BW and SW
[2007] FMCAfam 620
•24 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
BW & SW [2007] FMCAfam 620
FAMILY LAW – Parenting – contact difficulties – relationships with parents – living arrangements – mother’s internet activities – protection from harm or violence – child’s views – change in circumstances – mother’s internet activities posing real risk to child rejected – court interference in lifestyle issues – mother’s priorities – equal shared parental responsibility – child live with the father and spend substantial and significant time with the mother.
Family Law Act 1975, ss.60CC, 61DA, 65DAA
AMS v AIF; AIF v AMS (1999) 199 CLR 160
Bennett and Bennett (1991) FLC 92-191
King and Finneran (2001) FLC 93-079
Rice and Asplund (1979) FLC 90-725
VR v RR (2002) 29 Fam LR 39
Applicant: BW
Respondent: SW
File number: CAM 3322 of 2001
Judgment of: Mowbray FM
Hearing dates: 23 and 24 October 2006,
24 November 2006
Delivered at: Canberra
Delivered on: 24 August 2007 REPRESENTATION
Counsel for the Applicant: Mr Julian Millar
Solicitors for the Applicant: Farrar Gesini & Dunn
Solicitors for the Respondent: Respondent in person ORDERS
(1)The Orders made by the Goulburn Local Court on 30 May 2005 be discharged.
(2)The parents have equal shared parental responsibility for the child NW, born 8 April 1997.
(3)The child live with the father.
(4)The child spend time with his mother as follows:
(a)During school terms, for two periods each fortnight as follows:
(i)In the first period from 10:30am Sunday to the following Wednesday before school and each alternate week thereafter;
(ii)In the second period from after school on Wednesday to before school on Thursday and each alternative week thereafter.
(b)For one half of each period of school holidays, being the first half in odd years and the second half in even years.
(c)Such further and other time as agreed between the parents in writing.
(5)The relevant parent advise the other parent no later than 48 hours prior to any scheduled time with the child if the parent is unable to spend time with the child pursuant to Orders 3 and 4.
(6)For the purposes of Order 4, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a)The first half of school holidays is deemed to commence at the end of classes on the last day of school.
(b)The second half of the December/January school holidays is deemed to commence at 5 pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year.
(c)The second half of all other school holidays is deemed to commence at 5 pm on the middle Saturday of the school holidays.
(7)The child spend time with the mother from 5:00pm Christmas Eve to 1:00pm Christmas Day and with the father from 1:00pm Christmas Day to 5:00pm Boxing Day in years ending in an odd number, and with the father from 5:00pm Christmas Eve to 1:00pm Christmas Day and with the mother from 1:00pm Christmas Day to 5:00pm Boxing Day in years ending in an even number.
(8)Notwithstanding the above Orders, the child spend time with the mother from 9:00am to 5:00pm each Mother’s Day and with the father from 9:00am to 5:00pm each Father’s Day.
(9)Notwithstanding the above Orders, if the mother’s birthday or the father’s birthday falls on a day when the child would otherwise be living with and spending time with the other parent, the following Orders apply:
(a)If the mother’s or father’s birthday falls on a weekday, the child spend time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4:00pm until 7:00pm.
(b)If the mother’s birthday or father’s birthday falls on a weekend the child spend time with the parent having the birthday from 9:00am until 5:00pm on the birthday.
(10)On the child’s birthday each year the parent with whom the child is living make him available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5:00pm until 7:00pm.
(11)Each of the parents be entitled to attend all events including the child including but not limited to:
(a)Sporting events.
(b)Extra-curricular activities that allow for parental attendance.
(c)School functions and events that allow for parental attendance.
(12)Each parent make arrangements to facilitate the child attending all sporting and extra-curricular activities which he is scheduled to attend, when the child is living with them, and if the parent cannot personally take the child to such activities, the parent give the other parent the opportunity to take the child to such activities by providing them with at least 48 hours notice.
(13)Both parents facilitate the child communicating with the other parent via the child’s “I-kids” mobile telephone.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRACAM 3322 of 2001
BW Applicant
And
SW Respondent
REASONS FOR JUDGMENT
1.The applicant, Mr BW, and the respondent, Ms SW, have one child, N born on 8 April 1997. He was three when his parents separated and is now 10 years old.
2.The most recent parenting orders of May 2005 provide for N to spend three nights and one evening each week with his father and the rest with his mother. The current proceedings arose because of the father’s concerns about some of the mother’s activities. N has also expressed a wish to spend more time with his father.
3.The father wants N to live with him and spend three nights a fortnight with the mother. He also wants half holidays for himself but not for the mother. The mother initially sought to retain the May 2005 arrangements. At the conclusion of the hearing she changed to five concurrent nights a fortnight with her and nine with the father.
4.For the reasons below I have decided on an arrangement which will see N spend four nights a fortnight and half holidays with his mother and the rest with his father.
Background
5.The father was born in 1973 and is now 34 years old. The mother was born in 1974 and is 33. They met in 1991 and commenced a relationship shortly afterwards. They married in October 1994, separated in late 2000 and the mother moved out in early 2001.
6.The one child of the relationship N was born on 8 April 1997 and is now 10 years old.
7.The father has repartnered meeting his current wife, J, in 1998. They commenced a relationship in about March 2001 after the mother had moved out.
8.The first set of orders for N was made by consent in the Goulburn Local Court in August 2001. Under these the child was to live with the mother and have contact with the father as agreed between the parties.
9.
Further consent orders were made in the Goulburn Local Court on
30 May 2005. N was to spend time with the father from 6pm to 8:30pm on Mondays and from 3:30pm Thursday to 10am Sunday. The rest of the time was to be with his mother.
10.I made interim orders on 24 November 2006 under which N lives with his father. He spends time with his mother from 10:30am Sunday to before school Wednesday in one week and from after school Wednesday to before school Thursday in alternate weeks. He was also to have half Christmas holidays with his mother.
The issues
11.I have considered in turn below the matters in issue which have been raised principally by the father. They are:
·contact difficulties
·relationships with parents
·the living arrangements
·the mother’s internet activities
·protection from violence
·N’s views
·the most appropriate orders.
12.There is also the question whether there has been such a significant change in circumstances since the May 2005 orders to justify reopening the parenting orders (Rice and Asplund (1979) FLC 90-725).
Contact difficulties
13.The father gave evidence of various difficulties he has had with contact arrangements:
·the mother has not been available to receive N when he was to return to her care
·under the current orders the mother is to have N from 10 am on Sundays but she often does not turn up until considerably later
·she rarely phones to say she will be late
·as it has become increasingly difficult to speak to N on the phone the father bought a special child’s mobile phone only to have it returned by the mother. He acknowledged however that he had failed to included the mother’s phone number in the four preset numbers on the phone
·the mother often arrives late for N’s various activities particularly sporting events such as soccer.
14.The mother says that she is unable to arrive home until 4.30 or 5 am on Sunday morning due to her work commitments. This has led to her “tardiness”. Sometimes the father is also unable to meet his commitment to N on Monday evenings because of his other commitments.
15.The mother states that she was initially positive about the phone provided to N. She became concerned when the father refused to give her the number which she later discovered. After this the father increased his calls to the phone noticeably, clearly not just for emergencies. The phone became a source of distress for N who then began “to use the phone as a weapon against” the mother when he was not getting his way. She gave the phone back to the father in August 2006.
Relationships with parents
16.The father says that he and N “thrive on each others company and … are very proud of each other. … [W]e are each others best mate.” They are involved together in Tae Kwon Do training and tournaments, soccer training and games and other sporting activities. He is the coach for the soccer team and assists coaching the cricket team. N has also developed a great relationship with his step-mother J who has read up on step parenting.
17.The step-mother gave evidence confirming that of her husband on the strength of his relationship with N. She also said that she and N have a good relationship and she values contributing to his development as a step-parent.
18.The mother’s relationship has evolved from being primary carer to one involving shared care with the father. She says that there is an open dialogue between N and her. He comes to her for comfort. They are openly affectionate. They read together, go to the park and regularly attend animal parks and zoos. But the relationship is strained at times, particularly after he has been at his father’s.
19.According to the father the mother has had a very limited association with N’s sport and social activities since the 2005 orders. The mother denies this and says that she attends whenever her employment allows. She says the father has stifled her attempts to take N to Tae Kwon Do. She agreed under cross-examination however that she only attended few of his soccer and cricket matches in recent seasons.
20.The mother states that she is unable to spend as much quality time with N because of her job. She is also concerned that the father and step-mother actively attempt to undermine her relationship with N. They are adversarial, aggressive and bully her.
Living arrangements
21.The father expresses concern about the mother’s living arrangements. He says that on numerous occasions N has told him “there are always other people in the house.” However when I questioned him he could only refer to one person called I and the mother’s two flatmates. The mother says that I stayed for only three weeks after the father raised the issue with her.
22.N also says that he sometimes does not go to bed until late and gets really tired. Again the father could only point to one instance when this complaint had been made.
Mother’s internet activities
23.This is the major issue raised by the father. He says that the mother uses inappropriate websites. He first became aware of this about January 2006. He annexed to his affidavit sexually explicit printouts from various adult websites. He says that they contain entries placed on the sites by the mother. The father says that he is concerned that as a consequence of theses activities “N may be exposed to paedophiles and/or predators.” He asserts that a number of these sites have been online when N was in the mother’s care.
24.The father expressed his concerns about the websites to the mother in March 2006. She responded that she was doing nothing wrong.
25.In November 2004 the mother had met her then boyfriend SB via the internet. She took N to Sydney to see S and left the son with S while she went to work. The mother concedes this but says she had established a relationship with him of some two months duration before she introduced N to him. The father accepts that this is the only person N has met from his mother’s internet contacts. It has not caused any harm but “the potential is there.”
26.Under cross-examination the mother denied that all the sites the details of which were annexed to the father’s affidavit were hers. She agrees however that during 2006 she expanded the number of sites on which she has profiles. In fact she continued to expand them in the three weeks prior to the hearing. Yet she had been aware since the father filed his application in March 2006 that this was of concern to the father. She asserted that she had been vigilant and this activity did not pose any threat to N.
27.Following the first two days of hearing in late October 2006 the father undertook further investigation of the internet. He says that he continued to observe the mother’s profile on some adult websites “being activated and used.” N told him that his mother chatted “to all these guys on the internet all the time.” When she had a laptop she used to do this at home.
28.The father testifies that had he been aware of the mother’s use of such websites he would not have consented to the May 2005 orders.
29.The mother admits to belonging to some of these “adult personal” websites but not all suggested by the father. She points out that her photos on them are not explicit in any way. Some of the sites which the father annexed are inactive and had not been used for over a year. Some refer to other people unknown to her.
30.The mother’s evidence is that N was rarely present when she accessed these sites. This was mostly at the Goulburn Public Library as she does not have a computer. More recently she used her mother’s computer at her parents’ house at the South Coast. Sometimes she uses a friend’s computer. She had previously had a laptop for four years to December 2005 and commenced using the internet sites about 2003. She had used the laptop to chat to men on line but only when she was home alone or after N had gone to bed.
31.The mother asserts that her activities on the internet do not constitute a threat to N’s well being or safety in any way. She says she has never nor would ever expose him to inappropriate material or activities: “where I meet people is of no relevance to this dispute.”
Protection from violence
32.In a third affidavit the father alleges that N told him that the mother physically hurt him. She puts him in arm locks and locks him in his room.
33.The mother denies that she uses arm locks. On six or so occasions during the last eleven months she has had to restrain him. She has carried him to his room but not locked him in it. There are no locks on the door.
N’s views
34.According to the father N has told him on numerous occasions since 2005 that he wants to live with him. He has also made this point to his father in front of his mother on two occasions.
35.N says that he wants to live with the father and step-mother because they do more things and it is more fun. N says it is pointless talking to his mother about it “because I already know the answer.”
36.Before the final day of hearing after a soccer tournament to which the mother arrived late, N told his father he did not want to go to the mother’s. He said she did not treat his matters as a priority, she hurt his feelings and put him in arm locks. She had told him he did not need to go to her home if he did not wish. The mother denies that she made this last comment.
37.Nevertheless the mother agrees that N would like to spend more time with the father. He has told her that on a number of occasions. He has held these views for over twelve months.
38.There are times when he says that he is bored. She knew he felt that she did not follow through with her promises and that she did not get him to sporting events he wanted to attend. This has made him frustrated. She agreed he would be disappointed and upset if the May 2005 arrangements continued.
The most appropriate orders
39.Both parents say they do not have open and honest communication and have had difficulties with arrangements to date. In the father’s view although communication at times has been amicable it is generally poor. Equal time would thus not work.
40.They also have different parenting styles. The mother agrees that the father has a strong sense of self discipline. She is less so. She has a problem getting to things on time, including collecting N on Sundays. This is due to her late working hours. The father has concerns about the mother’s living environment and her differing views on what is best for N.
41.Nevertheless initially the mother said she believes shared care would work. It would give N the opportunity to enjoy life with both his mother and father on an equal basis. Under cross-examination she said she was quite happy to go beyond shared care: “I think that it could be advantageous for N to spend even more than shared care with his father”. That is, more than fifty per cent of his time with his father. She suggested five nights a fortnight and half school holidays with her and the remainder with the father.
The family report
42.In the family report of 28 June 2006 the Family Consultant Ms Daphne Dawson said:
·N told her that he was not happy living with his mother
·time there was boring with his mother not doing much
·N was attached to his father “which is normal for his age and stage”
·he says he is closest to his father who is “the nicest person in the world”
·N loves his mother but she is unable always to facilitate his commitments – she promises but does not follow through
·N is very keen on his sports
·his mother yells at him when he makes the wrong decision
·he has told both parents he wants to go to his dad’s more
·while he thinks a shared arrangement would be fair he stated his mother would not get him to soccer or rugby.
43.Ms Dawson’s evaluation and recommendations are set out below:
Evaluation
24 N is close to both parents. However he has a special attachment to his father which while not uncommon for boys of his age appears to have been reinforced given their shared interest in sports and his ability to frequently attend to the child’s activities.
25 N appears to be taking a pragmatic view of which parent can best meet his needs practically. He also relies on his father emotionally.
26 N was clear about wanting to spend more time at his father’s home. He is strongly attached to his father. N also experiences his father as more able to undertake the practicalities of arrangements for his sporting interests which are important to the child.
27 If the allegations of Ms W that Mr W is trying to cut her out of the child’s life have any substance then an arrangement including her is important for the child’s continuing emotional healthy connection to his mother. Mr W maintained he would not undermine the child’s relationship with his mother.
Recommendations
28 It is important that N retains a positive relationship with both parents. As he appears to be emotionally closer to his father at present it is important he does not lose further connection to his mother. However his mother who works on Friday and Saturday night has difficulty in meeting N’s demands at these times.
29 Because of Ms W’s commitments it would suit all members for Mr W to take a greater responsibility for N’s commitments. The couple should however retain joint responsibility over important issues of health and education.
30 A possible solution would be for Mr W to have main care and responsibility with N going to his mother from Sunday to Wednesday every second week, and Wednesday on the following week. He can have a full week end at his father’s home but still spend quality time with his mother.
44.Under cross-examination Ms Dawson:
·acknowledged the father’s concerns about the websites
·noted that the mother was adamant that she was protective of N
·N’s wishes reflected “practical issues in terms of his needs and his social life”
·N needed to keep a link with his mother
·N did not suggest that he had been introduced to anyone via the internet
·there was no indication that the father and step-mother were fostering a negative image of the mother
·there was no sense of N being an emotionally disturbed child in any way
·equal time may not be appropriate as the mother did not seem to be coping that well
·although she was not an expert she found the mother’s use of the websites worrying
·she noted that the mother was insistent that she was protective of her son and would not put him into any jeopardy
·Ms Dawson was not “talking in terms of the possibility of N being subject to some physical or psychological” harm.
Change in circumstances
45.The current parenting orders for N were made on 30 May 2005 in the Goulburn Local Court – about nine months before the father filed his application in this Court.
1.The authorities onwhether or not a matter should bereopeneding recently made parenting orders refer to the need for a significant change in circumstances.
In Rice and Asplund the Full Court of the Family Court said:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that
,… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.47.The decision in Rice and Asplund has been subsequently followed in a whole series of cases.
,fFor example in King and Finneran (2001) FLC 93-079.Collier J sitting on appeal explained the way in which the Court should apply the test:44. To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
50. … The change or fresh circumstances must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
The Full Court
butin Bennett and Bennett (1991) FLC 92-191 made it clear that it is a matter for the trial judge's discretion whether to determine the Rice and Asplund issue as a thresholdissuequestion or in the course of a full hearing of themattercase. In this matter I proceeded to a full hearing and have decided that it is appropriate to reopen the parenting orders:·the matter which precipitated the father’s application – the mother’s use of the internet for making contacts for sexual and social purposes – only came to the father’s attention in January 2006
·the child who is ten has expressed a clear wish for the current arrangements to be changed
·in the end not only the father but both parents agree that they should be altered.
49.Furthermore, as will become obvious, I have reached the view that a change in residence in particular is in N’s best interests. I should give effect to this (Bennett at 78,262).
The child’s best interests – section 60CC factors
50.Section 60CA of the Family Law Act 1975 makes clear that in deciding whether to make a particular parenting order the Court must regard the best interests of a child as the paramount consideration.
51.Section 60CC sets a range of matters which the Court is bound to consider in determining what is in a child’s best interests. Section 60CC(2) contains two primary considerations and s.60CC(3) a series of additional considerations. As is often the case some of these matters are not relevant and I will not say anything more on them. Others on which there is no dispute will be briefly discussed.
52.From the evidence N presently benefits from a meaningful relationship with each parent (s.60CC(2)(a)). This will continue if the Court accepts the proposals of either of the parents. Whether the time the father proposes N should live with the mother is sufficient to foster his relationship with her will be considered with the other factors below.
53.Protection of N from harm or violence is a significant issue in this case (ss.60CC(2)(b) and 60CC(3)(j)). The father says that there is a need to protect N from violent handling by his mother. N had complained to his father about being put in an arm lock on occasions and forcibly detained in his bedroom by his mother at times of conflict with her.
54.Having heard the mother’s evidence on this I do not accept that what happened amounted to violence. Certainly the mother restrained N when taking him to his room for disciplinary reasons. But to suggest that it amounted to violence of such a nature as to require some protection for N is fanciful. What I have been told about is neither objectionable nor out of the ordinary in family situations.
55.The father’s overriding concern is about the mother’s use of adult websites and the potential risk for N to come into contact with persons she has met through these sites.
56.The evidence discloses:
·the mother utilises a number of adult websites but not all suggested by the father
·although she has accessed these in the past from her home when she had a laptop, she now goes onto the sites by computer at the local library, a friend’s or sometimes at her parents’ house at the South Coast
·she says N is rarely with her when she accesses the sites
·when she had a laptop at home and he was in her care she went onto the sites when he had gone to bed
·the mother has introduced N to only one person she has met through the sites – Mr SB with whom she left N on one occasion when she went to work over night
·she does not have a web cam
·she has shown a picture of one other friend from the websites to N
·the mother has had relationships including intimate ones with a number of people she met through the sites
·the mother is adamant that she does not involve N in any of these activities and is sufficiently vigilant and protective of his interests
·the mother’s website activities may well have become compulsive – indeed she appears to have increased her involvement since she became aware of the father’s concerns.
57.In his evidence the father said that as a corrections officer he worked with paedophiles and predators and:
I know of situations and I know of cases that relate directly to the activities that [the mother’s] involved with and where people have chatted on the internet and got to the mother’s drugged the mothers and raped the children. … Thank God N hasn’t been affected or hurt in any way at the moment, but I know what these people are capable of … Now, I believe the activities that [the mother’s] involved in directly puts my son at risk because these are the areas and avenues these people explore.
58.Mr Millar for the father submits:
·there is no way of checking the background of the people the mother meets on the sites
·leaving N with Mr B was a serious error of judgment
·as the mother does not herself acknowledge the risk to N or herself in her internet activities, there is a real potential risk to N if he spends the majority of time with her
·it is notorious that people use the internet to make contact with children for sexual purposes
·there is sufficient reason for the father “to have a reasonable apprehension of the child being at risk if he is brought into contact with people with whom the mother has made connections from those web sites … [he] should not have to wait … for actual harm to happen before raising it”
·allowing the mother only three nights a fortnight strikes the right balance between minimising the risk and providing time for N to maintain his relationship with his mother.
59.In my view the mother has shown a degree of naivety in her use of the websites, particularly in increasing her activity after these proceedings were commenced. She says she is vigilant and has taken steps to protect N, including generally avoiding the websites when he is in her care.
60.But does her use of the sites pose a real risk of physical or psychological harm to N? On the evidence before me the father has very much overstated his case. He has speculated and made various assertions. However he has not put any expert evidence on the types of people who use these sites or of future risk, nor shown any harm to N in the past. I am not prepared to infer as “notorious” that these sites attract certain types of people such that the mother meeting these people on the website puts her or N at risk. The sites are not inviting any sexual or other activity with a child. Ms Dawson says that there is no evidence that N is emotionally disturbed.
61.The father is still prepared to allow N to spend three nights a fortnight with his mother. If there was the risk he asserts I would expect an application where N had no overnight stays with his mother.
62.In AMS v AIF; AIF v AMS (1999) 199 CLR 160 Kirby J said at [145]:
… One of the objects of modern family law statutes … is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents." (endnotes omitted)
63.In VR v RR (2002) 29 Fam LR 39 the Full Court of the Family Court said at [29]-[30]:
… in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made.
In our view it is not the role of the court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference. (emphasis added)
64.Also at [59]:
Absent evidence that the welfare of the children requires the imposition of some restriction in the way that the husband chooses to parent his children when they are with him we see no reason to place any further limitation upon the husband … While we are sympathetic to the wife's desire to shield the children from what she sees as possible harm arising from their parents' ability to afford extensive and expensive holidays, her value system is not inherently more important to the children than that of their father. Absent clear evidence that the two systems cannot function in tandem, the Court ought not buy into these lifestyle debates between parents unless the welfare of the children demands that one system be chosen over and above the other. No such evidence is present in this case. (emphasis added)
65.In my view it follows from the above principles that the Court should not enter into lifestyle issues involving lawful activities by parents unless they have significant consequences for the child. The Court is not a court of morals.
66.The evidence before me, particularly that on the mother’s practices to date, does not satisfy me that N is at risk of physical or psychological harm because of the mother’s activities on the website.
67.There can be no doubt about N’s views (s.60CC(3)(a)). He wants to spend more time with his father. The mother agrees that is what he desires. Ms Dawson, the father and the step-mother all agree.
68.N finds it boring at the mother’s home. He does not engage in many activities there. She does not follow through on her promises and she does not give him priority. On the other hand he regards his father as the nicest person in the world who is closely involved in his activities.
69.N’s views have a rational basis as he gave plausible reasons for them. N is ten years old. His views must attract significant weight.
70.There is no doubt that N has a good relationship with his father (s.60CC(3)(b)). Similarly the relationship with his step-mother is good.
71.There are some troubling aspects to the relationship with his mother. It may well be close, warm and loving as the mother asserts. But whether because of the more causal approach of the mother or otherwise, N has significant concerns about the priority the mother places on his activities. This is reflected in the mother’s apparent lack of commitment to some of his sporting activities and her frequent late arrival to them. Also her late availability on Sundays when he comes to her home. Furthermore I agree with Ms Dawson that the mother appears not to be coping.
72.Both parents have contributed to N achieving a close and continuing relationship with the other parent (s.60CC(3)(c)). Provided the internet issue is not blown out of proportion, I consider that this should continue.
73.The principal change in N’s circumstances if I give effect to the father’s proposals is that the new arrangements will be much closer to N’s views and wishes (s.60CC(3)(d)). I agree with the father than this should relieve his frustration. Hopefully it will assist to improve those aspects of his relationship with his mother that distress him.
74.There is no doubt that both parents have the capacity to provide for the emotional, intellectual and other needs of N (s.60CC(3)(f)). However given N’s closeness to his father he is in a better position to achieve this. He also appears more willing to give priority to for N’s broader needs such as pursuit of his sporting interests.
75.I agree with the father that the mother has not always shown an appropriate attitude to the responsibilities of parenthood (s.60CC(3)(i) and (4)). I have already expressed my views about her internet activities. Although I am not convinced that they represent a real risk to N I am of the view that the mother has been somewhat naïve.
76.Of more concern is the priority the mother has given to N’s needs. Here I have in mind her lack of commitment to some of the activities he regards as important such as sporting tournaments, and her apparent indifference to whether she is on time for such events. She also seems to think that there is no problem if she is not available and on time when he returns from his fathers’ on Sunday mornings.
77.The mother shows a degree of casualness in her approach to matters of importance to N. N instances occasions when she makes promises which are not followed through. It is little wonder N wants to live with his father.
78.On the other hand the father’s refusal to include the mother’s phone number in the preset numbers on the phone he provided to N does him no credit.
79.I am enjoined to make orders which are least likely to lead to the institution of further proceedings (s.60CC(3)(l)). I am conscious that this is the third occasion on which proceedings have been instituted for parenting orders with the last made only in May 2005.
80.The orders I propose to make are in the main consistent with N’s wishes. With commonsense and goodwill further proceedings should be able to be avoided. I note that the mother has been prepared to make significant concessions from her original position for continuation of the May 2005 orders. Given their common commitment to N I would expect that the two parents would look to the future once these proceedings are concluded.
Equal shared parental responsibility
81.The father does not seek any order on parental responsibility, the mother seeks one. In my view this is a case where no reason has been given why the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility should not apply (s.61DA).
Parenting orders
82.As I propose to make an order for equal shared parental responsibility I must consider whether N should spend equal time with each of the parents or substantial and significant time (ss.65DAA(1) and (2)).
83.I do not consider that it is in N’s best interests to spend equal time with both parents at this stage. This is principally because of his clear wishes and because his mother has not been able to give the priority to his needs that they deserve. I do not intend to repeat here what I have said about these matters above. In addition the mother does not now seek equal time.
84.It is however in the best interests of N to spend substantial and significant time with each parent. For the reasons set out above, including those of Ms Dawson, I propose to provide for N to live with his father and spend time with his mother from 10:30am Sunday to before school on Wednesday in the first week and from after school on Wednesday until before school on Thursday in each alternate week. These are the school term arrangements currently in the interim orders I made on 24 November 2006. They also fit in with the mother’s Saturday night work requirements. N shall also spend half school holidays with his mother and any other times as agreed.
85.Both parties have agreed to orders proposed by the father:
·for Christmas and Boxing Days
·for Mother’s and Father’s Day
·for birthdays of the parents and of N
·for attendance at sporting and other activities
·for communication via N’s “I-kids” mobile phone.
I will make these orders.
86.The mother opposes orders sought by the father:
·restraining the mother from accessing websites of a sexual nature when N is in her care
·restraining the mother when N is in her care from meeting persons she has met as a result of access to these websites
·restraining the mother from using physical restraint on N
·suspending the mother’s time with N if she breaches such orders.
87.I do not propose to make these orders. The evidence which I have considered extensively in these reasons does not justify it. I have already said that I am not satisfied that N is at risk because of the mother’s internet activities. It is not for the Court to buy into lifestyle issues, nor is it appropriate for the Court to restrain lawful activity which the evidence does not suggest is harming the child. It is not for the court to rule on value systems or moral codes (see the discussion on this and on AMS v AIF and VR v RR at [62]-[66] above).
88.The evidence does not suggest that the mother has used excessive or harmful restraint in disciplining N. The order proposed is also far too broad.
89.I do not intend to make the non denigration order sought by the father. Being effectively unenforceable it serves little purpose other than as an exhortation. It is also not supported by the evidence.
Conclusions
90.In this matter the principal issues turn on the father’s concerns about certain activities of the mother, the priority accorded by the mother to N’s needs and the views and wishes of N. A number of other matters have also been considered.
91.I am not satisfied that the father’s concerns about possible harm to N from the mother’s internet activities are well founded. There should not therefore be the restrictions on the time N spends with the mother or on the mother’s activities that the father seeks. However it is clear that N should now reside with the father as N wishes and spend substantial and significant time with his mother.
92.I am satisfied that the orders which are set out at the commencement of these reasons are in the best interests of N. I accordingly make those orders.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Hal Tilemann
Date: 24 August 2007
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