C and W and Anor
[2003] FMCAfam 318
•7 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & W & ANOR | [2003] FMCAfam 318 |
| CONTACT – Best interests – child of nine and half years – father wishing to extend contact to alternate weekends and for four weeks during school holidays – change to long-standing arrangement. Family Law Act 1975, ss.60B, 65E, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | S W C |
| Respondents: | M N W & D F W |
| File No: | ADM 4295 of 2002 |
| Delivered on: | 7 August 2003 |
| Delivered at: | Darwin |
| Hearing date: | 31 July 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms D Dibden |
| Solicitors for the Applicant: | Alf Strappazzon |
| Counsel for the Respondent: | Ms J Cocks |
| Solicitors for the Respondent: | Judith Cocks |
ORDERS
That the maternal grandmother, father and mother have joint responsibility for the long term care, welfare and development of D M W born the 10th of January 1994.
That the said child reside with the maternal grandmother.
That the maternal grandmother have sole responsibility for the child’s day-to-day care, welfare and development.
That the maternal grandmother give and the father have contact with the said child as follows:
(i)From the conclusion of the child’s basketball game or at 6.00pm, whichever is appropriate, on each alternate Friday until 7.30pm the following Sunday or 7.30pm the following Monday in the event that Monday is a public holiday;
(ii)For two weeks commencing at 10.00am on Boxing Day each year and concluding at 7.30pm on the 9th of January in the following year;
(iii)For two weeks in either the April or September/October South Australian school holidays commencing at 10.00am on the first Saturday of such holiday period and concluding at 7.30pm on the second Saturday of such holiday period with the father to nominate in writing to the maternal grandmother which holiday period he will take as contact pursuant to these orders, six weeks in advance of such contact;
(iv)From 6.00pm until 8.00pm on each of the said child’s birthday, the father’s birthday, the father’s sister’s birthday, the paternal grandmother’s birthday and the paternal grandfather’s birthday; and
(v)At any other times and upon any other conditions as the parties may agree between themselves from time to time.
That the maternal grandmother give and the mother have contact with the said child at such times as may be agreed between the parties.
That in the event that the child’s basketball game on Friday evening concludes at a time at which the father is able to attend the venue of the game the handover for contact be at the venue of the basketball game but otherwise all contact handovers take place outside the maternal grandmother’s home situated at 13 V Street, Kidman Park with the father to remain in his motor vehicle and the maternal grandmother to remain in her home and neither party to approach or denigrate the other.
That the parties exchange telephone contact numbers, including mobile phone numbers within 7 days of today’s date and advise the other party by telephone in the event that either he or she will be more than 10 minutes late for any contact handover and each party is restrained and an injunction is issued restraining each of them from using the other’s telephone number for any other purpose than communicating with the other in respect of arrangements to do with contact.
That the maternal grandmother provide copies of all of the child’s sporting fixtures as soon as they are available to her by means of a communication book that passes with the child at each contact handover.
That all applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 4295 of 2002
| S W C |
Applicant
And
| M N W & D F W |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to contact arrangements for one child, D M W born the 10th of January 1994. The applicant in the proceedings is D’s father, S W C “the father”. The respondent in the proceedings is D’s maternal grandmother, D F W “the grandmother”.
D’s mother is M N W, “the mother”. She was named as a respondent in the proceedings and although she filed a response to the application, she has not played an active role in them for sometime. It is common ground between the parties that D has lived with the grandmother since September of 2000. The mother is content to let this state of affairs continue and to support whatever decisions her mother makes in future regarding D’s care.
The relationship between D’s father and mother has been a difficult one for very many years and as early as August of 1994, when D was a baby of eight months, orders were made by the Family Court at Adelaide regarding arrangements for his care. At that stage, orders were made granting the mother custody of D and twice weekly access periods of two hours to the father. These access arrangements were modified by the court on the 15th of July 1996 and orders were made allowing the father to have contact with D on alternate weekends from 6.00pm on Saturday until 6.00pm the following Sunday and on the other weekend from 3.00pm to 7.00pm on Sunday. Other orders were made regarding his contact to D on special occasions and for one week in the mid year school holidays and one week in the December/January school holidays.
When it became apparent to the father that D was living with the grandmother, he commenced proceedings in the Court on the 30th of September 2002 seeking orders that D live with him. Both the grandmother and the mother responded seeking that the existing situation be ratified and orders made that D continue to live with his grandmother and have contact on the same basis with his father as set out in the orders of the 15th of July 1996.
On the 23rd of January 2003, Federal Magistrate Mead ordered that a family report be prepared to assist the court in determining the future arrangements for D’s care. This report was prepared by a psychologist, Ian Law. The father, the mother, the grandmother and D all took part in the preparation of this report, which was designed in part to elicit what D’s wishes were as to where he wanted to live in future.
Following the release of this report to the parties, the father discontinued his application for residence and orders were made on the 22nd of May 2003 with his and the grandmother’s consent, which allowed for D to continue to live with the grandmother. The remaining issue to be determined between the father and the grandmother is what should be the level of contact between D and his father in future. It is the grandmother’s position that the contact orders that have persisted since the 15th of July 1996, should continue. It is the father’s position that it is now appropriate for these orders to be extended and for him to have contact with D each alternate weekend from Friday afternoon until the following Sunday evening as well as for four weeks during school holidays. However if this occurs, it is his position that the shorter period of contact should be discontinued. Essentially he believes that a longer period of alternate weekend contact is now appropriate for D and a much more workable proposition for all concerned.
The parties have differing perceptions as to what D’s wishes are in this regard and what is likely to be in his best interests so far as contact is concerned. The mother herself has had no input into the determination of this question. However, I am satisfied that it is appropriate that the matter should be determined in her absence.
Background
The father was born on the 29th of November 1964. He lives alone in Grange. His parents live nearby in West Lakes. He is a manager by occupation. He is also a keen sportsman, playing competitive cricket in summer and football in winter. He is engaged in his sporting activities on most Saturdays. His sporting activities take him to sports grounds throughout suburban Adelaide ranging from Salisbury or Modbury in the North to Flinders University in the South. He has a sister who lives in London.
The grandmother was born on the 19th of May 1947. She lives in Kidman Park. She is not engaged in the paid workforce at present. The mother was born on the 4th of March 1974. Besides D, she is the mother of two other children, namely C N W born the 10th of November 1995 and M R W born the 4th of March 1999. The grandmother has been actively involved in the care of D, C and M since the time of their respective births. It seems that the mother has had difficulties in life from time to time and as a result has been highly reliant on her mother in respect of the care of these children. Gradually, over time, the grandmother assumed more and more responsibility for their care, particularly in respect of D and C and from September of 2000, she assumed principle responsibility for caring for C and D. M lives with his father close by to the grandmother and as a result has regular contact with his brother and sister. All three siblings are close and enjoy activities together.
The mother herself does not presently have regular contact with any of her children. However, she visits the grandmother from time to time, although there is no pattern or predicability to these visits and on occasions she stays with her mother for periods of weeks at a time and then has extended periods of contact with D and C.
The relationship between the mother and the father is one marked by suspicion and lack of communication. These are characteristics that also mark the relationship between the father and the grandmother. Neither the mother nor the grandmother informed the father that D had come to live permanently with the grandmother and she essentially had assumed responsibility for his full time care, albeit with the mother’s consent. However, during this period from September of 2000 onwards, D was produced each weekend for contact as required by the orders of the 15th of July 1996. These orders were as follows:
(1)That the mother do give and the father do have contact with the infant child of the relationship D M W born on the 10th January 1994 as follows:
(a)From 3.00pm to 7.00pm each Sunday until the said child’s second birthday and then:
(i)Each alternate weekend from 6.00pm on Saturday until 6.00pm on Sunday;
(ii)On the intervening weekend from 3.00pm to 7.00pm on Sunday;
(iii)On the child’s birthday. The father’s birthday, the father’s sister’s birthday, the father’s mother’s birthday, the father’s father’s birthday from 6.00pm until 8.00pm.
(b)From 8.00am to 12.00 noon on Christmas Day.
(c)That as and from the day of the said child’s third birthday the father’s weekend access to the said child shall include Mondays where the Monday immediately following such access is a public holiday.
(d)That as and from the child’s said birthday the father shall also have contact with the said child for the following periods:
(i)For one week being the second week of the mid year prescribed public school holidays fro each year;
(ii)For one week commencing on 26th December each alternate year commencing in 1997;
(iii)For one week commencing 2nd January each off year commencing in 1999.
It has long been the practice of the parties that D should be delivered and collected at the end of each contact period at the Henley Beach Police Station. This is an indication of the level of tension and suspicion between the parties. In early 2002, the father became suspicious that he had not been kept fully informed as to the arrangements that had been made in respect of D’s care. As a result he consulted his solicitor and caused a letter to be written to the mother, care of the grandmother’s address. When it became apparent to him that D was living with the grandmother, he reached the view, it was appropriate that he should play a larger role in his upbringing. In the circumstances, particularly the concealment from him of this important change in D’s living arrangements and the necessary implication of D in this concealment, I can well understand why this would be so. The grandmother also consulted solicitors and correspondence passed between the parties. This exchange of correspondence seems to have exacerbated the already high level of tensions between the parties and culminated in the father’s application for D’s residence, which was filed in the Court on the 30th of September 2002.
Another issue that seems to have exacerbated tensions between the parties is that of child support. The mother applied for an administrative assessment of child support in respect of D, as she was entitled to do. The father paid child support in accordance with the assessment. However, when he discovered that D was not living with the mother, he became suspicious that the child support that he had previously paid had not been utilised for D’s financial support, as a result he became annoyed. He made a complaint to the Child Support Agency itself and ceased his payments. The grandmother did not seek her own administrative assessment of child support in respect of D. Accordingly, she has not received any financial support from the father in respect of D’s care and he has not himself sought to rectify this situation.
This is in general terms the background to this matter. As is readily apparent, the father and the grandmother currently have little if any facility to communicate with one another and mutually mistrust the motives of the other for taking the position that he or she has in these proceedings. However, to the father’s credit, once the family report of Mr Law was released to the parties in April of 2003, he conceded the issue of residence. This was because D had clearly indicated to Mr Law his wish to continue to live with his grandmother. This led to final orders being made on the 22nd of May 2003 with the father and grandmother’s consent and by default as against the mother as follows:
(1)That all previous orders concerning the child D M W born on the 10th day of January 1994 be discharged.
(2)That the maternal grandmother, father and mother have joint responsibility for the said child’s long term care, welfare and development.
(3)That the said child reside with the maternal grandmother.
(4)That the maternal grandmother have sole responsibility for the said child’s day to day care, welfare and development.
(5)That the maternal grandmother give and the father have contact with the said child:-
(a)From 6pm until 8pm on each of the said child’s birthday, the father’s birthday, the father’s sister’s birthday, the paternal grandmother’s birthday and the paternal grandfather’s birthday;
(b)And at such other times as may be agreed between the parties and in default of agreement as may be determined by this Honourable Court.
(6)That all handovers associated with the father having contact with the said child occur at the Henley Beach Police Station.
(7)That the maternal grandmother give and the mother have contact with the said child at such times as may be agreed between the parties.
At the present time, the parties each have different views as to what D wishes in respect of his contact to his father in future. Each of the parties asserts that D has confided his wish to either him or her. It is the grandmother’s position that D wishes the existing and long-standing contact arrangements to continue. She asserts that her view is supported by the observations of Mr Law.
It is the father’s position that D would prefer to spend a longer period of time with him each alternate fortnight. He believes that the grandmother is obstructive of his wish to play a larger role in D’s life because of her long-standing antipathy towards him. He also asserts that he and D have a close and loving relationship with one another, which is partly based on their shared love of sport. It is also the father’s position that his parents, D’s paternal grandparents, also enjoy a close and loving relationship with him, which would be more easily fostered if D was able to spend longer periods of time with him at the weekend. Overall, it is the father’s position that as D has now reached nine and a half years of age, it is appropriate to extend the contact period, which was originally determined when D was very much younger and which is no longer appropriate to either his needs or the situation of the father himself.
It is the grandmother’s position that the father has been exerting undue pressure on D regarding the extension of contact and this has made D feel unhappy and unsettled. She does not believe that the father has any true appreciation of what D’s wishes are and in particular that he wishes to spend extended periods of time with his sister and brother on weekends, so that he can enjoy activities with them. She also asserts that the father has no proper appreciation of D’s needs. This is manifested by him being unduly critical of D in respect of his sporting abilities and through persistent quizzing of D about his attitude to these proceedings. This has resulted in D feeling unhappy and pressured. She also believes that the father is unreliable as a parent, particularly because he has failed to attend some of D’s sporting commitments, but above all because of his consistent lack of punctuality in arriving to both collect and return D on contact visits. Essentially, she believes that the father puts his own needs, particularly his desire to attend his sporting activities, before those of D.
The evidence
Both parties were represented by counsel in these proceedings and each gave extensive oral evidence in them. As a result, I had the opportunity of observing each of the parties in the witness box. In these reasons of judgment findings are made on the balance of probabilities have regard to the evidence and my observations of the demeanour of each of the parties. In what follows, statements of fact constitute findings of fact.
I found the father to be an honest and decent witness. He is obviously passionately devoted to his son and the pursuit of his best interests. It has not been easy for him to maintain his relationship with D. From the time that D was a few months old, his relationship with both the mother and the grandmother was difficult. He was compelled to bring proceedings to gain some contact with D and ever since it has been a struggle for him to maintain his relationship with D. However, regardless of whatever criticisms are made of him by the grandmother, I am satisfied that he has endeavoured to maintain and extend his relationship with D. I have no doubt that he has been a consistent feature in D’s life throughout.
The father, to a large extent, defines himself as a sportsman and much of his life revolves around his membership of his cricket and football clubs, where he spends much of his social life. Although approaching 40, he is still playing competitive Australian Rules football and hopes to have at least another couple of seasons before him playing the game. In summer he plays cricket. Due to the irregularity of the various fixtures, uncertainty about precisely when matches will finish and their differing locations throughout suburban Adelaide, I accept that the 6.00pm commencement time for contact on alternate Saturdays is extremely problematic for him. Accordingly, I have no doubt that he has been late in arriving to collect D at the Henley Beach Police Station from time to time. I do not believe however that this lateness is a manifestation of disinterest in D. The father could have done better on occasions at advising the grandmother that he would be late. However, due to difficulties in their relationship, it is not easy for them to communicate with one another. No doubt this is extremely annoying from the grandmother’s prospective.
The parties each have diametrically different views as to how late the father is from time to time. The father concedes that he has been extremely late on two occasions due to illness and an unanticipated personal emergency. On other occasions he asserts that he is between five and ten minutes late. The grandmother asserts that he is consistently late between twenty and thirty minutes and sometimes longer. I suspect that the father has a tendency to minimise his tardiness and the grandmother a tendency to maximise it. Each of the parties has no doubt reconstructed events through a prism of hostility for the other party. What I think is relevant is that it demonstrates that the 6.00pm time is unsuitable and should be changed.
However, I do not think that it is in either the father’s or necessarily D’s best interest, for the father to renounce his sporting interests at this stage. As I say, he defines much of his personality through being a sportsman and D himself takes part in activities at the father’s club. Sport is an interest they share. The father has attempted, rather unsuccessfully at times, to juggle his sporting commitments and his obligation to collect D on time. His tardiness and lack of explanation have allowed resentment to flourish in an already difficult situation. He has behaved cavalierly towards the grandmother. His lack of apology to the grandmother and his discourtesy in being late clearly display a lack of regard for her, which does him no credit. However it cannot be extrapolated from that that he has no regard for D. Clearly over the seven years or more of the contact orders, in difficult circumstances, he has maintained contact with D. If he can be criticised, it is for trying to do too many things at the one time and being a poor time manager. Clearly 6.00pm Saturday is a difficult time for him. Sadly, up to now, the parties have had no facility to negotiate a change in this time.
Both parties spoke warmly of D. The father described him as bright and intelligent and generally happy. The grandmother described him as a “happy-go-lucky kid”, who was sensible and doing well at school. She also said he was sensitive and well aware of what was going on around him. I have no doubt that he is aware of the high level of hostility between the father and grandmother, a state of affairs which has existed for all of his life. Contact handovers have invariably taken place at a Police Station. Something to which D is now habituated, but which is normally a handover location of last resort. However in D’s case, it is the only handover point he has ever known.
When D came into the care of the grandmother, it seems she was reluctant for the father to know about the change of arrangements, no doubt because she feared that it would provoke an application for a change in D’s residence, as indeed proved to be the case. I can also understand why the father would be resentful that the child support he was paying was not being utilised for D and feel that he was being kept in the dark regarding arrangements for D’s care. At the present time the grandmother is critical of the father for not paying child support in respect of D. However, she herself has not applied for a child support assessment from the father. In her evidence, she indicated that she did not feel comfortable accepting money from the father because she was fearful that he would accuse her of caring for D “only for the money”. Clearly these various matters speak of a high level of antipathy between the parties, of which D, as an intelligent and sensitive child, could hardly fail to be aware. In this environment, I believe that D will feel some difficulty about expressing his wishes about contact and what he does say, is liable to be misinterpreted by the parties concerned. Certainly, it is not an environment which makes for an easy exchange of information between the parties about what is likely to be in D’s best interests.
However, the grandmother, to her great credit, acknowledges that D loves his father and his father loves him. She also acknowledged that it was likely to be in D’s long term best interest to have a strong relationship with his father. D also clearly loves his mother. However, unfortunately due to the difficulties that she has in her life at present, she is not in a position to play a consistent and regular role in D’s life. This is a loss that D feels keenly.
However, there are signs that the parties are capable of reaching some future rapprochement so far as arrangements for D are concerned. Both the father and grandmother acknowledged that there have been faults on both sides. They are now each willing to consider moving handover arrangements away from the Police Station. This can only be to the good. They are also willing to exchange their telephone numbers and to consider using a communication book, as a means of conveying information between them about D, particularly his sporting commitments.
Overall, I was impressed with both parties and the strength of their love for D. In my view, it is to the father’s credit that when it became clear that D wished to continue living with his grandmother, he did not persist with his application for residence. I do not believe that he is motivated in these proceedings by anything other than his love for D. The grandmother was compelled to take up responsibility for the care of D and his younger sister C in difficult circumstances. Under her care, it seems that D is prospering.
I have no doubt that from time to time caring for D must have been difficult for her. The fact that he has turned out so well is a credit to her. The grandmother indicated that D was sometimes apprehensive at the prospect of contact but always returned happy from it. She also acknowledged that an extension of holiday contact would enable D and his father to engage in other activities, such as a motoring holiday to the Gold Coast or a horse riding holiday in the Great Dividing Range. These are activities that have been proposed by the father and would not be possible in a contact period of seven days. These are both the sort of activities that would appeal to D.
Both parties denied that they are inappropriately applying pressure to D in respect of the contact issue. In my view, both parties are well meaning in this regard, but I have no doubt that D does feel under some pressure. In these circumstances it is likely that he will indicate different things to different people, as to what his wishes are in respect of contact. Accordingly, I should be cautious in regards to what each of the parties has said about what D’s wishes are. At the end of the day, it may be that D is tired of having his wishes canvassed by the parties and in his grandmother’s words has “had enough” and will meet whatever contact is ordered with equanimity on the basis of “what happens, happens”. It may well be the case that the issue of what D’s wishes are has become irretrievably muddied by these proceedings and he himself would welcome the decision being taken out of his hands. The sad irony of this case is that both parties have asserted, in their respective evidence, that they have only adopted the positions that they each have about contact, because of what D has told them.
The Family Report
The family report in this matter was prepared by a psychologist, Mr Ian Law. Mr Law’s report is dated the 22nd of April, 2002 and was prepared when the issue of D’s residence was still live between the parties. Neither party required Mr Law to attend Court for cross-examination in respect of his report and accordingly it was not possible for his views to be canvassed regarding the present state of affairs in respect of D.
I have no doubt that the main thrust of Mr Law’s inquiry was directed to where and with whom D wished to live. When Mr Law interviewed D and asked him what he wished to occur with residency and contact, D replied that “things are pretty good the way they are at the moment” and that he did not want things to change.
From his observations, Mr Law was of the view that D had a strong bond with his siblings, parents and grandmother. However, on the basis of his interview with D, Mr Law was of the view that D’s clear preference was to maintain the status quo and, given his age and state of development, Mr Law was further of the view that this wish should be given a high degree of weight. This led him to the recommendation that D should continue to live with the grandmother and have contact with his father on the same basis as had prevailed since the orders of July 1996. However, in specific terms, Mr Law was not asked to direct his mind to the extension of contact as proposed by the father.
The law applicable to parenting orders
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)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
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (k) 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 in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve D’s best interests. The matters that are listed in section 68F(2) are as follows:
(a)Any wishes expressed by the child or children concerned and any factors such as the child or children’s maturity of level of understanding that is relevant in the circumstances;
(b)The nature of the relationship of the children concerned with the children’s parents and with other persons;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from any other person with whom he has been living;
(d)The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
(e)The capacity of parents or any persons to provide for the needs of the children, including their emotional and intellectual needs;
(f)The children’s maturity, sex and background;
(g)The need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill-treatment, violence or other behaviour;
(h)The attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
(i)Any issue relating to family violence;
(j)Those orders that are least likely to lead to the institution of further proceedings;
(k)Any other fact or circumstance.
Discussion
Both parties put significant stress in this case on what they believe D’s wishes are. The grandmother argues that Mr Law’s opinion is to be preferred in this regard as it is obviously untainted by any emotional involvement he has in the case. She submitted that as Mr Law was an unbiased and disinterested third party, he was a person in whom D was likely to confide his true wishes. In my view, I must be somewhat cautious in this regard. True it is that D did express a wish for things to stay as they are. However, his comments as described by Mr Law are not elaborate and seem to be primarily directed to the issue of residence.
In my view, D is likely to be apprehensive about changing any of the arrangements for his care, because of the undoubted tension between the parties, of which he is well aware. I suspect that he would prefer an impartial third party to make the necessary decision about contact, so that it cannot be seen that he has preferred one party over the other. I also suspect that he is somewhat conservative by nature and is probably not willing to embrace any change too readily.
In my view, the issue of D’s wishes should be set against the backdrop of his relationship with both the parties in this case. Clearly, he has a close and loving relationship with his grandmother. I also believe that he has a close and loving relationship with his father. His father has fought to play a strong and consistent role in his life from its beginning. That has not always been easy for him to do. Clearly, the relationship of father and son is one of the most significant of all human relationships. In my view, it is a relationship that should be fostered and strengthened. This is especially so, when for reasons beyond D’s control, his relationship with his mother is not a consistent one. Even if D is somewhat apprehensive about further contact with his father, it is incumbent upon the Court to consider more than short-term concerns in this regard. It would be sad if when D has grown older, he regrets having lost the opportunity to have spent more time with his father when he was younger. On any view, the contact sought by the father is not particularly extensive and in many ways his proposal that contact every weekend be stopped and replaced by alternate weekend contact makes arrangements more workable.
I do not believe that the proposals as advanced by the father will constitute any significant degree of change for D. He is now nine and a half years old. His relationship with all the significant people in his life is now firmly set and established. It is unlikely that he will feel any significant anxiety about being away from his grandmother and siblings for either a weekend each fortnight or for an additional period of two weeks during the year. The father’s proposals represent an orderly and gradual increase in contact, which is appropriate given D’s age and the consistent role the father has played in his life to date.
The father is capable of providing for D’s physical and emotional needs. D and the father share an interest in sport. As I have already indicated, the father defines his identity through his sporting interests and his membership of his football and cricket clubs. I do not accept that the father is what can be categorised as an “ugly father”, when it comes to D’s own sporting interests. I believe that the father wishes to be supportive of D’s various sporting interests, whether these be in basketball or soccer, sports which the father himself does not play. D may well be apprehensive about his father seeing him play but this is not in my view a reason to curtail contact at this stage. An interest in sport is likely to bring the two closer together in future, rather than the reverse.
There is no doubting that the father has been consistently late to many of the contact handovers. This does him no credit. However, to a large extent, his lateness is symptomatic of the unsuitability of the contact handover arrangements themselves. I do not believe that because of his lack of punctuality in the past, he will selfishly jeopardise D’s sporting activities in future. I accept his evidence that if he is not able to arrange for D to attend a sporting event on Saturday morning or Saturday afternoon, due to his own sporting commitments, he will arrange for a friend or relative to deliver D.
The grandmother is extremely critical of the father for failing to financially support D. In my view, she is not without blame in this area herself. I can understand why she would not want the father to know that she was caring for D on a full time basis. However, this was a matter about which the father was entitled to know. He was also entitled to know that the proper recipient of the child support assessment was indeed receiving it. I accept the father’s evidence that he is now willing to pay whatever is the assessed amount of child support for D. But in this regard the ball is in the grandmother’s court. It is up to her to make the proper application for assessment. As I have already indicated, in my view the father has shown a sensitivity to D’s needs by not pursuing his application for residence when Mr Law’s report became available. I accept his evidence that his reason for bringing these proceedings is so that he can play a significant role in D’s life, both now and in future. However, he does not wish to supplant the grandmother as D’s principle provider of care.
I also believe that once the issue of contact has been resolved between the parties by court orders, it is likely that tensions between the parties will subside and so the indirect pressure on D himself will reduce. Out of these current proceedings, a number of proposals have emerged which will I hope make communication between the parties somewhat easier in the future.
Conclusions
I have come to the conclusion that it is likely to be in D’s best interests for the contact between him and his father to be extended as the father proposes. In reaching this conclusion, I bear in mind that D and the father have a close and loving relationship. In my view, D is of an age when that relationship should be extended rather than curtailed. The father’s proposals are not extensive and by moving to an alternate weekend basis, arrangements are likely to be made easier rather than more complicated.
In my view, it is appropriate that alternate weekend contact should commence around about the time that D finishes his basketball game on Fridays and conclude on Sunday evenings. The handover point can either be at the basketball court or at Mrs W’s home in Kidman Park. It is also appropriate for D to be able to spend a longer period of block contact in each year with his father. I am satisfied that the father will ensure that these periods of block contact will be taken up with the sort of activities that a child of D’s age will find diverting and stimulating.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 7 August 2003
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