BMD & MHM
[2006] FMCAfam 314
•23 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BMD & MHM | [2006] FMCAfam 314 |
| FAMILY LAW – Parenting – mother seeks to vary final parenting orders made 2002 – child aged 8 – parties living over 2 hours apart – child travelling to father’s home 3 out of 4 weekends – practical issues. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | BMD |
| Respondent: | MHM |
| File Number: | SYM 2400 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 19 & 20 June 2006 |
| Date of Last Submission: | 20 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms D Black |
| Solicitors for the Applicant: | John R Quinn & Co. |
| Counsel for the Respondent: | Mr A Ladopolous |
| Solicitors for the Respondent: | Fairfax Lawyers |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
Emily (not her real name) born 3 November 1997 live with the mother.
Emily live with the father:
(a)Each alternate weekend from 6.00p.m on Friday until 6.00p.m on Sunday, or Monday if a public holiday;
(b)For one half of the Christmas school holiday period and one half of two of the three short school term holiday periods as agreed between the parties but failing such agreement, for the first half of each of these school holiday periods in odd numbered years and the second half of each of these school holiday periods in even numbered years;
(c)For a 10 day period in one of the three short school term holiday periods as agreed between the parties, but failing agreement, in the school holiday period at the end of second term; and
(d)At any other or alternate times as agreed between the parties.
Emily have contact with the father from after school (or later by agreement with the mother) until 7.30p.m on one afternoon in each alternate week, being the week immediately prior to the non-residence weekend, precise day to be agreed between the parties at the end of each school holiday period for the school term about to begin, but failing such agreement, on Thursdays provided that:
(a)The father notifies the mother by telephone or email no later than 7 days prior to the contact period of his intention to exercise such contact; and
(b)On the mother’s advice to the father as to details of the activity, the father ensures Emily’s attendance at any extra curricular activity she is involved in on that afternoon.
Weekend residence periods be suspended in school holidays and resume on the first weekend of the new school term if Emily spent the first half (or part) of the holidays with the father and on the second weekend of the new school term if Emily spent the second half (or part) of the holidays with the father.
THE COURT FURTHER ORDERS BY CONSENT THAT:
The parties have joint responsibility for making decisions concerning Emily’s long term care, welfare and development.
Changeover to take place at Lidcombe Railway station (not the real location), unless otherwise agreed between the parties.
Emily at all times have liberal telephone contact with the party with whom she is not living but each party cause Emily to telephone the other party at least twice per week when Emily is on holidays with that party.
In the event Father’s Day falls on a non-residence weekend, Emily to reside with her father on the Father’s Day weekend instead of the following weekend.
In the event Mother’s Day falls when Emily is living with the father, the father’s residence period be suspended on that weekend, and Emily live with the father on the following weekend.
The father be at liberty to forward letters, email, mail and any items to Emily and the mother hand same to Emily, unopened.
In the event Emily wishes to participate in a school sport when in secondary school each party ensure Emily is taken to her sporting game on Saturday as required by the school.
In the event Emily is required by her secondary school to attend an event on a weekend, each party to ensure Emily attends that event.
The father and the mother each provide the other with a contact number and address during periods when the other party has holiday contact with Emily.
The parties not move from where they live without forthwith furnishing the other with written notice at least two weeks in advance of the change of address and telephone numbers where they can be reached.
The father be at liberty to liaise with Emily’s school directly in relation to obtaining copies of all school reports, circulars and any other document relating to Emily’s schooling.
The mother provide the father with suitable clothing for Emily for such times as Emily lives with the father and the father return the clothing to the mother in an undamaged state when Emily is returned to the mother.
Each party immediately notify the other if Emily is seriously ill or is to be admitted to hospital at such times as Emily is living with that party and each party be at liberty to talk to relevant medical practitioners in relation to Emily’s diagnosis and treatment.
Each party be restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of Emily.
If either party wishes to travel overseas with Emily for a period not exceeding six weeks:
(a)That party shall notify the other not less than one month prior to the holiday of such intention and the other party shall not unreasonably withhold their consent to the parent taking Emily overseas;
(b)The travelling parent to provide to the other parent a detailed itinerary one week prior to departure; and
(c)Upon that parent’s return to Australia, the other parent shall have compensatory time with Emily to compensate him or her for any periods of residence missed while the child was overseas.
IT IS NOTED that the father has no intention of leaving Emily in the care of Ms Angela Brown (not her real name).
THE COURT FURTHER ORDERS THAT:
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 2400 of 2006
| BMD |
Applicant
And
| MHM |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for Emily (not her real name) aged 8½ years. The parties agreed on final parenting orders on 5 July 2002 when Emily was 4 years old and before she started school. Those orders provided for Emily to live with the father 5 nights each fortnight until she started school and thereafter for Emily to live with the father on 3 consecutive weekends from 6 p.m. Friday until 6 p.m. Sunday and otherwise with the mother. The existing orders do not provide for Emily to have periods of block holiday contact with each parent in her school holidays. Although the mother has taken Emily overseas for 6 weeks or more, the orders provide for Emily to spend from Sunday night until Friday night with the father in each week of every school holiday period and weekends with the mother. When Emily is with the father during her school holidays, she spends some days in holiday care while the father is working. The mother does not work in school holidays.
The mother now seeks to change these arrangements for both weekends and holidays. The father agrees to a change in the school holiday arrangements to enable Emily to spend block time with each of them, but does not agree to a change in the weekend arrangements.
The father lives in the former matrimonial home in Kurrajong Heights (not the real location) in the Hawkesbury region. Although his partner and her 4 year old son, Samuel (not his real name) are staying with him temporarily, the father says he and his partner have not committed to a long term relationship. The mother lives with her husband and their son, Adam (not his real name) aged 15 months, in Newtown (not the real location) an inner Sydney suburb.
Each party agrees that Emily’s usual travel arrangements are as follows:
a)On Friday evenings, 3 weeks out of 4, Emily is accompanied by her mother and usually Adam when travelling to meet her father. Emily travels by bus from her home in Newtown to Central Station and then by train to Blacktown Station (not the real location) a trip of up to 2 hours. Her father collects Emily in his car from Blacktown Station and drives approximately 50 minutes to their home in Kurrajong Heights. The trip from Newtown to Kurrajong Heights takes approximately 2 and a half hours.
b)On Sunday evenings, 3 weeks out of 4, the father drives Emily to Burwood (not the real location) and the mother collects her there by car. A trip which takes over 1 and a half hours.
c)During holidays, Emily travels to and from her father by car with changeover at Blacktown, a trip of up to 2 hours each way.
The mother asks that Emily spend alternate weekends with the father and half school holiday periods. The father asks that Emily continue to spend 3 out of 4 weekends with him, 10 days in each short school holiday period and at least half Christmas school holidays. The parties have been able to reach agreement on changeover arrangements and specific issues orders.
The mother says Emily is struggling with the travel arrangements between Newtown and Kurrajong Heights and wants more weekend and holiday time in her Newtown home, as well as the opportunity to spend time with her school friends on weekends. The mother says she initiated these proceedings for Emily’s benefit. The father says any reduction in Emily’s time with him will adversely affect their strong attachment to each other and will diminish his opportunity to expose Emily to a different lifestyle and different approach to life than Emily experiences with her mother.
In her report, Ms Marriott, the family reporter, recommended that Emily spend 3 out of 5 weekends with the father, as Emily suggested to her at interview. However, at hearing, Ms Marriott recommended Emily spend alternate weekends with her father, and perhaps slightly more than half school holidays. Ms Marriott said the travel was tiring and stressful for Emily and will become more onerous as she gets older.
The mother is 35 and the father 46. They started living together in February 1991, married in December 1992, separated in March 2001 and divorced in September 2002. Emily is the only child of their relationship. The parties lived in Kurrajong Heights from November 1993 until separation when Emily was just over 3. The father remains living in that home. The mother has lived in the Newtown area since late 2001 and with her now husband John Robertson (not his real name) since 2002. Emily is happy and settled in Year 3 at Gumnuts Public School (not its real name) and has close friends living near to her Newtown home.
The mother works two half-days a week as a teacher at the Macquarie University (not the real place). She starts part- time work at the Sydney University (not the real place) next semester. She is also an artist and will be exhibiting in the city. Mr Robertson is a cinematographer. The father works full- time as a counsellor/social worker at Windsor (not the real location). He tells the court he has some flexibility in his usual working hours of 9a.m. to 5 p.m. on weekdays.
Issues for determination
The court must decide what parenting orders are in Emily’s best interests which requires consideration of these questions:
a)What are Emily’s wishes and how much importance should the court give those wishes?
b)What is the nature of the relationship between Emily and each parent and other people in her life?
c)What is the likely effect of any change in Emily’s circumstances?
d)What are the practical difficulties of Emily having contact with both parents?
e)What is the capacity of each parent to provide for Emily’s needs?
f)Does Emily need to be protected from physical or psychological harm?
g)What attitude has each parent shown to the responsibilities of being a parent?
h)What parenting arrangements would minimise the risk of there being further court proceedings about Emily?
Emily’s wishes
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The mother says she commenced these proceedings to vary the existing orders because Emily has been telling her she wants more time in her Newtown home, less travel and more time with her friends. The father says he accepts that when Emily expresses a view, that is her view at that time, but he finds Emily’s wishes difficult to assess.
Ms Marriott says Emily clearly communicated to her that the travel is tiring and onerous for her and she wants less of it. She also wants more time with her mother. Emily proposed very definitely that she go to her father on 3 consecutive weekends and stay with her mother for 2 consecutive weekends, a 5 week roster during school terms. Emily told Ms Marriott she wanted this proposal recorded for the Court despite her belief that her father would be upset about it. This, in Ms Marriott’s view, is Emily’s best effort at not causing either party too much distress. Emily, at aged 8, is trying to sort out the problem as best she can.
The mother deposes to Emily saying to her after the interview with Ms Marriott:
I love you so much Mum. Now everything is going to be okay. I’m going to be with you more.
About a week later Emily came to her mother in tears and said:
Mum, I’ve wrecked up everything. I’m so, so stupid. I said the wrong days to the Court lady and now it can never be fixed up.
Having been told about this conversation, Ms Marriott says Emily would be more comfortable with alternate weekends. She needs more time with her mother. Ms Marriott made these comments in cross-examination she is more comfortable at home at the moment with her mother; she is “part of a family”; “when she sees her father she is going away from the hub of her life”. When asked to draw her family, Emily drew her mother, brother and step-father. Ms Marriott does not accept she chose to draw her Newtown family because she came to the interviews from her mother’s home. In Ms Marriott’s experience it is unusual for a child not to draw both sides of her family, but Emily was adamant, saying “No, I’m just going to draw that.”
Ms Marriott made this observation:
Although not of a mature age, she is capable of making realistic observations and has obviously given her situation a good deal of thought.
I am persuaded Emily has expressed a wish to spend more time with her mother in her Newtown home and to have less travel. I give this finding considerable weight.
Nature of relationship between Emily and each parent and others in Emily’s life.
Ms Marriott observed Emily to have a strong and loving relationship with both her parents. She says in her report:
Emily is accustomed to shared residence, however like many children her age she probably has a closer attachment to her mother and feels the need for some stability…. Her wish was to see her mother and brother “a bit more often”.
Emily adores her baby brother Adam. She enjoys a close relationship with the mother’s husband John, John’s parents and his adult sister Sophie. The mother says Emily is included in the extended Robertson family gatherings and John’s parents participate in Emily’s care, school events and take her on special outings. Emily asks to spend time with them. Emily also loves to visit her maternal grandparents who live on a farm outside Canberra. There she can play with the animals, feed the cows and cook with her grandmother. Emily tells Ms Marriott she gets on well with the father’s partner and her son, although she objects to having to share a room with Samuel at present.
The strength of Emily’s relationship with each parent is not at issue in these proceedings.
Effect of change in Emily’s circumstances.
On the mother’s proposal, Emily would have less time with her father, and more time with her mother, step-father and brother. I accept Ms Marriott’s view that a reduction in time with her father will not adversely impact on Emily’s relationship with her father, nor will it impact on Emily’s ability to understand her father’s perspective on life and lifestyle. At present, Ms Marriott says their time together is spoiled to an extent because of all the travel involved for Emily. I accept Ms Marriott’s view and take these factors into account.
Practical difficulties
This is a significant issue in these proceedings. The mother initiated the proceedings in the hope of reducing the burden of travel on Emily. In Ms Marriott’s view, Emily is uncomfortable with the travel and wants less of it. Ms Marriott says “for the comfort of the child, every alternate weekend would be better.”
I find the father holds a rigid view as to the amount of time Emily should spend with him. Consequently, he avoids giving serious consideration to the impact on Emily of so much frequent travel and is unwilling to consider the issue from Emily’s point of view. He was not prepared to concede in his affidavit evidence or in cross-examination, that travelling two and half hours one way and over one and half hours the other on Friday and Sunday nights 3 weekends out of 4 is an onerous commitment for a child of 8 years.
I am satisfied Emily finds travelling to Kurrajong Heights 3 weekends out of 4 onerous, tiring and at times distressing. This is a factor to which I give significant weight in reaching my decision.
Capacity of each parent to provide for Emily’s needs.
Neither party was critical of the other’s capacity to care for Emily and I find both parties play a substantial role in her life and have demonstrated the capacity to provide for Emily’s physical and intellectual needs. Each party offers Emily a varied day to day life involving healthy social interactions and a wide range of activities. The mother deposes to Emily enjoying regular family dinners, multicultural eating experiences, trips to beaches, art galleries, museums and bike rides. She says Emily has a much loved cat called ‘Cuddles’ (not its real name). The father deposes to Emily enjoying a different lifestyle at Kurrajong Heights. The house is on a large block with herbs, flower and native gardens. It backs onto a National Park. He says Emily invites people to dinner, plays with her friend Jane (not her real name), stages theatrical events with her friends, reads, roller skates, rides her bike, canoes, picnics and bush walks. Together he and Emily attend community events and have family dinners with Emily’s grandmother and extended family. The father says he understands Emily needs her own space and is not enjoying sharing a room temporarily with his partner’s 4 year old son, but says in a few weeks she will have her room to herself again.
In regard to Emily’s emotional needs, I find the mother has the greater capacity to respond to Emily’s feelings and concerns. Emily told Ms Marriott her mother would accept her proposal “if it’s what she knew I really wanted.” The mother says she just listens to Emily when Emily tells her something which is upsetting her, but tries to help her achieve something if it is clear Emily feels very strongly about it. For example, if Emily has a special friend’s birthday party which falls on a contact weekend, the mother will suggest Emily asks her father about it.
I do not accept the father’s assertion that he always considers Emily’s needs. I find the father has poor insight into her needs. I find the father sees the situation very much from his own perspective, without appropriate regard for Emily’s feelings and wishes. When Emily’s wishes do not coincide with his own the father claims Emily has been “coached” by the mother. I am not persuaded the mother coaches Emily. I find the mother focuses on what is best for Emily. I find the father’s focus is on his own needs “I want Emily with me in her home environment”, “it is very sad to be losing time with Emily”, “it caused me grief not to have my daughter with me all the time.”
Although willing to consider some weekday contact in the Newtown area, the father found such a proposal of limited value to him. Given his obvious love for Emily, I find it puzzling that the father has made almost no effort to participate in her schooling or to attend events important to Emily, in which she has participated. The father says he has had difficulty communicating with the school but seems to have taken few steps to resolve the problem. His position is rigid and he seems incapable of interpreting events except from his own perspective. By way of example, the father said Emily had never been travel sick nor complained of feeling sick when travelling, therefore rejecting the truth of Emily’s comment to Ms Marriott that she sometimes finds the frequent travel to and from Kurrajong Heights onerous, and feels sick at times. The father is adamant that Emily should have more than alternate weekends with him and will not contemplate any other arrangement, whatever the impact on Emily.
I am not persuaded the father is listening to Emily. The mother described Emily’s extreme distress when begging her father over the phone to allow her to attend an audition for the Australian Youth Choir. The father says “I was in a position that was very difficult” rather than appreciating the difficulty of Emily’s position. The mother says she has been unable to negotiate with the father successfully when Emily has wanted to attend something special in the father’s time, even when the mother has suggested the father take Emily to the event. She deposes to the father saying words to this effect:
Don’t tell me what to do and don’t interfere with my time with my daughter.
Emily’s need to be protected from physical or psychological harm.
The father says the civility in his relationship with the mother has broken down in the last 2 years. The mother says she has no communication with the father on contact changeover to avoid being denigrated. I accept Ms Marriott’s view that Emily is adversely affected by her parent’s inability to communicate and her perception that she carries the responsibility to please them both. The father described Emily asking for his reassurance that he would not call the police if she was not at changeover in accordance with the orders. Shortly after Emily knew her father had been served with process in these proceedings, Emily said to her father “don’t be angry with Mum because it’s not her fault, it’s what I wanted. I said it to mum. I want to spend more time with mum.” Emily declined to choose between her parents when interviewed, telling Ms Marriott she would take an aunty with her on holidays. In Ms Marriott’s experience, this conflictual situation between her parents may one day result in Emily rejecting one parent to relieve her stress. This may or may not occur whatever parenting arrangements I now order, so this is not a factor to which I give more than minimal weight.
The attitude each parent has shown to the responsibilities of being a parent
Each party acknowledges the importance of the other parent in Emily’s life, although they are unable to relate to each other.
The mother says she tries to give Emily opportunities to develop her skills but because she spends most weekends with her father, it is impossible for Emily to participate with her friends in a range of activities. Emily has been involved in gymnastics, choir, the school band, learning trumpet but only during the school week. She wants to try hockey. She has a talent for drama and wants to attend classes. Both hockey and drama occur on weekends. Although Emily attends roller skating lessons with her father, most of her formal activities centre around her school.
The father fears his role will be diminished in Emily’s life if the amount of time she spends with him is reduced. He wants his role as a caring and committed parent properly recognised. Yet I am not satisfied the father has considered all the different ways he could participate in Emily’s life without her necessarily being with him at Kurrajong Heights. The mother says Kurrajong Heights is isolated and once children are 11 or 12, there are very few activities for them. As previously noted, the father has taken no part in her school life and rarely attends her special events with her. The father could take a much greater role in her school life. Again, I find the father’s attitude on this issue uncompromising and unhelpful to Emily and a difficulty for him in this case.
The arrangements which would minimise the risk of there being further Court proceedings about Emily.
I find if Emily spends less time travelling and more time with her mother, near her school friends, there is less likelihood of further proceedings between the parties. If the arrangements are left during school terms as they are presently, I find it probable that in the foreseeable future, Emily would either refuse to go to her father on every contact occasion, leading to an application for contravention by the father, or Emily would cause her mother to bring another application for variation.
Conclusion
The mother wants Emily to see her father regularly each alternate weekend and for half of each school holiday period. In the mother’s view, Emily is under too much pressure and needs a simpler life. The mother strongly believes her proposal will work better for Emily who wants to pursue her many interests and spend time with her school friends from her home base. The mother says Emily needs leisure time and holidays with her Newtown family. Since the orders were made in 2002, Emily has spent limited time with the mother in the holidays which has restricted Emily’s opportunities to spend time with her school friends and those members of her mother and step-father’s extended family so significant in her life. I accept the mother’s evidence that she has always had concerns about the level of stress on Emily coping with the existing orders.
The father is adamant Emily should spend 3 weekends out of 4 with him. The father says Emily would lose her close ties with her friends in the Hawkesbury area if she spent only alternate weekends with him. He opposes Emily’s suggestion of 3 out of 5 weekends because “I … would regularly not see Emily for 19 day stretches. I would find this very difficult”. The father does not acknowledge Emily suffers any hardship having to travel so far so frequently. He talks of the burden he says he bears “of well over half the travel time” but not of Emily’s burden. As already said, I find the father’s uncompromising stance is about his needs rather than Emily’s.
I accept the father’s evidence that Emily refers to two homes, and she treats his home as her own. He says he would welcome her friends to visit Kurrajong Heights. Emily had friends from Newtown to her birthday party at Blacktown last year, and her friend Sophie spent the rest of the day with her at Kurrajong Heights. In Ms Marriott’s view, Emily will always see herself as having two homes, one at Newtown and one at Kurrajong Heights. This will not change with a reduction in time spent with her father. Ms Marriott believes Emily would benefit from her father coming to her school at time for school events and from the father collecting her from school and spending some time on some afternoons.
I understand the father’s wish to have Emily feel the same sense of home at Kurrajong Heights as she does at Newtown. I have heard his strongly held belief that if Emily spends less time at Kurrajong Heights, her sense of that place being home will be lost or at least diminished. The father is unrealistic in his view that Emily can maintain two homes of equal strength. With her school at Newtown, her friends and associated social life will inevitably be based there. It is unlikely that her school friends will regularly travel out to Kurrajong Heights except to enjoy holidays with Emily.
I agree with Ms Marriott that if the Court compels Emily to keep travelling as at present, it is likely to have a negative, rather than positive impact on her relationship with her father. In effect, by insisting on a rigid and onerous travelling commitment by Emily, the father is in danger of destroying the very thing he clearly wants to maintain - a loving father-daughter relationship. I sincerely hope that these proceedings will not cause the father to adopt an increasingly entrenched and dogmatic position. Rather that he has now been alerted to the clear need to be more flexible towards and understanding of his daughter’s wishes. If he can achieve this change in his attitude, there seems a good prospect of a constructive and harmonious relationship between all parties.
I am satisfied that the Orders set out at the commencement of these Reasons are in Emily’s best interests.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 23 June 2006
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