C and S D
[2001] FMCAfam 321
•5 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & S D | [2001] FMCAfam 321 |
| CHILDREN – Residence – shared residence. |
| Applicant: | J C C |
| Respondent: | L S D |
| File No: | ZM 2731 of 2001 |
| Delivered on: | 5 October 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 5 October 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | In Person |
| Counsel for the Respondent: | Ms Katzew |
| Solicitors for the Respondent: | Testart Robinson 701 Station Street |
ORDERS
THAT the Applicant Husband and the Respondent Wife retain joint parental responsibility for the long term care, welfare and development of the child S N C born 10th ….. 1994
THAT the said child reside with the Wife.
THAT the said child have contact with the Husband as follows:
(a)each alternate weekend from after school Friday to the commencement of school Tuesday commencing on 12th October 2001;
(b)each other week from after school Thursday to the commencement of school on Friday commencing on 18th October 2001;
(c)for one half of all school holidays being the first half in the holidays commencing in odd years and the second half of the holidays commencing in even years;
(d)that the parent who has the second half of the Christmas holidays shall have the said child from 3:00pm on 24th December to 3:00pm on 25th December in each such year;
(e)that otherwise all contact pursuant to (a) and (b) shall be suspended during school holidays;
(f)that the Wife do all acts and things required to ensure the said child phones her father on 2 separate occasions each week between the hours of 7:00pm and 7:30pm;
(g)from 10:00am to 6:00pm on Father’s Day in the event that it is on a non-contact weekend;
(h)for 2 hours on the child’s birthday and the father’s birthday if it falls on a weekday;
(i)for 4 hours on the child’s birthday and father’s birthday if it falls on a weekend that is a non-contact weekend;
(j)contact shall be suspended from 10:00am to 6:00pm on Mother’s Day;
(k)as otherwise agreed.
THAT each of the Husband and Wife be responsible for the child’s day to day care, welfare and development while the said child is in their care.
THAT UNTIL FURTHER ORDER the Husband be and is hereby restrained from attending at the said child’s school save for the following:
(a)collecting the said child for contact or returning the said child at the conclusion of contact;
(b)attending parent teacher interviews;
(c)attending school concerts, sporting activities and other like public events;
(d)attending the literacy program when the Wife is not present and with the written consent of the school.
THAT UNTIL FURTHER ORDER each party keep the other fully informed at all times in relation to the said child’s medical, dental and other health and general welfare issues and that all such information be provided in the Communication Book kept by the parties.
THAT otherwise all extant applications be dismissed.
AND THE COURT NOTES
THAT pursuant to section 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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 2731 of 2001
| J C C |
Applicant
And
| L S D |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband's application was initiated by way of a form 3 application filed 8 February 2001. That application was amended in the document filed on 26 July 2001. However the children's orders that were ultimately sought by the husband are contained in paragraphs 2 to 9 inclusive of his order 30 affidavit, which was sworn on
17 September and filed on the same date. The wife's response was filed on 13 March and was followed by an amended response on
3 August. Her final position with respect to children's issues was further refined and detailed by Mr Davis of counsel in his opening. He sought, in effect, a continuation of the existing orders. Essentially each of the parties was seeking a residence order in their favour with an order for extended alternate weekend contact and half school holidays to the other.
There were also applications for specific-issue orders and injunctive relief. The competing property applications were settled and orders were made by consent yesterday. The husband's application was supported by the following documents: his order 30 affidavit, sworn on 17 September 2001 and filed on the same day; his form 17 document, sworn on 24 July 2001 and filed on 26 July 2001; the affidavit of S B, sworn on 24 September 2001 and filed on 25 September 2001; the affidavit of E S, sworn on 20 September and filed on 1 October 2001, the affidavit of W C, sworn on 23 September 2001 and filed on 25 September. There were also two order 30 documents which were sworn on 1 October and filed on that date. One was a document which annexed a chronology. The second was a document which annexed various financial documents.
The wife's response was supported by the wife's order 30 affidavit, which was sworn on 27 September 2001 and filed on 27 September 2001, and her form 17, which was sworn on 25 July and filed on 3 October 2001. There was also a welfare report, which was prepared as a result of an order of this court of 15 March 2001. That report was prepared by Paul Ban on 23 August 2001.
Short history
The history of this matter is that the husband is 49 years of age. He was born on 26 January 1952. He is a public servant by occupation and he lives at 11/105 T Street, M. He is employed as a team leader with the Migration Review Tribunal, and although previously married there were no children of that marriage. He works full-time, leaving home at 7.30 am each morning and returning at 6.30 pm.
The husband has a relationship with S B, and although they do not currently live together it was disclosed by Ms B during the course of the proceedings that they have had on‑going discussions about marriage. Ms B has a child, L, who is seven months older that C. Neither Ms B nor L were present for the preparation of the welfare report.
The wife is 47 years of age. She was born on 5…….1954. She is a radiographer by occupation and she resides at 7 D Avenue, B, the former matrimonial home, with S, an 18-year-old son of a previous marriage, and C. She is employed by the C… I…. Group four days a week. The husband pays $100 a week by way of child support and contributes to the after-school care and the school fees. The parties first cohabitated in December 1993. They married finally on
15 November 1997. The husband says they separated under the one roof on 7 September 2000. That is in issue. They finally separated, in any event, on 22 November 2000. There is one child of the relationship: C L C, born on 10……. 1994. She is aged seven and a half and she attends S M T Catholic Primary School.
Issues
The previous orders that are relevant to these proceedings are orders that were made on 15 March of this year by Hartnett FM to the effect that until further order that C was to reside with the wife and have contact with the husband alternate weekends after school Friday until the commencement of school on Monday and each other week from after school Thursday until the commencement of school on Friday. There are also provisions for half school holidays and telephone contact each Thursday, with the husband to initiate the call. On 29 January 2001 in the Magistrates Court at Heidelberg the wife obtained an intervention order against the husband, which is valid until 28 January 2003.
Co-habitation commenced, as I have indicated, in December 1993 after the wife became aware that she was pregnant with C. Following C's birth the wife remained at home to care for her on a full-time basis until March or April of 1995. The wife says she breast fed the child for nine or 10 months. The husband said he believed it was a shorter time. When the wife did return to work it was for two days a week until 1997, when she obtained her current position of four days per week. This coincided with C's commencement at kindergarten. During this time, that is, up until 1997, the child was looked after by the wife's friend, J B. It was the wife's evidence that it was not until she was employed four days a week that the husband became consistently involved in the transportation of C to and from J B's each morning and evening. It is clear that the husband become more involved with the care of C after the wife returned to work. The extent of the increased involvement is in dispute.
After C started school in 1999 it was necessary for her to be delivered to the before-school program at about 7.30 am on four mornings a week. She remained in the after-school program until 6 pm two days a week and was cared for by J B on the other two days per week, or if she was ill. The wife cared for her each Wednesday, being her day off. It is the wife's proposal that these arrangements will continue in the event that the child remains with her.
The husband's proposals are much less clear, given a recent disagreement that he had with J B. His evidence is that he would be responsible for her care, despite his work commitments. I am unclear as to when he and S B might take up cohabitation together. It is something that they have discussed but have not made a decision about at this stage.
During the course of the marriage there was a good deal of friction between the parties. It was the husband's evidence that this was caused by the wife's inability to control her anger and manifested itself very early in the relationship. The wife, on the other hand, says that most of the arguments the parties had resulted from the husband's lack of contribution to the household chores.
The husband says he did everything around the house apart from the cooking. The wife says that from March 2000 she became increasingly suspicious that the husband was involved with another woman. His mood swings became more pronounced and he became increasingly abusive and at times violent. The husband's evidence is that the wife's abuse and temper were directed not just at him but also at S and C. By the year 2000 both parties concede that the marriage had difficulties.
The wife details what she saw as the husband's obsessive and manipulative behaviour towards C. She says he would not allow her to be involved in aspects of the child's life, such as bedtime stories. From the husband's perspective more and more of the responsibilities were left to him.
The husband's evidence is that following severe arguments the parties agreed that their marriage was over on 7 September 2000, but for the sake of C they would continue under the one roof. The wife says that she had confronted the husband about his involvement with another woman, a work colleague, S B, in early September 2000 and that he denied any involvement. She says that eventually she located the husband at his girlfriend's house on 14 October and an incident occurred in which there was a physical altercation between the parties.
There was a further physical confrontation on the morning of
2 November 2000 when the police were called by the wife. The parties continued under the one roof until 22 November, when the husband vacated the home. This followed an agreement which was reached by them on 14 November 2000 – which agreement was committed to printed form and was ultimately tendered as exhibit W1. It was a very detailed document and covered all aspects of the parties intended separation. But most significantly it was agreed that the child would continue to live with the wife in the matrimonial home at 7 D Avenue, B, and would have contact with the husband every alternate weekend, from after school Friday to the commencement of school on Monday. There were also provisions for the husband to take C to swimming and to her school on alternate Mondays and Tuesdays.
The next significant event was the making of an intervention order on 29 January 2001. An interim intervention order had been made on
2 November following the police attendance at the parties' home. The husband attended court on 29 January 2001, was represented by counsel, and defended the wife's application. Nevertheless, an intervention order was made. It is exhibit W2 in these proceedings. The husband breached that order twice to use his words, "knowingly", within a few days.
There were difficulties with respect to what each of the parties has said was the reluctance of the other to adhere to the agreement of
14 November, and in early March there was another physical confrontation, this time at C's school, when the police were again called.
On 15 March, as a result of the husband's initiating proceedings in this court, orders were made by Hartnett FM. Those orders, I have already indicated, required the child to reside with the wife and to have contact to the father each alternate weekend from after school on Friday to the commencement of school on Monday, and each other week from after school on Thursday to the commencement of school on Friday.
Application of the law
The relevant law in these proceedings with respect to residence, contact and specific-issue orders are parenting orders. They arise in proceedings conducted under Part 7 of the Family Law Act 1975. Section 60B sets out the objects of Part 7 and the principles which underline those objects. They are subject to section 65E, in that in determining the outcome, the best interests of the child is the paramount consideration. That is the overriding principle. Section 60B(2)(a) and (b) provide as follows:
“The principles underlying these objects are that except that it is or would be contrary to the child's best interest:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and
(b)children have a right of contact on a regular basis which both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”
In deciding the residence and/or contact arrangements that will promote the best interests of a particular child the court must also consider the various matters set out in section 68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account any other fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed, and I refer to B and B, Family Law Reform Act (1997) FLC 92755.
Findings and conclusions
It is the husband's case that prior to separation he had as much to do with C as the wife did, and that the wife's behaviour, that is, her ability to control her temper, was a disqualifying factor in respect to her ability to care for the child. At the same time he indicated during the running of the matter that he was prepared to share on a 50/50 basis.
The wife's case is that she has been the primary caregiver of the child during the marriage and post separation, and the status quo ought to be maintained. The child is progressing well and, in any event, it would not be in the best interests of the child to reside in the primary care of the husband because of his lack of insight and inappropriate behaviour.
I am satisfied that the wife has been the primary caregiver of the child during the marriage. The husband conceded that she remained at home full-time until March or April 1995, that she then worked two days a week until 1997, when she resumed four days a week work. Even then the husband continued to work long hours five days a week. He did, however, start to assist with the transport of the child and by the time C started school he was responsible for all the travelling. I accept, however, the wife's evidence that she continued to be the primary caregiver up until separation.
I am also satisfied she carried out these duties very competently and I do so for the following reasons: the husband, in cross-examination, was evasive and declined on many occasions to answer the questions put to him, but he did admit to a conversation in March 2000 where he told the wife he loved her, that she was a wonderful wife, a wonderful mother and a complete spouse. He also admitted that in April 1999 he had a conversation with the wife indicating to her that he was still hoping for a second child. He also told C in March 2000 that she was lucky to have the mother that she did. Finally, the husband agreed as at 14 November 2000 that the child should reside with the wife and he should have the contact arrangements that I have already referred to.
While the husband insisted a number of times that this was a compromise agreement that the parties had reached, I am satisfied that if he did not consider that it was in C's best interests he would not have agreed to the arrangements. I do not propose to re-canvas all of the alleged episodes involving violence in great detail. I am satisfied, however, at the very least, that the husband contributed to the violent confrontation that occurred on 14 October and 2 November 2000. The husband, on both these occasions, had the opportunity of avoiding the confrontation, and I am satisfied that the conclusion of the magistrate on 29 January 2001 was correct with respect to the incident of 2 November.
I further consider that at page 4 of his report the counsellor says there is no evidence that the child has been negatively affected by the wife's behaviour. That, in effect, covers the major issues between the parties pre-separation, save for one final matter which I find is particularly important with respect to maintaining the status quo. I am satisfied that C's relationship with her brother, S, is of great importance. The wife's evidence is that the affection between them is mutual and strong and despite the age gap they spend a lot of time together. While the husband endeavoured to downgrade the level of the bond that existed between them, I note the counsellor's report at page 4:
“Mr C accepts C is loyal to her mother and step-brother and realises it is important to her to maintain those relationships.”
The continuation of the status quo has clearly occurred post-separation. The strongest argument advanced for increasing the husband's contact with the child is what is said by the counsellor at page 8 of the report:
“She wants to see mum and dad equally.”
In that respect I have given serious consideration to something akin to a shared residence as suggested by the husband in his evidence. However, I refer to the final paragraph on page 8 – at the bottom of page 8 and at the top of page 9, the counsellor's report, where the counsellor concludes that such an arrangement would not work because of the parents' lack of capacity to communicate and cooperate with each other. I came to exactly the same conclusion. The evidence of the lack of ability to communicate is abundant. There are a number of examples. The husband said, indeed volunteered, in evidence that he hated D. There was no secret about that. The difficulties he has caused with J B, the 76-year-old nanny who cares for C several nights a week and when she is sick, have also caused me real concern. He concedes that she did not want to become involved yet he conceded he told her, "I don't want you to see her any more and it is not in C's best interest to see you any more." He also conceded that J B was very upset as a result of the altercation.
There are difficulties that have arisen as a result of the phone calls that were ordered to take place as a result of the orders at 15 March. It may well be that those difficulties have arisen as a result of problems caused by each of the parties. Nevertheless, it indicates a clear lack of capacity for these people to communicate. There is the incident I have already referred to which took place at school when the police had to be called. Finally there are a number of matters which I cannot ignore when assessing the attitude of the husband to the responsibilities of parenthood and his capacity to meet the child's needs. I have found that the husband's treatment of the wife in April 1999 when she told him she had been medically advised to have a hysterectomy quite extraordinary. He conceded that he told her that she was selfish and had cheated him of having another child. In late January, early February – he conceded, as I have already mentioned – that he knowingly breached the intervention orders on two occasions.
Of lesser significance is the husband's admitted lack of cooking skills when compared to that of the wife. It seems his culinary abilities go no further that reheating pre-cooked meals. However, while I am not prepared to make orders for a shared residence, I do consider that it is in C's best interest to increase the time she spends with her father. There is no doubt that her father loves her dearly. It accords with the child's wishes and I am comforted by what Mr Ban said about an additional day not being likely to cause additional friction, and particularly in the event that I add that additional day to the alternate weekend so that it concludes at the commencement of school on Tuesday.
Further, I am satisfied that the best way to avoid further friction between the parties arising through phone contact is for me to require the mother to ensure the child phones her father each week on two separate occasions between 7:00pm and 7:30pm.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate:
Date: 5 October 2001
0
0
0