Bowyer and Bowyer
[2007] FamCA 294
•19 February 2007
FAMILY COURT OF AUSTRALIA
| BOWYER & BOWYER | [2007] FamCA 294 |
| FAMILY LAW – CHILDREN - PARENTING – Final – Time with father – Constraints of employment and loss of licence |
| Family Law Act 1975 (Cth) |
| FATHER | Mr Bowyer |
| MOTHER | Mrs Bowyer |
| FILE NUMBER: | MLF | 11520 | of | 1999 |
| DATE DELIVERED: | 19 February 2007 |
| PLACE DELIVERED: | Albury |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 19 February, 2007 |
REPRESENTATION
| COUNSEL FOR THE FATHER | Mr Harper |
| SOLICITOR FOR THE FATHER | Pogson Cronin. |
| THE MOTHER | In person |
Orders
That all previous parenting orders and injunctions in respect of the child of the marriage, a son born in July, 1996 be discharged.
That the child live with the mother.
That the child spend time with the father as follows :
(a)during school terms :
(i)until the father obtains a driver licence :
(A)in each alternate week, from the conclusion of school on Thursday until 5:00 pm. on Sunday, such time to recommence on the first weekend of each school term; and
(B)in each other alternate week, from the conclusion of school on Thursday until 5:00 pm. on Friday or, if the child’s soccer starts earlier than 5:00 pm., the commencement of the soccer;
(ii)from the time the father obtains a driver licence and provides a copy of it to the mother :
(A)in each alternate week, from the conclusion of school on Thursday until the conclusion of school on Monday (or if Monday is not a school day, 5:00 pm. on Monday); and
(B)in each other alternate week, from the conclusion of school on Thursday until 5:00 pm. on Friday or, if the child’s soccer starts earlier than 5:00 pm., the commencement of the soccer.
(b)for one half of the mid-year and September/October short term school holiday periods as agreed between the parties or, failing agreement, from 10:00 am. on the first Saturday until 10:00 am. on the following Saturday;
(c) for one half of the Easter school holiday period to include the period from 5:00 pm. Easter Thursday until 5:00 pm. on Easter Monday in 2007 and each alternate year thereafter;
(d) in 2007 and each alternate year thereafter, for three weeks commencing on 19 December, 2007;
(e)in 2008 and each alternate year thereafter, for a maximum period of three weeks commencing on 10 January and concluding :
(i)if school commences within the three week period, at 12:00 noon on the last day of the school holiday period; or
(ii)otherwise at 12:00 noon on the last day of the three week period.
(f) if the child’s birthday falls on a day when he is not otherwise with the father, for four hours on his birthday;
(g) if the father’s birthday falls on a day when the child is not otherwise with the father, for four hours on the father’s birthday.
(h) if Fathers’ Day falls on a weekend when the child is not otherwise with the father, for four hours on Fathers’ Day;
(i) from 4:00 pm. until 8:00 pm. on any Christmas Day on which the child is not otherwise spending time with the father pursuant to these orders; and
(j) such other times as may be agreed between the parties.
That notwithstanding anything to the contrary in these orders the child spend time with the mother as follows :
(a)if the child’s birthday falls on a day when he is not otherwise with the mother, for four hours on his birthday;
(b) if the mother’s birthday falls on a day when the child is not otherwise with the mother, for four hours on the mother’s birthday.
(c) if Mothers’ Day falls on a weekend when the child is not otherwise with the mother, for four hours on Mothers’ Day;
(d) from 4:00 pm. until 8:00 pm. on any Christmas Day on which the child is not otherwise spending time with the mother pursuant to these orders
(e)for one half of the Easter school holiday period to include the period from 5:00 pm. on Easter Thursday to 5:00 pm. on Easter Monday in 2008 and each alternate year thereafter.
That both parents do all things reasonably necessary to facilitate telephone contact between the child and the parent with whom the child is not then living or spending time as requested by the child and, in any event, on each Tuesday and Thursday evening between the hours of 6:00 pm. and 7:00 pm.
That the parties jointly maintain a communication book to be exchanged at changeovers in which they advise the other party in writing of issues which may arise regarding the day to day well-being and welfare of the child.
That each of the parties be and is hereby restrained from denigrating the other party, the relatives of the other party or any current or future partner of the other party in the presence or hearing of the child and from allowing any other person to do so.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.65DA(2) and s.62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the reasons for judgment this day be transcribed and copies made available to the parties.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
| FAMILY COURT OF AUSTRALIA AT ALBURY |
FILE NUMBER: MLF 11520 of 1999
| MR BOWYER |
Father
And
| MRS BOWYER |
Mother
REASONS FOR JUDGMENT
The parties separated in August 2005. They married in February 1996 after living together from late 1994. They have a son who is 10. Theirs was a volatile and conflicted relationship, and aspects of the hostility have not abated. They have difficulties in communicating directly and have needed to use third parties. Problems were exacerbated by the father losing his driver's licence in September 2005 for two years, for the most recent of what he referred to as “several” convictions for drink-driving.
The mother retains concerns about his drinking. She alleges a pattern of angry and aggressive behaviour after drinking. In the husband's affidavit there was a muted concession of some inappropriate behaviour in those circumstances.
The mother’s perception is that the father wants arrangements to suit him and those around him, and is not focused on the child’s best interests. For his part, the father alleges the mother has not fostered his relationship with the child, that she made it difficult for him to see the child after separation, and that her objections are not genuinely based but are designed to limit his relationship with the child.
Both parties have said they are prepared to use a communication book, which is an optimistic sign. On at least one occasion, perhaps not without some difficulty, they did arrange some make-up time when the child was not able to go with his father on a particular date, which is another optimistic sign.
The mother has two other children from an earlier marriage. H is 16 and M is 15. They were seen by Ms D when she was preparing the family report and their statements to her confirm other evidence that family life prior to separation was difficult and unpleasant. Not only were they exposed to family violence between the parties but on occasions H and M removed the child from the house and, with him, sought assistance from a neighbour and from police. I doubt that reading that brought much happiness to either party; it is a stark illustration of the devastating effect on children of parental conflict and violence.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
EVIDENCE
The mother relied on her amended application and an affidavit sworn by her, both filed on 31 January. The father relied on an amended response and an affidavit sworn by him on 29 January. Some additional evidence was adduced during the trial. The court has before it a report from Ms D. Neither party sought to cross‑examine Ms D. I note a comment of the mother in one of her documents that she did not agree with Ms D, and that she did not seek to cross‑examine her as she is “not a lawyer”. I do place weight on Ms D's report.
ISSUE
The ambit of dispute narrowed significantly in the lead-up to the trial and even after the callover a week or so ago. The parties, much to their credit, have agreed on a number of parenting orders. The sticking point is the question of the time the child is to spend with his father during school terms. The father seeks that the child be with him from Thursday after school until 5 pm. Sunday in the first of each two weeks, and from Thursday after school until 9 am Saturday in the other.
The mother put forward a number of options, none of which was consistent with the arrangement sought by the father. Her primary submission was that the child should live with his father from after school on Thursday until the end of the school day on Tuesday in each second week, being a block of five nights. As an alternative, she proposed that in one week he live with his father from Thursday to Sunday as sought by the father, and spend an additional one or two nights in the other week, whether Sunday to Tuesday, or Monday to Tuesday. None of those proposals appealed to the father. In those circumstances it is a matter for the court to decide.
PARTIES’ CIRCUMSTANCES
I will say something briefly about matters raised as having practical relevance to the orders the court should make. The mother is in paid work from 9.00 am. to 5.30 pm. on Monday, Tuesday, Wednesday and Friday, and from 8.30 am. to 5.00 pm. on Thursday. The father is in paid work from 6 am to 4 pm, Monday to Thursday; that is, he is not employed on Friday. He works at J, which is about 10 minutes from his home by car. Having lost his licence for drink-driving in September 2005, he cannot drive to work and has been relying on work mates to collect him and drive him there. It is an early start.
The father lives in a four-bedroom home. Also resident in that home is a friend, Mr A, who has been there for some 18 months; the husband’s evidence is that he, too, starts work at 6 am. The husband's brother, S, has been living in the house for a couple of months whilst he gets himself re‑established, having relocated to the Albury/Wodonga area from, as I understood the father's evidence, Queensland. He has children in Brisbane and in rural New South Wales, from two relationships; none of those children is in the Albury/Wodonga area at this time, so obligations to them are not a factor to be considered.
The father is in a relationship - he described them as “just very good friends” - with Ms T. That has been the case for about the last eight months. The father’s partner has two children; K is 10, and J is eight. The father’s evidence is that she and her children stay at his home when the child is there at weekends. She does not stay on the weekends when the child is not with the father. She has spent time with the father and the child during school holiday contact in January this year, and during some weekends time away. The father's evidence establishes that her contact with the family is very much dependent on whether the child is or is not with his father. Mention has also been made of the fact that the child plays soccer on Friday nights. It is a matter I take into account, but it is only one aspect of his busy life and it is not the most significant factor in the trial.
The mother's evidence is that the child has complained that the father’s partner has hit him, that he is unhappy about her children being around, and about having to sleep on the couch when she and her children stay, and that he is sick of her. The father's evidence is that whilst there might have been an unhappy occasional murmur from the child about the other children’s presence, he knows of no significant complaint to that effect, or of a complaint about being hit by his partner.
I accept the mother's evidence that the child made these complaints to her. It would not be unusual for a 10-year-old only child to be disgruntled at sharing his father with other children, and with a partner. Separated parents have to cope with the ramifications of introducing new friends into their children's lives. There is no evidence the father’s partner will be living full-time at the father's home and no doubt the father has reasons for inviting his partner and her children to live there when he has the child.
Alcohol
I do not focus on the allegation about the husband’s use of alcohol to the exclusion of other matters, but alcohol is the issue referred to by Ms D's report as an important one, and is addressed in both parties' affidavits. The father's evidence is that he did drink to excess in the early years of the relationship. He deposed that for a short time after the parties’ separation in 1994 he also drank to excess but that he has "currently no issues" in relation to excessive use of alcohol.
The mother is sceptical of the husband’s evidence. She deposed to being able to smell alcohol on occasions he has arrived to collect the child, and that after an unhappy phone call on 14 January, the child sought to explain his father's upsetting behaviour by saying that he thought his father had been drinking.
In the witness box the father was candid. His evidence was that he can only afford to buy one slab of beer a week. Asked what he drank, he said eight stubbies after work on a Thursday night, eight more on Friday and the other eight in the course of Saturday and Sunday. Speaking of the time the child was with him, he said that he either did not drink or, if he did, would drink one or two stubbies only. Assuming he is telling the truth, that suggests he has thought it appropriate to modify his usual drinking pattern when he is the parent responsible for the child.
I am not sure if the father has thought through the ramifications of the orders he seeks on that pattern of drinking. His proposal would have the child living with him during school terms on Thursday, Friday and Saturday nights in one week, and Thursday and Friday nights in the other. Those are the evenings on which he would routinely be drinking. If he were not to drink, or drink only one or two stubbies on those nights (as opposed to eight on a normal Thursday and Friday, and, say, four on Saturday) that would be a radical change in his drinking. In any event, that is the father’s proposal. He also told me he went to AA for a period about six years ago, indicative of alcohol abuse then.
Ms D suggested an alcohol assessment and a treatment program, if one were recommended in that assessment. There is no evidence of any such assessment; I can say nothing about that. I can say that long experience in this Court and in the criminal jurisdiction of another Court teaches that people with multiple drink-driving convictions usually have a drinking problem. That does not mean that a person with such convictions cannot address the problem and change the way he or she lives, and it is to be hoped that the father is doing that. He needs to realise that if he faces another drink-driving charge and is convicted, he may be imprisoned; gaol is the end of the line. Too many people end up in gaol for drink-driving offences rather than more overt criminal activity. And the effect on a child of a parent’s incarceration can be devastating.
The Court’s concern about excessive drinking is not mere wowserism. First, it affects a person’s capacity to parent responsibly; that was implicitly acknowledged by the father when he explained that he modifies his drinking when the child is with him. Second, if a child’s experience has been that his or her parent’s drinking is a forerunner to angry and violent behaviour in the home, that child is likely to be apprehensive and fearful of potential consequences if exposed to inebriation. The evidence is of the child, when very young, being taken by older siblings out of his home because his parents were oblivious of the effects on the children of their own violent dispute, a dispute either occasioned or exacerbated by his father’s drinking. The child may be all too well aware of the potential for conflict when his father is drunk.
While the mother maintains her concerns, she has not submitted that the father would deliberately expose the child to harm resulting from his drinking. Her concern is the longer-term adverse effect on the child and the potential for him to be unsupervised or at risk if his father drinks too much.
Nothing in the evidence satisfies me that the presumption of equal shared parental responsibility should not apply and I will be making an order that the parties have equal shared parental responsibility for the child.
Primary considerations
The Court must consider two primary matters. The first, as outlined earlier, is the benefit to the child of having a meaningful relationship with both parents; the second is the need to protect the child from physical or psychological harm. It is clear that it is in the child’s interests to have a meaningful relationship with both parents. His time with his father has been re-established recently, after the unhappiness of parental separation. The orders sought by each party envisage both parents having significant time with the child. While expressing concern about events in the past, the evidence satisfied me that the child is not presently at risk of violence or abuse.
Additional considerations
(a)any views 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 views;
According to Ms D, the child is a happy, easygoing boy, who has a lot of friends, and good social networks. He told Ms D he would like to see his dad on weekends and on holidays. He said he always wants to speak with his father on the phone, but sometimes he is not at home. He then said his dad could ring him on his mobile but, like many 10-year-olds, agreed that his mobile was often either at home (when he was not) or was not charged. The child said he would like to be able to visit his father after school, sometimes. He had not done it yet because he was “too busy”. His preference was that any time after school not be specified, he preferring a flexible arrangement.
The child is 10. Some weight needs to be placed on his views. They are not determinative. He still needs to be guided by his parents about the structures of daily living.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
Ms D's evidence satisfies me that the Child has a comfortable, affectionate relationship with both his parents, which bodes well for his future. He has lived all his life with H and M. Ms D described them as articulate, attractive and pleasant children, a credit to those who have been involved in their upbringing.
Ms D reported that M intensely dislikes the father and was fearful of his aggressive behaviour, which she experienced in the past. She was relieved the parties had separated. Although he did speak of one incident in which violence was directed at him, H told Ms D that he had a reasonably good relationship with the father. He was not interested in pursuing the relationship at the moment, but was fairly detached in his analysis.
The evidence supports a finding that H and M have a normal sibling relationship with the child. It is an important relationship, notwithstanding the difference in their ages. In many intact families there would be children of 10, 15 and 16 living together.
It is clear that the child also has relationships with members of his extended family. The father spoke of relatives in C and B spending time with the child, and the mother spoke of her mother (also from C) spending time with the child and her other children. Those relationships need to be fostered.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These paragraphs all go to aspects of parenting capacity and parental responsibility, Ms D's view was that the mother has not valued the father's parental role and expressed some concern that the mother’s negative feelings towards the father may adversely affect the child's capacity to have a meaningful relationship with his father. That said, a mother who offers a block of five consecutive nights a fortnight during school terms could not be characterised as being intractably opposed to her son’s relationship with his father. It is more probable that her negative feelings have contributed to problems with communication, and to her distrust. It is hard for those involved with a family after a separation to understand the unhappiness and grief family members may carry, and it is unrealistic to expect people to simply wipe the slate clean of past experiences and emotions.
The father said that he wants to be part of the decision-making process for the child, and to spend substantial and significant time with the child. As Ms D noted, that involves participation in before-school preparation, in after-school activities and in extracurricular activities and spending time, as the child spends time, with the child’s friends, his peers. In her view, the child should have some structured time with his father on school days, despite the child's expressed preference for a flexible ad hoc arrangement.
(d)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 (including any grandparent or other relative of the child), with whom he or she has been living;
The recommendation of Ms D was that the child live with the mother and, if not at risk as a result of the father's alcohol consumption, spend time with the father on weekdays, weekend periods and school holidays. She suggested a regime of time in one week from the conclusion of school on Thursday until 5 pm Sunday and in the second week, of one or two nights which, she said “would be required to be either Thursday and/or Friday nights, returning Saturday a.m."
That “requirement” noted by Ms D is driven by nothing other than the father's working hours and, particularly, the problems he faces by the lack of a licence to drive. The father’s own evidence was that his boss would agree to him starting late on occasions so, for example, he could take the child to school, or to before‑school care. He spoke of before-school care starting at 6 am. which would be much earlier than many such programs. Perhaps there are private facilities available in the Albury/Wodonga area. However, to get to work he needs to be driven by a colleague, requiring a pick up at his place before 6 am.
The child presently goes shopping with his mother and maternal grandmother on Saturday mornings, his grandmother coming from C to spend time with two of her children and their families. She makes sure she visits on the weekend the child is with his mother, rather than with his father. The father, when he learnt of that today, instructed his counsel that he would be prepared to return the child at 9 am on those Saturday mornings, rather than 10 am, to facilitate the child’s time with his grandmother.
(e)The practical difficulty and expense of a child spending time with and communicating 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;
I have referred to two matters which are integral to the father's proposal, being his working hours and the loss of his licence. It must be said that structuring time around a job and personal constraints is not unique to a parent who is spending time with a child. Resident parents have to do it all the time. They often juggle full-time work and arrangements for after-school care. They must then make arrangements for non-curriculum days and other days on which children do not go to school. They must arrange care to look after a child who falls sick, and care when they must work during a school holiday period, most jobs offering only four weeks annual leave. I do not suggest that is easy, but it must be done and is done by many single parents.
In the husband's household there are a number of other adults. A friend has been there for some time, his brother is there now and the husband’s partner and her children are there when the child visits. However, he has told me that none of them can assist with looking after the child after he leaves for work, or getting him to school.
I do take account of the constraints of the father's working hours and the loss of his licence. However, the father’s convenience is not the paramount matter for the court; the paramount matter is the child's best interests. Come September, the husband will be free to be relicensed. I am unsure of the law in New South Wales. As in Victoria, the husband may need to undertake a course before being re-licenced. But I imagine he will be keen to obtain a new licence, and will do whatever is necessary to achieve that as soon as possible. That will make life much easier for him and will make it much easier for him to play a meaningful role in the child's life.
(j)any family violence involving the child or a member of the child’s family;
In relation to family violence, I say less than I might, having regard to the nature of the parties’ respective proposals, as both envisage the child spending significant time with his father.
The mother's perception is that the father continues to try to direct and control her, as he did during the marriage. The father's counsel submitted that, to the contrary, an order he proposed (which was that she be able to nominate six weekends a year on which the child would be returned on a Friday night rather than a Saturday morning) would achieve the opposite effect; she would be the person in a position to direct and control. This is a very subjective area. What one person sees as a request, another may see as a direction, or something to be borne.
The evidence is of very poor communication between the parties. I commend the parties for agreeing to use a communication book, but it will not solve all problems and it would be useful to ensure orders are not premised on frequent, effective communication. If relationships between the parents improve, and they can be more flexible in the future, that is likely to be in the child's interests. In the meantime, orders need to be very clear.
(l)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;
I do find it preferable to make orders which will be least likely to lead to the institution of further proceedings. I am sure each of the parties is keen for these proceedings to conclude. It is even more important for the child, as parental stress about the litigation has the capacity to impact adversely on him.
(m)any other fact or circumstances that the court thinks is relevant;
The Court needs to consider what “weekend time” means to families. I note Ms D's recommendation, but also that she saw it as “required” to provide that the child be with the father when he was not at work. Time with children from Friday afternoon until Sunday evening is precious to parents, because it is different. Saturday morning is the first morning in each week on which a child can sleep in or, if he or she wants, get up to ride a bike or go fishing or spend time with their friends and their parents’ friends. It is time without the constraints of fixed school hours, and a focus on homework and belongings and lunch in their bags.
On Friday evenings many families are together, winding down after a week, and that is the case whether it is takeaway in front of the television or activities in or out of the home. When parents are engaged in fulltime paid work, that time with their children is particularly precious because some of the pressures of the workday week, pressures on children as well as pressures on parents, are not present. In my view, this needs to be acknowledged in family life.
In my judgment there is force in the mother's submission that the child should spend each second weekend with her and his siblings. If a weekend starts at 10 am (or even 9 am.) on Saturday it is clear the family cannot leave after school for a weekend away, but that is only one consideration. Similarly, the child's attendance at soccer, while important, could be managed between the parents if they are committed to it, but that alone is not determinative. What is determinative is a finding that the child’s best interests will be fostered by spending the whole weekend in one home or the other.
Until September, or the husband obtains a driver's licence, the child be with him from after school Thursday until 5 pm Sunday in each alternate weekend, and from after school on Thursday until 5 pm Friday in the other week or, if soccer starts earlier than 5 pm, until soccer starts. I make it clear that order does not mean the father has to leave the child at the soccer. He can stay and watch the soccer, which would probably please the child, provided his parents do not fight.
Once the father obtains a licence, and provides a copy of that to the wife, his weekend contact will be extended to the start of school on Monday; that is he will have the Sunday night, as well. In my view the periods proposed by the mother would be very disruptive to the child, involving too much coming and going. Otherwise, I will make orders in the terms of the father's amended application. The orders will be subject to the parties agreeing otherwise.
I certify that the preceding
49 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2007.
…………………………………………
Associate.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BOWYER & BOWYER
Key Legal Topics
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Family Law
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Procedural Fairness
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