CM & CC
[2002] FMCAfam 196
•24 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CM & CC | [2002] FMCAfam 196 |
| FAMILY LAW – CHILDREN – Contact – wishes of the children – transferred from the Family Court of Australia. |
H v W (1995) FLC 92 at 598
R v R, Childrens Wishes (2000) FLC 93 at 000
Bright v Bright & Bright v Mackley (1995) FLC 92-570
Family Law Act1975, ss.60B(2); 60B(2)(b); 65E; 68F(2); 68F(2)(a); 68F(2)(f)
| Applicant: | M A C |
| Respondent: | C M C |
| File No: | PAM 769 of 2002 |
| Delivered on: | 24 May 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 24 May 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hazelwood |
| Counsel for the Respondent: | Mr Bell |
| Solicitors for the Respondent: | Mr Battey |
ORDERS
Orders 1, 2 and 3 made by consent on 11 December 2001 are discharged
The children N G C born 28 December 1991, R T C born 11 October 1996 and J R C born 27 August 1999 are to reside with the mother as follows:
(a)from 5.30 pm on Friday to 6 pm on Sunday during school term time commencing on Friday 31 May 2002 and each alternate weekend thereafter provided that if the Monday following a Sunday is a public holiday, then the period of residence will conclude at 6 pm on the Monday;
(b)from 5.30 pm each other Friday to 6 pm on the Saturday immediately following during school term time, commencing on Friday 7 June 2002;
(c)as to the children N G C and R T C, from the conclusion of school during school term time each Wednesday until the commencement of school on the Thursday morning;
(d)as to the child J R C, from the conclusion of child care or the conclusion of the time that she resides with the father each Wednesday during school term time until 6 pm on the Thursday, until the said child commences to attend school;
(e)and after the date when the said child J R C commences to attend school, from the conclusion of school during school term time each Wednesday, until the commencement of school on the Thursday morning;
(f)for one half of each New South Wales school holiday period to alternate between the first half and the second half in each year being the second half in 2002 and the first half in 2003 and alternating thereafter;
(g)for periods of no less than two hours on the children's birthdays and the mother' birthday if such days fall on a school day. After four hours if such days fall on a day when the children are not required to attend school and at times agreed between the parties;
(h)for periods on special event occasions with the mother's extended family and on the basis that the children are to reside with the father on special event occasions with the father's family on the same basis;
(i)on Mother's Day in each year from 6 pm on the Saturday immediately preceding Mother's Day until 6 pm on Mother's Day and in the event that Father's Day falls on a day when the children would otherwise reside with the mother, then that period of residence will conclude at 6 pm on the Saturday immediately preceding Father's Day;
(j)from 4 pm on Christmas Eve until 12.30 pm on Christmas Day 2002 and each alternate year thereafter;
(k)from 12.30 pm on Christmas Day until 4 pm on Boxing Day,
26 December 2003 and each alternate year thereafter; and(l)at such other times as may be arranged between the parties.
The children are to reside with the father at all other times.
In order that residence should take place pursuant to these Orders, the mother or her nominee, being the mother's mother, the mother's father or sister shall collect the children from school or child care, or the father's home as the case may be at the commencement of the residence period, and return the children to school or the father's home as the case may be at the conclusion of each period of residence.
Periods when the children reside with the mother during school holidays as provided by Order 2(f) above:
(a)will commence at 10 am;
(b)will conclude at 6 pm;
(c)will be calculated from the day immediately after the last day of school until and including the day immediately before school resumes; and
(d)days designated by the school as pupil free days will be deemed to be part of the school holidays.
(e)Neither party is to denigrate or criticise the other party in the presence or hearing of all or any of the children or permit any third person to do so.
(f)Orders 4, 5, 6, 7, 8, 9, 10 and 11 made by consent and pending further Order on 11 December 2001 are confirmed as final Orders, with the exception of an application for costs which I understand is to be an issue.
(g)The matter is removed from the Pending Cases List.
(h)I require a transcript of my reasons for this decision.
FEDERAL MAGISTRATES |
PAM 769 OF 2002
| M A C |
Applicant
And
| C M C |
Respondent
DRAFT REASONS FOR JUDGMENT
Certification by the mother of three children: N G C born 28 December 1991 aged ten, R T C who was born on 11 October 1996 and is therefore aged five, and J R C who was born on 27 August 1999 and is now aged two years and nine months. N and R are at school. J is too young for school.
The parties were married on 28 November 1993, although they had been together for a period of time before then. They are both 30 years of age, having been born in January and March 1972. They separated on 8 August 2001 and the children have resided with the father since then. The father has been out of the paid work force and acting as the children's carer since about the time that N was born. The parties do not agree about the extent of the role played by the mother as care giver to the children but this is of little relevance to these proceedings today.
The mother has a responsible position with the V I C which requires her to work 40 to 50 hours a week. She has negotiated with her employer an arrangement where she can work at home each Thursday, subject to any emergency and she uses that time to spend with the children, particularly J.
There were proceedings commenced in the Local Court at P, transferred to the Family Court and there was a further application commenced in the Family Court. Proceedings have been consolidated and it is agreed for all intents and purposes, that the mother is the applicant.
The matter came before Registrar Gersback in the Family Court on
11 December and certain Orders were made by consent relating to the mother's contact with the children. The parties have since attended confidential counselling with a Court Counsellor.
The situation as far as the arrangements are concerned is that the children spend alternate weekends with their mother. That is not in contention. As I said however, the mother has negotiated every Thursday off from her work, whereby she works at home. There is an arrangement whereby the mother collects the three children on the Wednesday afternoon after school. They go home to the mother's residence which is a home unit. They have dinner, stay the night. The two older children go to school on the Thursday. J stays at home with the mother who works at home and spends time with little J. The mother collects the two older children from school on the Thursday afternoon and the children stay the Thursday night with her. The idea is that the elder children go to school on the Friday and J is returned to her father.
The mother considers that that is an arrangement which should continue on a final basis. Her reason for this is that it is more or less a shared resident situation, although the children spend a greater period of time with their father. As she says, each fortnight the children spend eight nights with their father and six nights with their mother. Why the time during the week, which is each week. The mother is most concerned that she should play a role in the day to day going to school activities of the children. Her evidence was that she was concerned that it was not just a situation where the children could be with her on the weekends and with their father during school days. She wants to play a role in the going to school activities and she believes that it is important that the children see that she is involved in that part of their lives as a mother.
The father does not oppose the mother spending time with the children, but he does oppose the continuation of the present Wednesday night to Friday morning contact arrangements each week. He says that it is disruptive to the children. He says that the child N in particular, who is ten years old and therefore well and truly able to express these opinions – N is saying that she does not want to go to her mother's place for that period of time and stay over. Certainly he said in evidence, that it would be a good thing for the children to have dinner with their mother on a Wednesday night. He suggests a couple of hours each Wednesday afternoon and evening, but he says that staying for that period of time with their mother causes disruption and that has been seen with N and her statements, and fears that it would continue with all of the children.
What is the father's difficulty as far as the disruption is concerned. There are three issues. The father says that at times, because of the nature of the mother's work, that she is not always available on the Wednesday afternoon to pick the children up from school, and someone else has to do it. Sometimes she picks all three children up from the father's residence. Sometimes she arranges for her family, the mother, father or sister to do it. On the Thursday the children go off to school, the older children. J stays with the mother. The father expresses the concern that the mother is working at home. She is not able to give her attention to the supervision of J. Thursday afternoon the elder children come home from school and the Friday morning the father says is the third difficult point, because at times the nature of the mother's job can mean that she is called to work early. Sometimes she has to travel some distances. On one occasion she gave evidence there was a derailment at W C in northern New South Wales which involved her getting off early in the morning. The father has said that at times the children are brought back early, sometimes without breakfast. Sometimes they go to school, sometimes they go to her. He sees that as an area of disruption.
The Court looks at the principles to be considered in contact proceedings. I am mindful of the principles set out in s.60B(2). They are principles the Court must take into consideration except when the application of any of them is, or would be contrary to the child's best interest. Sub-s.60B(2)(b) refers to children’s right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. Section 65E of the Family Law Act must be followed by any Court exercising jurisdiction under the Family Law Act making parenting Orders. This section lays down that the Court must regard the best interests of the child as the paramount consideration. Section 68F(2) to which I was referred by counsel for both parties, sets out a number of matters that a Court must consider when determining what is in a child's best interests. There are 12 of them in all from subsection 68F(2)(a) through (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered as the Court has done in this matter. Sub-s.68F(2)(a) requires the Court to consider any wishes expressed by the child and any factors such as the child's maturity and level of understanding that may be considered to be relevant to the weight the Court should give those expressed wishes. A child's maturity as well as a child's sex and background are also to be considered under subsection 68F(2)(f).
In this case J is certainly too young for consideration to be given to any expressed wishes and there is no evidence of any wishes expressed. R is five. Just started school. There is no specific evidence of R's wishes at this stage. He is still relatively young, but I am mindful of the fact that the Full Court of the Family Court has held that the wishes of children as young as eight years down to four years, would not be irrelevant. N's wishes are the subject of evidence and these wishes are expressed through the father's evidence and also the evidence of the father's mother.
It is clear that N's wishes go two ways. The father and the paternal grandmother give evidence of N expressing a dislike over having to stay at the mother's place for two nights every week during weekdays. There is no evidence of any of the children expressing wishes that they should not spend time with their mother on weekends. There is also evidence that N in particular, misses the mother. There have been incidents where N has been tearful and has wanted to spend more time with the mother. Wishes of the child of course, are matters that have been considered in some detail by the Full Court of the Family Court of Australia in H v W (1995) FLC 92 at 598 and the Full Court made it clear that the wishes of children are important and proper in that realistic weight should be attached to any wishes expressed by the children.
Baker J held that a child's wishes must not only be considered, but must be shown to have been considered in reasons for judgment of the trial judge. Wishes of the children were also considered by the Full Court of the Family Court in R v R, Children's Wishes (2000) FLC 93 at 000, where the Court held that:
“Whilst proper weight should be given to children's wishes, that did not mean that those wishes should not be departed from. Appropriate and careful consideration must be given to those wishes. It is not necessary for the Court in making Orders contrary to the children's wishes to determine that those wishes are unsound or founded on improper considerations or influenced by others. The Court must consider the nature of the relationship of the child too, with each of the child's parents where applicable and with other parents".
In Bright v Bright and Bright v Mackley, the late Treyvaud J considered the desirability of a child having contact with the grandparents. There is certainly evidence that the children have a good relationship with both maternal and paternal grandparents, and I heard evidence from the paternal grandmother and I am satisfied the children have a good relationship with the grandparents and that should be encouraged.
The practical difficulty and expense of a child having a contact is not particularly relevant in this case. The parties all live relatively close to each other and near to the children's school. There is no criticism made of the parenting ability of either child or attitudes to parenting. There is no major change proposed to the child's circumstances. There are no allegations of family violence. There are no Apprehended Violence Orders in force and each parent has a strong view about the responsibilities of parenthood. The views are different, but the views on the evidence that I heard, are sincerely held and each parent believes that his and her position as far as the Court can ascertain, is in the best interests of the children.
It would be nice if the Court could make an Order that would be least likely to lead to the institution of further proceedings in relation to the child or the children in this case. It is usually more relevant in residence proceedings, but it is the wish of the Court that the Orders to be made today will reduce tensions between the parties and provide an arrangement which will be in the best interests of the children.
There do not seem to be other unusual circumstances that the Court needs to take into account. It is not unusual in this day and age for a father to be a full time care giver and for a mother to be in the paid workforce. I accept the fact, as I said, that the mother has a responsible position with V I C and she receives a salary and pays a significant amount of child support.
What then are the issues? The father is saying go back to alternate weekends. He conceded in the witness box that dinner on a Wednesday night for a couple of hours or what was appropriate, would be a good way for the children to keep in contact with their mother. He made some criticisms of the nature of the mother's accommodation which was a home unit which seems to have several bedrooms. It does not have the same garden swings and other arrangements for the children that are apparently available at the residence where the father lives. The children have a dog and being with their mother for two nights keeps them apart from the dog. I indicated during the hearing I was not going to make an Order that the mother acquire a dog of any sort and I am of a view that there are so many hundreds and hundreds of thousands of families living in home units that the Court would not regard that as an unusual deleterious circumstance.
The father's criticism of the current arrangements, as I've said, is to the disruption to the children in those three areas. The Wednesday night because the mother at times cannot always get home from work as early as she would like and needs to make other arrangements. The Thursday when she is working at home and has J with her and the children are at school. He says that he does not believe that she can concentrate on supervision if she is also trying to work. The overnight on Thursday leading to the elder children supposedly going to school, but at times having to be delivered to their father early because of some work requirement of the mother. They are his concerns. Against this, the mother says that if the children were to spend every weekend with her, that is not a good arrangement and that, as I said, she is not involved in the children's going to school and also leads to a situation where one parent perhaps has no leisure time at all and that again is not conducive to good family relationships.
As to the children going to their mother on Wednesday after school. The father conceded that a meal with the mother during the week is a good way for the children to spend time with their mother and report to their mother on what is happening at school and keep her in touch.
I am certainly of a view that this is a regular arrangement which the children would come to rely on. It is a way of seeing their mother during the week and I am of the view that that arrangement should be considered.
I am not persuaded that the children should not spend Wednesday night staying at their mother's home. They can do their homework. The mother does not have to go to work on a Thursday usually. She is able to get the children up at the appropriate hour, 7 am. She can prepare lunches, she can get the two older children off to school. She should be able to do that. She has a motor vehicle available and there is no reason why the two older children should not spend Wednesday nights with their mother and go to school on the Thursday morning. I am satisfied that that area of criticism by the father of the mother's arrangements is one that does not call for any change.
The mother has the Thursday off and works at home. Telecommuting it is sometimes called. The father has expressed the view that the mother is not able to supervise a child who is less than three years of age, and work as well. With respect, the comment that would be made here, is the father has been out of the paid workforce for some ten years and is hardly in the position of an expert to judge the ability of the mother to work at home and supervise J. J is not at school at this stage. She will not be at school presumably until she is five and it would appear that it is beneficial for mother and younger daughter to spend some time together. There is no evidence which would persuade the Court that the mother is not able to spend a suitable period of time with the child during the day and that the child would either be ignored or the mother would not do her work. I am of a view that whilst J is not at school or pre-school, that there is benefit for the child in having some full time contact with the mother, especially contact where the other two children are not around. It is significant that she has spent less time with the mother because separation occurred in August 2001, and this seems to be a period when the mother could spend time with J and it would be beneficial to the child and I dare say to the mother. So I am not satisfied that I should vary that part of the arrangement.
I did indicate to counsel however that I had some doubts as to the benefit of the children again coming home from school on the Thursday morning, going off to school on the Friday morning, and on alternate Fridays at least, again coming home to their mother on the Friday afternoon. It was a relatively short period of time. Mr Bell of Counsel put to me that it was in fact a shared residence arrangement and provided a degree of normality. I am still not persuaded. Indeed I am of a view that the father's concerns about the mother having to go back to work on the Friday, especially after she has been away on the Thursday, and at times the need for her to get away early, may involve the children being delivered back to the father early on a Friday morning, causing some period of disruption before school time. It appears that the benefits to be gained by the children, especially the two older ones, in coming home from school on the Thursday afternoon and then going back to school on the Friday morning while the mother has to rush off to work, perhaps early, perhaps not, are not particularly great. If J has spent the day with her mother, she would have had a considerable amount of one-on-one time with her mother and there would not, in my view, be the particular need for the overnight contact. I am of the view therefore that on Thursday afternoons, the school aged children should go home to their father. He certainly has the time to organise them off to school on the Friday morning without difficulties. J, having spent the day with the mother, can be delivered to the father's residence.
One concern of course, expressed by the mother was the reduction in the amount of time that the children spent with their mother, from the present six nights a fortnight down to the two nights a fortnight that the father was proposing. Of course, if the children still spend each Wednesday night with their mother, then the reduction would not be so great, but it would still go down from six nights to four nights. I am of a view however, that there is a benefit to the children after school is over for the week, to go to their mother's home each Friday night and to be returned to their father on the Saturday of the off weekend. This would have the advantage of giving each parent some leisure time on a weekend. It would give the children a more regular routine and if they could come home from school on the Friday, those who are at school, and spend weekend time with their mother, so that the older children, the school aged children, again spend time with their mother on a regular and frequent basis. It still gives the mother a Sunday a fortnight which, in fact Saturday night and Sunday a fortnight which is leisure time, and it gives the father some weekend time with the children as well as time during the week.
I am of a view that these arrangements would be more conducive to the children's relationships with both parents. I am also of the view that the Orders should permit the maternal grandparents and the wife's sister, in other words, the children's aunt to be involved in collecting the children from time to time, and the father certainly was of the view that if the parents were not available to supervise the child, then the grandparents would be certainly a good substitute. I am not of a belief that if the mother is called away suddenly, that the children should go back to the father, if the maternal grandmother is available.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 3 July 2002
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