CAC and CGJ
[2003] FMCAfam 442
•29 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAC & CGJ | [2003] FMCAfam 442 |
| FAMILY LAW – CHILDREN – Contact – orders – variation – best interests of children – application to vary consent orders made two years previously to provide greater certainty in contact arrangements. CHILDREN – Residence – orders – variation – application to vary existing orders – whether test in Rice and Asplund (1979) FLC 90-725 satisfied. Family Law Act 1975 ss.60B; 65E; 68F Hayman (1976) FLC 90-140 |
| Applicant: | A C C |
| Respondent: | G J C |
| File No: | PAM 633 of 2001 |
| Delivered on: | 29 August 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 6 May and 26 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on her own behalf.
The Respondent appeared on his own behalf.
ORDERS
The application by the Respondent father to vary Orders 2 and 3 made by consent on 12 July 2001 so that the children M M C born 3 May 1994 and K A J C born 24 September 1997 reside with the Respondent is dismissed.
Orders 5 and 6 made on 12 July 2001 are discharged with the exception of Order 5(e).
The Respondent father is to have contact with the said children M M C and K A J C each alternate weekend during school term time from after school on Friday to 6.00pm on Sunday extending to 6.00pm on Monday if the Monday is a public holiday, commencing on Friday 5 September 2003.
For the purpose of exercising contact in accordance with Order 3, the father is to collect the said children from their school at the commencement of each contact period and return the children to the mother at the McDonalds Family Restaurant at P H B at the conclusion of each contact period.
Alternate weekend contact in accordance with Order 3 will be suspended during any school holiday period and will re-commence after school on the first Friday of each school term.
The father is to have contact with the said children from 9.00am to 6.00pm on Father’s Day in each year if that day should fall on a day when the father would not normally be entitled to have contact with the said children as provided in Order 3 above.
The father is not entitled to contact on Mother’s Day in each year and if that day should fall on a day when the father would otherwise be entitled to have contact as provided in Order 3 he is to return the said children to the mother by 9.00am on that day.
The mother is to do all acts and things necessary to authorise the Principal of any school or schools attended by either or both of the children to provide the father on a regular basis at his expense copies of any school reports, bulletins, newsletters, information about school photographs and any other material normally provided to parents of children attending that school.
The parties are to forward a copy of these Orders to the Principal of the school at which the children currently attend within fourteen (14) days of the date of these Orders.
In the event of either or both of the said children sustaining any illness or injury requiring treatment at a hospital or treatment by a specialist medical practitioner the mother is to inform the father of that fact as soon as possible and in any event within six (6) hours.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 633 of 2001
| A C C |
Applicant
And
| G J C |
Respondent
REASONS FOR JUDGMENT
Application
There are two matters before the Court today; a contravention application which is for mention; there is a decision to be handed down in respect of a cross application to vary contact orders and vary a residence order.
I was proposing to hand down the decision first, as the parties might want to consider the ramifications of that before we look at where we are going with the contravention application.
The application before the Court is an application by the mother to vary orders which were made by consent on 12 July 2001. Those orders relate to the parties' two children, M M C who was born on 3 May 1994, and K A J C who was born on 24 September 1997. The children are currently residing with the applicant mother.
The orders which are sought to be varied by the mother were final orders, made by consent, for residence and contact. There were some later orders made on 26 July 2001 relating to some specific aspects of holiday contact. Those orders are not disputed nor are the parties seeking to vary or change them, and they consequently remain in force irrespective of the outcome of these proceedings.
The orders that the mother seeks to have varied relate to the father's contact on alternate weekends, from after school Thursday until before school on Monday, with a variety of provisions relating to the father's shift work.
The mother also seeks to vary Order 6 which relates to suspension of alternate weekend contact during the school holidays and arrangements for the time when that contact should recommence. The recommencement of the contact is dependent on whether or not the father exercised contact with the children during the preceding school holiday period and, if he did, whether he exercised that contact for the whole of the school holiday period or for a part of the school holiday period. If he exercised contact for only a part of that school holiday period, the variable factor was whether or not the contact was in the first half or the second half of the holidays and the significance of that related to the recommencement of the weekend contact.
The father has filed a Response. In his Response he opposes the orders sought by the mother, but he does more than that. He seeks to reopen the entire question of residence and seeks to vary the residence orders so as to provide, first of all, that the children should live with the father and second, that he should have the sole responsibility of their day-to-day care, welfare and development of the children.
There is no doubt that the competing applications seeking orders relating to the children are a long way apart.
Background
The parties are separated and divorced. Each party has, since separation, formed another relationship, although neither of those relationships is currently ongoing.
There has been a history of litigation between the parties. The original proceedings commenced in the Family Court, and the matter was later transferred to this Court in 2000. There have been contravention proceedings since. In fact, fresh contravention proceedings have been brought before the Court quite recently, hence are before me for a mention today.
It is not helpful to embark on a detailed analysis of the history of litigation between the parties, except to say that, on 15 December 1999 in the Family Court, orders were made until further order providing that the children should reside with the mother, and that the father should have contact with those children. The contact arrangements implemented by the Family Court defined contact to the father on an alternate weekend basis and covered some other matters. There was a variation to those orders in May of 2000, but the matter was dealt with on a final basis in this Court on 12 July 2001, and on that occasion orders were made by consent. Those orders became subject to an application for variation in the proceedings before this Court on 6 May 2003 and 26 August 2003, and for which I am about to make orders in this judgement.
On 26 July 2001 there were some further orders made which were not made by consent. They were made after a defended hearing relating to Christmas contact and certain school holiday contact. There were some ‘specific issues’ orders made at that time.
Issues
What then are the issues between the parties, bearing in mind the fact that they are a long way apart in their positions? The mother says that the contact orders need to be varied because the nature of the contact exercised by the father has been variable and erratic. At times, she said, he has not exercised the contact that the orders would provide. As a result, she says, this has caused considerable disruption both to her and to the children. The disruption has included not being able to attend functions that she has arranged. She is particularly of the view that the contact orders have not been adhered to and that whilst she has endeavoured to adhere to the times as set out in the orders, she claims that the father has not and that there is a need for the orders to be less flexible than they currently are.
One particular issue that she sees is the recommencement of alternate weekend contact after school holidays have finished. The original orders provided for the recommencement of alternate weekend contact to depend on the contact that the father had exercised during the preceding school holiday. Where holiday arrangements were changed, the mother has submitted that she has found herself in a difficult position because the starting time of the alternate weekends was changed, so that the arrangements that she has made on the assumption that the children would be with her on a particular weekend, would need to be altered and she may have made arrangements on the assumption that the children would not be with her on a particular weekend, then found herself in a position where she could not comply with those arrangements.
She needs certainty as to when the father is going to exercise contact and when he is not. In short, the mother’s frustration is that the father has failed to adhere to the arrangements that were reached and that has caused her and the children a degree of uncertainty and disruption.
The father, however, says that the relationship between the parties is at such a low point that the best interests of the children would be served by their going to live with him. His view is that if the children resided with him there would be fewer disagreements about contact. He does not wish to take a difficult view about contact and indeed he would make efforts to see that the children had adequate and proper contact with their mother.
I am of a belief that, notwithstanding the fact the application to vary the residence has been brought by the respondent, that issue needs to be dealt with first before I look at the question of what contact arrangements there should be. It is a fundamental issue.
Current law to be applied
The situation is that, when I look at the law to be applied, the Courts have constantly taken the position that before residence or custody orders, as they used to be called, should be reopened, there must be shown to be a sufficient change of circumstances to justify reopening such a fundamental issue.
This is a matter that was dealt with by the Full Court of the Family Court in the early years of the Family Law Act, in a decision called Hayman (1976) FLC 90-140 where Murray and Lusink JJ dealt with the decision by Barber J in an unreported decision of the Supreme Court of Victoria in a case called Gilder (1967) Vic Sup Ct 16-320 which was heard on 17 February 1967.
In Hayman (supra), their Honours adopted the decision in Gilder (supra) saying:
“Whilst it is true that custody is never final, it is not open to an unsuccessful party to return to Court repeatedly in the hope of obtaining a favourable order. It may be that circumstances have altered to such a degree that it is essential, in the interests of the child, that questions relating to custodial arrangements be re-litigated. However, it is accepted that there must be real issues to be decided, issues which have arisen which have not been previously traversed.”
This principle was continued in the well known decision of the Full Court in Rice v Asplund (1978) 6 Fam LR 570, (1979) FLC 90-725. In that case, the Full Court held that:
“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 -
and to quote Barber J in the decision in Gilder (supra):
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”.
This matter was considered by the Full Court in a decision in Freeman (1987) FLC 91-857 where there was an application to discharge a custody order that had been made by consent. The Full Court held that once a Court had settled the question of custody:
“…an order made should not be overturned, unless sufficiently weighty new facts and circumstances were shown to exist, which threw sufficient doubt on the desirability of continuing the custodial arrangements affected by the order. Those new facts and circumstances should be such as to necessitate a fresh investigation, to safeguard the best interests of the children”.
Strauss J referred in his judgment to the fact that the matters sought be reopened by the applicant in the proceedings to vary existing orders, was one that had been concluded by the consent of the parties. His Honour said, at page 76,470:
“When that order was made, the matter was about to heard in the defended list. It was not a matter which was compromised at a time when the parties had not been able to give it full and proper consideration. Each party had filed a number of affidavits. A full welfare report had been prepared and had been made available to each of the parties. As the husband stated, he settled on counsel's advice”.
His Honour went on to point out:
“The alleged changes in circumstances were, in my view, no more than the kind of changes that often occur in the lives of people of the ages of these parties”.
There are two ways in which this matter can be looked at. It can be dealt with as a threshold issue, as a preliminary issue before the full hearing, or it can be considered as part of a full hearing. The authorities allow the trial Judge or Federal Magistrate to adopt either procedure. In this case, as the original application by the mother had been to vary the contact orders, and the application to vary residence was brought in the response, I took the view that the matter should be dealt with as part of the overall hearing.
Principles to be applied
I am of a view that the principles otherwise are the same. The principles that can be said are:
a)that the onus is on the applicant who seeks to reverse an earlier residence order to satisfy the Court that there has been a change in circumstances since the original order was made, sufficient to require the matter to be re-litigated. The principal is the same, whether the earlier order is one made after a defended hearing, or one which was made by consent, provided that the relevant issues were considered;
b)further, the change in circumstances must be sufficient to warrant a re-examination of the issue of residence, but need not satisfy the Court that those changed circumstances would result in a change to the orders, only that there is a real likelihood of such a change and;
c)finally, the evidence of changed circumstances to be considered by the Court is not restricted to the evidence available at the time the application was commenced. It is the evidence available at the time the circumstances are considered by the Court.
What then are the circumstances upon which the father relies to reopen the question of residence? In the proceedings, which were heard on 6th May, the father was critical of what he said were the number of people who had resided in the residence of the applicant and the children since the orders were made. There had been guests of one sort or another including a woman from another country who had spent time boarding with the family.
The mother had, for a time, formed a relationship with another gentleman, although that relationship is now at an end except that the parties remain on friendly terms. It was put to the mother, and she denied, that she was, in effect, running a boarding house. The mother was able to provide details of those people who had stayed in the residence as boarders for periods of time.
A further criticism that was made by the father, which was amplified more when the matter came back to Court on the 26th of this month, related to the mother's apparent inability to manage her finances. The father's criticism was that the mother did not have sufficient funds to meet her accommodation and living expenses, and the accommodation and living expenses of the children.
The mother denied that as a general principle. It was her evidence that in the earlier residence in which she lived, she had had some financial difficulties in meeting the rent. Since she had changed to her present residence, the rent was of a more affordable nature and that she no longer had those difficulties. She commented with some vigour that the only financial difficulties that she now suffered were those brought about by what she said was the father's inability or failure to pay what she considered to be a reasonable amount of child support. Otherwise, her own income was sufficient to assist her to meet the needs of the children.
The father was critical of two other issues. First, the lack of information provided to him about the children's schooling. The evidence is that both children are now at school. The younger child, K, has commenced school and the father has complained that he has received very little information about the progress of the children at school.
The mother in her evidence was critical of the father's lack of knowledge of the children's educational progress and was particularly critical of what she said was the father's lack of knowledge of the abilities of the child, M, who is of above average aptitude and intelligence and is doing particularly well at her present school.
On the question of educational issues, the father expressed the view that there was a possibility that if the children resided with him, he would change the children's schools to bring them to a school which was more geographically convenient.
The father was also critical of the mother's failure, as he saw it, to provide him with information about the children's medical condition. The elder child, M, suffers and has suffered from asthma and from time to time has required the use of a puffer and has been on medication. The younger child, K, has suffered from certain allergies, and difficulties relating to the consumption of diary products. The mother says that these conditions are under control.
The father was critical of an incident where the child, K, sustained an injury in a fall at school, and as a result, was transported to hospital by ambulance. The mother was informed by the school and made her way to the hospital at W to meet the child in the ambulance. The child was treated at hospital and allowed to leave. The father's complaint was that as he was the natural father of the child and parent with some contact orders in his favour, that he was not consulted and was not made aware of this until significantly later.
The father also gave evidence to the fact that his later marriage, a marriage that he had entered into after the marriage between these parties ended, had resulted in separation and he was now residing by himself. He expressed a view that, should he be successful in his application for residence, he would wish to play a greater role as a father by changing his work situation by making application to his employer that he would go from being a full-time employee to working on a part-time basis. Basically, those are the proposals by the father in respect of a change of residence, and the reasons why the father says that a change of residence would be appropriate.
Authorities to be applied
I look at the matters that I must consider and the authorities to which I have referred, and the test in Rice v Asplund. The test is in fact a current part of the law, notwithstanding the fact that it dates back, certainly, to the late 1960s. It has recently been reaffirmed in the decision in King v Finneran (2001) FLC 91-857, which was an appeal from a decision by a Federal Magistrate. In that case Collier J sitting on the Full Court, conducted a comprehensive review of the authorities and took the view that the test was an appropriate test and that there was, as I mentioned earlier, a discretion in the trial Judge or Federal Magistrate to decide the matter either as a threshold issue, as Ryan FM had done in that case, or to deal with the matter as part of the overall case, as I have done in this case.
The fact that the mother has changed her residence to another residence still within the S metropolitan area is not a circumstance which, to my mind, would justify reopening the question of residence.
The fact that there has been an ongoing hostility between the parties and differences, particularly about contact arrangements, remains a constant. I am not of a view that that is a fresh circumstance to justify reopening the question of residence.
The changes to the father's personal situation in that he now resides by himself, and his proposals to change the children's schooling and his proposals to change his conditions of employment, to my mind, do not justify reopening the question of residence.
The best interests of the children require that there should be a stability in their lives. I am not satisfied that there has been shown any evidence that the children's continuing residence with the mother establishes any threat to the children's welfare or best interests. There has been a long term residence with the mother and certainly that has been an established situation since, not only the final orders in 2001, but the interim orders made in the Family Court in December 1999.
The fact that residence had been decided by a consent order a little over 2 years previously, is a matter that, to my mind, is significant. The significance of that particular issue also occurred to Collier J in deciding the matter of King v Finneran to which I have earlier referred, and His Honour referred to the decision of the Full Court of the Family Court in D v Y (1995) FLC 92-581. The Full Court held in that case that in circumstances where the issue of custody or residence had been litigated, on a defended basis a little over 2 years previously, a judge would be extremely loathe to reopen the issue of custody except on strong grounds.
Their Honours said, at page 88,368:
“The change or fresh circumstances must be such that, upon being advised of its existence, a Court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a Court must be satisfied that the fresh or changed circumstances would result in a change to the orders, it merely indicates that a change or fresh circumstances must be such that, if taken into account, there is a real likelihood that change may follow”.
In this case, the reasons given by the father in support of his application to change residence do not, either singularly or collectively, amount to the strong grounds that a Court would require to reopen the issue of residence. I am of a view that the father's application to vary the residence of the children from the mother to himself, must be dismissed.
I turn now to the mother's application to vary the contact orders. The mother seeks certainty. The mother says that the lack of certainty in her life and the children's lives, arises from the sporadic nature of the contact that she says the father has exercised. In particular, the difficulties in school holiday contact, which represent a starting point for alternate weekend contact during school term time, has an ongoing effect on the mother's life and the children's lives during the school term because of the difficulty in establishing or predicting when alternate weekend contact is to start. The mother sees that as highly disruptive.
The mother produced, and it was admitted into evidence, a schedule showing dates when the father had exercised contact and, more importantly, when she said that the father should have exercised contact but had not. The father made the point, and his estranged wife, S C, who also gave evidence, made the point that contact was sought as often as the orders would allow, but that neither the father or the present Mrs C took diary notes of the dates. They could not produce a schedule showing when contact had taken place, and there was an implication in the father's evidence that the mother's concentration on dates and recording whether contact took place or not, was perhaps an over-reaction. His view was a more holistic view that he wanted contact, he wanted to be a father, and he was exercising contact when he could.
The existing orders had very much taken account of the father's employment as a police officer, and the fact that police officers are required to work shift work and that at times they are required to change their arrangements, often at short notice. Police officers work to a roster, the officers of a particular station, or in a particular local area command, need to bid for their leave and need to predict to their employer when they wish to take leave. Obviously, there is a demand for leave during school holidays.
The mother, however, needed certainty and the earlier orders that were made covered the circumstances where there would be a discretion given so that holiday contact could take into account those exigencies. What the mother says in effect is that it hasn't worked, that for one reason or another, whether the changed arrangements are due to the father's particular proclivities or whether they are due to the exigencies of his employment, she and the children have been thrown into turmoil when contact is either taken place when it was not expected to take place, or not taking place when it should have taken place, and that has had an ongoing effect on alternate weekend contact.
The mother also raised the issue of the child, M, suffering from headaches which appeared to be caused by tension. As a result of that, the commencement after school on a Thursday had been discontinued by the parties and contact commenced after school on a Friday.
The father had sought contact after school on a Thursday as his roster at the time would permit it, but under the current situation the father is not now in a position where he can always guarantee that he can be available to care for the children on a Thursday.
I must look at what is in the best interests of the children. Section 65E of the Family Law Act 1975 sets the foundation for that consideration. The best interests of the child are the paramount consideration. Subject to the best interest of the child, I look at the principles set out in s.60B of the Family Law Act and that section refers to children's right to know and be brought up both parents and have contact with those parents and other adults significant to them.
Each party, I would comment, raised in their case concerns about the difficulty in the contact arrangements leading to the children not having contact with other adults who were significant to the children, such as grandparents. Each parent expressed the wished that the children should spend time with those parents; the mother with her parents; the father with his mother who has visited from the United States.
The Best Interests of the Children
Sub-section 68F(2) sets out the matters that the Court must consider in deciding what is in the children's best interest. It contains a set of guidelines. It is an exhaustive list. Not all of the matters are relevant. Paragraph (a) of that sub-section relates to wishes expressed by the child and the age and level of maturity of the child. The mother commented that the wishes of the child had not been taken into account, presumably by the father.
I have not got the benefit of independent evidence of the wishes of the children before me, and I note the ages of the children and that they are still relatively young. M was born in May 1994, she is 9 years of age. K was born in September 1997, he is just of school age. Whilst they are young children, their wishes would not be considered irrelevant, but as I say, I have no independent evidence of that.
I look at the nature of the relationship of the children with each of their parents. Whilst there are tensions to say the least between the parties about parenting arrangements, I am satisfied that the children have a good relationship with each parent. On one occasion, the mother said of the father, "He's a good dad." She had her own issues with him, but as far as being a father to the children was concerned, she was of the view that the relationship with the children and their father was good.
I look at the likely effect of any changes in the children's circumstances. Had the change of residence been a realistic proposition, there would have been a significant change in the children's circumstances. The mother's changes that she seeks to the contact orders would, on the mother's evidence, produce a greater stability in the children's lives although it would clearly bring about some reduction on the amount of time that the children would spend with their father, according to the orders. On the mother's evidence, that difference would be more notional than real as her evidence is that the children have spent less time with their father than the existing orders would allow.
I look at the practical difficulty and expenses of a child having contact with a parent, and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
The parties both live in suburbs of S. They appear to have access to motor vehicles. The only practical difficulties about contact seems to be the disagreements between the parties.
I look at the capacity of each parent to provide for the needs of the children including emotional and intellectual needs. The father was critical of the mother's financial capacity to deal with the children's physical needs to which the mother replied that if he paid the proper amount of child support, there would be no financial difficulty. Certainly, since she's moved to her current accommodation, which is less expensive than previous accommodation.
The mother is a primary school teacher by occupation and appears to take a keen interest in the children's educational needs as witness her evidence about the particular abilities of M. The father too, has a wish to be involved in the children's educational progress as witness his request for further information about the children's progress at school. At the same time, his proposal to change the children's school was subject to a deal of criticism by the mother as not being in the children's educational interest.
The ongoing hostility between the parties appears to be a matter that has, at the very least, the potential if not the actuality, for causing emotional difficulty with the children who have the right to have a relationship with both parents.
Section 68F(2)
I look under s.68F(2)(f), at the children's maturity, sex and background. M is a little girl, K is a little boy. Their mother is of Caucasian/Australian background. Their father is of African/American background. The parents themselves are very different people with different attitudes. The mother raised, interestingly enough, an issue of slight health difficulties which can be sustained with some skin problems relating to children of mixed race background. She did not present that as a major issue, but as an issue which can quite easily be dealt with and I am of a view that it is a matter that would cause the Court no concern.
The different national backgrounds of the parties and their parents' history is a matter that should allow the children to have a richness in their lives. The father's current occupation is a police officer, his previous service in the United States navy gives a richness to his background and gives the children the ability to see their father as different and perhaps more exciting than other people in the community.
The mother's employment as a schoolteacher also allows the children to see her as a worthwhile member of the community, performing a worthwhile task. It should be possible for the children to be able to gain the benefit of the positive aspects of the background of both of their parents.
Conclusion
I look at the need to protect the children from physical or psychological harm caused, or that may be caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour or being directly or indirectly opposed to that violence, or abuse or ill-treatment towards another person.
I couple that with family violence matters that are looked at by the Court under other paragraphs of s.68F(2) including family violence orders. There has been an acrimonious relationship between the mother and the father but there are no apprehended violence orders in force between the two parties. There have, however, been apprehended violence proceedings and an order in force between the mother and the father's present but estranged wife. That is a matter that would have some effect on the children although the fact that the father and his current wife no longer reside together, but appear to remain on cordial terms, would tend to reduce that impact on the children.
I look at the attitude to the children to the responsibilities of parenthood demonstrated by each of the parents. The father appears to be of the view that the mother is perhaps over-protective and over‑controlling of the children, and that in that way has acted to reduce his capacity to act as a father towards the children. The mother is equally critical of the father, seeing him as one who does not make use of the contact available to him under the existing orders, and acting in a way that disrupts contact arrangements, which of itself, it disruptive to the children. The parties remain a long way apart on that issue.
I must look at whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children (s.68F(2)(k). I have commented before that that is perhaps a counsel of perfection although the Court's approach these orders on the basis that there must be, as far as possible, an end to litigation. There must be finality.
The mother asks for contact orders that are less flexible and allow a smaller degree of leeway than the orders currently in existence. Her view is that the flexibility has led to uncertainty and disruption and that has impacted on the children's lives. It has also impacted on her life, but the matter that I must take into consideration, is the impact of this uncertainty and disruption on the children's lives. I am of a view that the point that the mother makes is well taken.
The fact that there is an ongoing animosity between the parties does not lead me to the view that flexible arrangements that rely on negotiations between the parties, are going to be successful for the children's welfare. Those arrangements were tried and the flexibility built-in to the consent orders of 12 February 2001, has not led to a peaceful contact arrangement. It has led to further litigation. There must be an end to litigation and I am of the view that, where parties fail to agree about contact arrangements in general and, in particular, that a Court must need to impose a set of arrangements, that, whilst less flexible, will lead to greater certainty.
Greater certainty will lead to less disruption. It will mean that the parties will be obliged to organise their lives within stricter guidelines, which may at times, be onerous on the parents. If, however, it means that the children have a clearer understanding as to where they are going to be and with whom, at any particular time, to my mind, this will benefit the children in that it will give them some stability. Children are adaptable and children can deal with arrangements that give them time with parents who love them. I have no doubt that both of these parents love their children. What they cannot do, is agree.
I propose therefore to impose some orders on the parties, which will provide more stricter guidelines and a lesser degree of flexibility. I am mindful of the fact though, that the father's wish to have greater knowledge of his children's progress at school and to take a greater interest in the children's educational progress, is one that can only be applauded.
The mother is critical of the father, as I said, for not being aware of the intellect, particularly of M, and her extremely good progress at school. She described her, in evidence, as being in the top 2 per cent. Whether that makes her gifted or whether it makes her talented, I do not know, but if the parents are fortunate enough to have a child with this degree of aptitude, this is a matter not only in which they can take pride, but where the father would wish to be fully aware of his child's abilities.
The arrangements for the father to obtain information about the children's progress at school have not, on the father's evidence, been as successful as he would have like, leading him to a degree of frustration. This should not be necessary, and he should receive material on a regular basis, but it should not be left to the responsibility of the mother to provide it.
As far as medical matters relating to the children are concerned, I am not of a view that every time a child has a cold or a rash or needs to see a general practitioner for a minor medical issue, that the father needs a particular report on the matter. Children go to doctors from time to time. Children need medication from time to time. The mother can normally make the father aware of that on contact. If the child does become seriously ill or if the child sustains an injury, if the child needs hospital treatment, if a child needs to go a medical specialist, these are matters that the father needs to know about.
The father has a right to know about, and if he knows about them promptly, he will be able to understand matters that are affecting the child and it may well give him a greater understanding of the role that the mother plays as the children's primary carer because, from the orders that I intend to make today, the mother will continue as the children's primary carer.
It is for all of these reasons that I make the Orders set out at the commencement of this judgement.
On the question of the contravention application, which was brought by the mother, Mr C, the respondent and father, indicated that he wished to obtain legal advice. I believe the respondent should have the opportunity to obtain that advice.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 29 September 2003
0
0
0