless otherwise agreed.
The mother and the father share responsibility for decisions affecting the long term care, welfare and development of the children.
Each parent have the sole responsibility for decisions affecting the day to day care, welfare and development of the children during the periods when the children are in their care.
Each parent do all such things and give all directions and sign all such documents as may be necessary to ensure that the other receives copies of all school reports, school newsletters and parental advices, educational and/or other assessments including medical reports prepared in respect of either of the children promptly upon receipt by them or issue of same by the relevant school, educational authority, medical practitioner or otherwise.
Each parent promptly notify the other in the event of any significant illness or injury of the children occurring during such times as the children are in their care.
The father shall ensure that if he is unable to care for the children during any contact period, that the paternal grandmother or some other responsible adult known to the mother is available to care for them, or if no one available, the children shall be returned to the mother’s care.
THE COURT DECLARES THAT:
The Court considers it to be in the best interests of the children that they be known by their family name until they attain the age of 16 years.
THE COURT NOTES THAT:
The father has given the following undertaking to the Court:
If either of the children have a major sporting event or significant school or extra-curricular activity and they are in the care of the father, the father will ensure that the children are in Sydney to participate in such event.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM1254 of 2003
| BM |
Applicant
And
| PJ |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by the mother under Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”) for parenting orders in relation to two children, JUDITH, born 4 August 1995 and STEPHEN (not their real names), born 22 January 1997 (“the children”). The mother relies on her application filed on 17 September 2002, supported by her own affidavit filed on 16 July 2003, and the affidavit of her now husband, PM, filed on 16 July 2003. The respondent father has filed several responses in the proceedings. He relies today on an amended response filed on 14 July 2003, and on his own affidavit filed on 17 July 2003.
The parenting orders currently in force are those made by the Family Court on 19 May 1998. The Court dealt primarily with property matters. The parenting orders are orders 9 and 10, which awarded residence to the mother and provided in general terms for contact between the children and the father to occur for nine and a half hours per week. Those orders, it appears, worked successfully for approximately five years.
Two things have happened in more recent times to give rise to problems. One was that the father moved from Sydney to central western New South Wales to pursue employment as a solicitor. A second is that the mother remarried, and the father became concerned that he was coming under challenge in his parental role. These two factors have led to difficulties between the parents in relation to the management of the existing regime of contact and have brought the parties to the Court in order for the Court to make appropriate orders. There is no dispute that the children should continue to live with the mother.
There is also, in substance, no dispute that the children should continue to have contact with the father, generally on alternate weekends and for approximately half of the New South Wales school holidays, although there are issues in dispute between the parties as to where weekend contact should take place, who should bear the burden of transporting the children to and from contact, and what arrangements should be made over the summer school holidays and at Christmas, and at certain other particular times.
Parenting orders arise in proceedings under Part VII of the Family Law Act. Section 65E provides that, in determining the outcome, the best interests of the children is the paramount consideration. This is the overriding principle. Subject to that, s.60B sets out the objects of Part VII and the principles that underlie those objects. The four principles are:
(1)children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(2)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;
(3)parents share duties and responsibilities covering the care, welfare and development of their children; and
(4)parents should agree about the future parenting of their children.
These parents, as I have already noted, have been generally successful in managing on a cooperative basis the issue of contact over a six year period since separation. They have considerable strengths in both intelligence and commonsense, and they can draw on those strengths in the future. The difficulties that have arisen between them are relatively confined, and provided that clear and effective orders are put in place by the Court, it should, I hope, not be necessary for the parents to return to Court in the future.
It is, however, desirable that the Court put in place orders that are clear and effective in order to minimise the risk of future litigation being required. In determining what orders are in the best interests of the children, I must have regard to the factors set out in s.68F(2) of the Family Law Act. I will go through those factors briefly.
Section 68F(2) factors
The children’s wishes
We are dealing with children of eight and six years of age. Neither party has sought to dispute the fact that the children wish to spend time with both of their parents. In addition, I note that residence is not in issue and there is no serious contest about the father having liberal contact with the children.
Nature of the children’s relationships
Again, there is no dispute that both of the children have a warm and loving relationship with both parents. Under cross-examination the father expressed some doubt as to the strength of his relationship with his children, following the introduction of their stepfather into their lives, but the evidence before me supports the proposition that whatever may have been the impact of the introduction of the stepfather, the children's relationship with their natural father remains a strong, warm and loving one.
I also have evidence of a long and important relationship between the children and the paternal grandmother.
The likely effect of any changes in the children’s circumstances and practical difficulties and expense associated with contact
These are issues of some significance. They are related. It is here that the parties' proposals diverge. The mother's proposal is that the father should enjoy alternate weekend contact in the Sydney metropolitan area, and for one week during school holiday periods, other than Christmas, at which time she proposes a special arrangement.
The father proposes what might be called a more common arrangement of alternate weekend contact and half school holidays, to be exercised where he lives. Up to this point the father has been exercising contact on weekends in the Sydney area, generally at the home of the paternal grandmother, while he has also been taking the children on contact to his home during school holidays.
The issues before me are whether it is appropriate, in the children's best interests, for them to be taken from Sydney to the father’s home on alternate weekends, or whether that weekend contact should continue to take place in the Sydney area. In that connection it is appropriate to take into account the ages of the children, other commitments that they have, any problems that may be associated with travel, and the ties that the children have at the two locations.
The children are still relatively young. There is some evidence that the younger child, Stephen, becomes car sick, although that appears to have been a single occurrence associated with drinking milk while travelling. The distance between the parties’ houses involves approximately three and a half hours travel, which for young children is significant, although they may be able to sleep during some times when they travel.
The children have recently also developed sporting commitments in Sydney. There is an issue of whether it would be in their best interest to interfere with their performance of those sporting commitments. The father has given an undertaking that he would ensure that the children were in Sydney for major commitments but it would be unrealistic for them to travel to and from Sydney and the father’s home twice in a weekend. A further factor is that the paternal grandmother lives in Sydney, and the children are entitled to enjoy contact with their grandparents as well as with their parents. I would be concerned that the children may lose contact with the paternal grandmother if weekend contact were exercised at the father’s home, particularly in the short term. In my view, weekend contact in the father’s home should be phased in over time, so that the children can adapt to the change. For the time being weekend contact in Sydney should continue to be at the home of the paternal grandmother.
The father has to date borne the burden of travelling to exercise contact following his move. He has given evidence that he has found that travel increasingly burdensome, now he is working as a solicitor, and noting that this would require him to travel seven hours on alternate weekends on Fridays and on Sundays. Of course, the same burden would fall on the children. For children of this age the burden would be substantial.
However, the father's submission is that it is reasonable to expect children of this age to undertake travel on a regular basis in order to enjoy contact with the non-resident parent, and that it is also reasonable to expect the resident parent to share in the burden of ensuring that that contact takes place.
It is the father who chose to move from Sydney. However, that factor should not condemn the father to bearing the entire burden of travel until the children reach adulthood. The mother should share the burden of transporting the children on school holiday contact, and on special occasions such as the Father’s Day weekend. On weekends when the children have contact with the father in Sydney at the home of the paternal grandmother it would be appropriate for the mother to take them there, and to collect them. That would relieve the travel pressure on the father, in that it would not matter if he was a little late or, indeed, if he could not arrive until Saturday morning (or at all on a particular weekend). The paternal grandmother is well known to the children and it is entirely appropriate that the children enjoy weekend contact with her even if, on occasion, the father is unable to be there.
The capacity of the parents to meet the children's needs
I am satisfied that both the father and the mother have the capacity to meet the physical needs and also the emotional needs of these children. There is an issue about the father's availability to care for the children when he is working, given that he is only entitled to four weeks paid leave per year, and he would be seeking to have the children on contact with him for more than that time each year.
The father has given evidence that if he were unable to care for the children at any stage when he was exercising contact, he would arrange for his mother to come from Sydney to his home to assist, or he would arrange for some other adult person to care for the children. He has suggested that one of those persons might be his girlfriend. I have, however, not heard evidence about the parenting capacity of the father's girlfriend.
The children’s maturity, sex and background
I do not regard the children's maturity, sex, background, or other characteristics to be relevant inasmuch as no specific orders need to be made to take account of that factor.
The need to protect the children from physical or psychological harm
There is no issue of a need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour,
Family violence
There is no need to deal with any issue of family violence involving the children or any member of the children's family, and the family violence orders.
The attitude to the children and to the responsibilities of parenthood
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children's parents is not a significant factor, although there has been some suggestion that the father's response to the mother's application has been motivated by concerns personal to him and not bearing directly upon the welfare of the children.
The father has, in my view, been distressed by the introduction of the stepfather, and the threat, as he sees it, to his parental role. Whether that threat is more apparent than real is hard to say, but I accept that in any such circumstance the introduction of a new partner of the former spouse is a challenging event emotionally for the other parent. I also accept that there is some evidence that the mother's husband has been insensitive in his dealings with the father, so as to give rise to some concern in the father's mind.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
This is an issue of substance, bearing in mind that we are dealing with intelligent and responsible people who should be able to deal with parenting issues outside a court, and who have been able to do so until recently. Litigation is an expensive exercise, and the Court should do what it can to assist the parents to avoid the need to return to Court if at all possible.
Any other fact or circumstance that the Court thinks relevant
I note in this regard that the father has sought a number of specific issues orders in relation to the family name by which the children are known, the provision of information about their schooling and medical issues, and also whether the mother should be restrained from encouraging the children to call their stepfather “dad” or “daddy”. That concern of the father's is related to his concern generally about the introduction of the stepfather into the children's lives. The father, of course, has no right to interfere with the mother's decision to re-partner, and the stepfather has his own role to play in the children's care, welfare and development.
That said, it can be confusing for young children to be confronted with alternate fathers, and it can be confusing for them to have to deal with alternate family names. The mother gave evidence that she has no intention of changing the children’s family name unless the children want to. I have no evidence that the children want to change their family name. Some guidance by the Court in that regard, in this matter, is, in my view, appropriate. I propose to make a declaration to reflect what is in the children’s best interests, which is to maintain the status quo until the children can make a mature decision. I do not think that it would be feasible to make effective orders in relation to the use of the term “dad” or “daddy” by the children, but I do point out for the benefit of the parties that it would be of concern to the father to have the children refer to their stepfather as “dad” or “daddy” in his presence or hearing, and it may be confusing for the children to refer to their stepfather by his Christian name on some occasions and “dad” or “daddy” on another occasion. The children had been calling their stepfather by his Christian name before he and the mother married.
In order to minimise the risk of confusion and to minimise the risk that both the father and the children will be distressed, it is, in my view, advisable that the children address their stepfather by his Christian name until they are at an age where they can make a mature decision about the most appropriate name to call him. However, I do not propose to make any order about that matter.
The father sought other orders, including that the mother not be permitted to relocate, and that the mother encourage and foster the children to develop the relationship with their father. Having regard to the evidence before me, I do not think that any orders are called for to deal with those issues. The mother has no intention of relocating and has been fostering the relationship between the children and the father, and others.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 August 2003
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