D-T and T
[2002] FMCAfam 383
•28 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D-T & T | [2002] FMCAfam383 |
| FAMILY LAW – CHILDREN – Contact – best interests of the child – family violence issues – contact changeover point – wife moves away from area – child aged under three years. PRACTICE AND PROCEDURE – Decision on separate question – desirability of resolving parenting issues at an early date. Family Law Act 1975, ss.60B, 65E, 65F, 68F |
| Applicant: | L-A D-T |
| Respondent: | I B T |
| File No: | NCM2747 of 2002 |
| Delivered on: | 28 November 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 27, 28 & 29 August 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Peter Marr and Associates |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | MBT Lawyers |
ORDERS
All previous parenting orders, including the orders made by the Family Court of Australia on 5 April 2001 and 16 August 2001 are discharged.
The child C B T born 21 December 1999 is to reside with the Applicant mother.
From the date of these Orders until and including the weekend of
21 and 22 December 2002, the Respondent father is to have contact with the said child as follows:(a)in the T H area each fortnight for two fortnights between the hours of 9.30 am Saturday and 4.00 pm Sunday; and
(b)in the C H area each third fortnight between the hours of 1.00 pm Saturday and 1.00 pm Sunday.
For the purposes of contact referred to in Order 2 above:-
(a)For contact in the T H area the Applicant mother is to deliver the child at the commencement of each contact period and collect the child at the conclusion of each contact period to the father or his nominee at Kentucky Fried Chicken shop situated at the corner of M Drive and S B Drive, T H S;
(b)For contact in the T H area, the father is to be responsible for travel to facilitate contact as provided in these Orders;
(c)For contact in the C H area the mother is to deliver the child at the commencement of each contact period and collect the child at the conclusion of each contact period to the father or his nominee at the McDonald’s Family Restaurant situated at C H; and
(d)For contact in the C H area, the mother is to be responsible for travel to facilitate contact as provided in these Orders.
For the 2002 Christmas period the father is to have contact with the said child:
(a)from 12 noon on Christmas Day until 4.00 pm on Boxing Day; and
(b)from 9.00 am on 28th December until 4.00 pm on 29th December 2002.
For the purposes of contact as set out in Order 5:
(a)the mother is to deliver the child at the commencement of each contact period and collect the child at the conclusion of each contact period to the father at the McDonald’s Family Restaurant situated at C H;
(b)the mother is to be responsible for travel to facilitate contact.
From and including the weekend 11th and 12th January 2003, the father is to have contact with the said child:
(a)Each third weekend from 6.00 pm on Friday to 3.00 pm on Sunday;
(b)In the event that any contact weekend falls on a long weekend including a Monday then the father’s contact shall be extended to 3.00 pm on the Monday;
(c)From 9.00 am on Christmas Eve 2003 to 12 noon on Christmas Day 2003;
(d)For the school holiday periods in 2003:
(i)for a period of three (3) days during the Autumn school holiday period, commencing at 1.00 pm on the Saturday after school term finishes and concluding at 1.00 pm on the following Tuesday;
(ii)for a period of four (4) days during the Winter school holiday period, commencing at 9.00 am on the middle Saturday and concluding at 4.00 pm on the Wednesday;
(iii)for a period of five (5) days during the Spring school holiday period commencing at 1.00 pm on the Saturday after school term finishes and concluding at 4.00 pm on the following Thursday; and
(iv)for a period of seven (7) days during the Christmas/January school holidays commencing at 9.00 am on Saturday 3 January 2004 and concluding at 4.00 pm the following Saturday;
provided always that during school holiday contact as set out in Orders 7(d)(ii) to (iv) inclusive weekend contact as set out in Orders 7(a) and (b) is suspended.
For the purpose of contact referred to in Order 7:
(a)For contact as provided by Order 7(c) the mother is to deliver the child at the commencement of each contact period and collect the child at the conclusion of each contact period to or from the father or his nominee as the case may be at the McDonald’s Family Restaurant at C H and the mother is to be responsible for the travel to facilitate that contact;
(b)For all other contact the mother is to deliver the child at the commencement of each contact period and collect the said child at the conclusion of each contact period to or from the father or his nominee as the case may be at the W 24 hour café, M Street, W.
After any school holiday contact weekend, contact will recommence on the second weekend after school recommences.
From and including the weekend 24 and 25 January 2004, the father is to have contact with the said child:
(a)Each third weekend from 6.00 pm on Friday to 3.00 pm on Sunday, Provided that if the Monday following that weekend is a public holiday, then contact will conclude at 3.00 pm on the Monday;
(b)From 12 noon on Christmas Day until 4.00 pm on Boxing Day;
(c)Half of each school holiday period, being the first half in all years ending with an odd number and the second half in all years ending with an even number.
For the purposes of school holiday contact referred to in Order 10:
(a)during school holiday contact weekend contact is suspended;
(b)after any school holiday contact period, weekend contact will recommence on the second weekend after the school term recommences;
(c)for contact as set out in Order 10 (c ), the mother is to deliver the child at the commencement of each contact period and collect the child at the conclusion of each contact period to or from the father or his nominee as the case may be at the McDonald’s Family Restaurant at C H, and the mother shall be responsible for the travel to facilitate contact.
Contact is not to be exercised by the father on a weekend that includes Mother’s Day.
The father is entitled to exercise contact on the weekend that includes Father’s Day in each year PROVIDED THAT where Father’s Day falls on a weekend when the father would not normally be entitled to exercise contact then the father shall substitute the Father’s Day weekend for the next contact weekend immediately following Father’s Day.
The father is to have telephone contact with the said child between the hours of 6.30 pm and 7.00 pm each Tuesday and Thursday and on the child’s birthday with the child to telephone the father and the mother is to do all such things as may be necessary to facilitate such contact.
The mother is to do all such things and sign all such documents and give all such authorities as shall be necessary to the Principal of any school attended by the child to permit the school to forward to the father at his expense copies of all school reports, notices, newsletters, bulletins and other documents as are usually forwarded to parents of children attending at the said school.
The mother is to advise the father within a reasonable time of any medical emergency suffered by the child or any hospital treatment or any medical specialist’s appointment necessary for the said child.
During any period of contact for three (3) days or more the father is to permit the child to telephone the mother on one day between the hours of 6.30 and 7.00 pm and do all such things as may be necessary to facilitate such contact.
The application by the father for an order that the mother not relocate any further away from C H than the distance between C H and B P is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE (Sitting at C H) |
NCM 2747 of 2002
| L-A D-T |
Applicant
And
| I B T |
Respondent
REASONS FOR JUDGMENT
This is an application by the wife for orders relating to the husband’s contact with the parties’ son, C B T, who was born on 21st December 1999. There is no issue between the parties that the child should reside with the mother, but contact remains a difficult issue.
The wife seeks that overnight contact should be graduated, with the first two overnight contact periods taking place in the T H/C/P area, and that these initial periods should conclude at 1.00 pm on the Sunday of the contact weekend. The wife seeks that the husband should undertake the necessary travel. Contact after that would take place in the C H area.
The wife seeks that extended contact should commence once the child attains school age, and that the husband should give two months’ notice of his intention to exercise that contact.
The husband seeks orders that he should have contact each fortnight until the weekend immediately prior to Christmas for two weekends in the T H area, until 4.00 pm on the Sunday, then each third fortnight in the C H area until 1.00 pm on the Sunday.
The husband then seeks orders for contact over the Christmas/New Year period. He goes on to seek orders for contact from the weekend 11th to 13th January 2003 until January 2004 as follows:
a)each third weekend from 6.00 pm Friday until 3.00 pm Sunday (extending to Monday on a long weekend);
b)Christmas Eve to midday on Christmas Day;
c)Block contact during school holidays in 2003, commencing with 3 days, then working up through 5 days to 7 days in the third term school holidays.
From January 2004 onwards, the husband seeks contact as follows:
a)each third weekend, as before;
b)midday Christmas Day through to Boxing Day;
c)half of school holidays; and
d)telephone contact.
The contact changeover points are also in contention. The following venues are nominated:
a)the Kentucky Fried Chicken shop in T H;
b)McDonald’s Family Restaurant at C H;
c)The W 24 hour café (by the husband).
The husband also seeks an order restraining the wife from relocating any further away from C H than the distance between C H and B P.
Background
The parties were married on 3rd April 1999. The child C was born on 21st December of that year. The parties separated on 30th July 2000, when the husband left the matrimonial home. The wife remained living in the home at C H with the child until she moved to the T H area in April 2001, having obtained a transfer in her employment as a teacher to a school at B P. The wife is now residing at B.
The relationship between the parties was a stormy one. They had originally known each other in their school days, but did not commence seeing each other socially until late 1997 or early 1998. The parties commenced to live together in February 1999 and were married the following April.
The husband deposes to arguments between the parties before the wedding and on the honeymoon. The wife says that in August 1999 she asked the husband to leave, but they were later reconciled. The wife accuses the husband of violence to her in November 1999, when she was seven months pregnant. She also accuses the husband of violence to her in March 2000, just prior to the child’s christening. The husband says in his affidavit that the wife attempted to ban him from the christening.
The parties separated on 30th July 2000, when the husband left the matrimonial home. Contact commenced, but on a shaky basis, marked by arguments between the parties. The husband deposes to arguments started by the wife when he had contact with the child on Father’s Day 2000. The wife deposes to an incident between them on 7th September 2000, and then an assault by the husband on 13th December 2000. The assault consisted of the husband forcing his way into the wife’s house and spitting in her face.
The wife reported the incident to the police. The Local Court made an Interim Apprehended Violence Order on 19th December 2000. The husband was charged with assault. He pleaded guilty and was placed on a Good Behaviour Bond in May 2001. The Interim Apprehended Violence Order was made on a final basis, by consent, for a period of 6 months.
During the period from January to March 2001 there was no contact between the husband and the child. Contact resumed on 19th March 2001. The wife sought a transfer on compassionate grounds from her employer, the NSW Department of Education and Training. The transfer was approved.
The wife commenced proceedings in the Family Court of Australia. The matter came before Registrar Gersbach of that Court on 5th April 2001. The Family Court made the following interim orders:
(1)“That the child C B T born 21 December 1999 live with the applicant mother L A D-T.
(2)That the child have contact with the respondent father each 3rd (third) weekend in C H between the hours of 1.00 pm and 5.00 pm on Saturday, and 9.00 am and 1.00 pm on Sunday.
(3)That the mother shall deliver the child at the commencement of each contact period and collect the child at the cessation of each contact period to the father or his nominee at the North C H McDonalds outlet situated at the corner of P B Road and the P H C H.
(4)That the mother shall be responsible for the travel to facilitate contact as provided for in these orders.
(5)That the first contact period shall commence on Saturday 12 May 2001.
(6)That the consent contact arrangements shall remain in place on an unsupervised basis until the mother relocates on 23 April 2001.
(7)That the mother shall provide the father with an address where she is living in T H and a contact telephone number.
(8)That the father shall provide the mother with an address and contact telephone number.”
The mother says that the child suffers from health problems and suffers from carsickness. The mother consulted a general medical practitioner and was referred to a consultant paediatrician, Dr D M.
The mother made a further application to the Family Court about the contact arrangements. On 16th August 2001, the Family Court made the following further interim orders:
(1)That the child have contact with the father in the T H area each fortnight for two fortnights between the hours of 9.30 am to 4.00 pm Saturday and Sunday, and in the C H area each third fortnight between the hours of 1.00 pm to 5.00 pm on Saturday and 9.00 am to 1.00 pm on Sunday.
(2)That for contact in the T H area the mother deliver the child at the commencement of each contact period and collect the child at the conclusion of each contact period to the father or his nominee at the McDonalds outlet situated at the corner of W and B Streets T Shopping Mall T H.
(3)That for the purposes of contact in the T H area the father be responsible for travel to facilitate contact as provided for in these orders.
(4)That for the purposes of contact in the C H area the mother be responsible for the travel to facilitate contact as provided for in these orders.
(5)That the first contact period commence on Saturday 25 August 2001.
(6)That the father provide the mother with an address and contact telephone number in T H when he collects the child for contact on the said weekends.
(7)That the mother provide to the father at the time of contact all items necessary for contact excluding consumables but including medication necessary to cover the period of contact.
(8)That the father provide a portable cot for the child to sleep in when contact takes place at T H.
(9)That the said child be more particularly described as C B T born 21 December 1999.”
There has been continuing correspondence between the parties’ solicitors about the contact arrangements ever since. For a period of some months the husband carried a tape recorder with him at contact changeover, giving the reason that the mother accused him of threatening her at those times.
Issues
The legal advisers for each party have provided the Court with extensive written submissions about the matters in dispute. The submissions relating to the contact dispute cover some 12 pages of the Applicant’s written submission and 15 pages of the Respondent’s written submission. Due to the approach of the Christmas season I have taken the decision to issue this separate decision about the parenting issues, as I consider it to be desirable to settle those matters as soon as practicable whilst the Court is sitting at C H without waiting to complete the analysis of the property issues that will be required to finalise that question between the parties. The Federal Magistrates Court Rules 2001 make provision in Part 17 for this procedure to be followed.
The parenting issues between the parties have been admirably summed up by the wife’s solicitor, Mr Marr, in his written submission, and I agree with his summary. The issues, therefore, are:
a)Whether or not there should be an introduction period to overnight contact;
b)At what interval or frequency should weekend contact occur?
c)What travel arrangements should be put in place in the interests of the child?
d)How should travel be shared between the parties?
e)When should extended holiday contact commence and what conditions, if any, should apply to extended holiday contact?
f)What are the appropriate changeover points?
There is no issue that overnight contact should commence. Both parties are of the view that there should be some graduated program, to give the child an introduction to overnight contact.
The Applicant’s submissions
The Applicant submits that there should be an introductory period of overnight contact, commencing at 9.30 am on the Saturday and concluding at 1.00 pm on the Sunday, for two separate weekends. The wife’s reasoning is that the child has never been separated from her before, and that there will be some anxiety on his part.
The Applicant then proposes a six-week cycle, when contact will take place on a fortnightly basis, twice in T H and once in C H. The C H weekend would be a weekend of reduced hours, from 1.00 pm Saturday to 1.00 pm Sunday, to allow the Applicant time to travel.
The Applicant submits that the child suffers from carsickness, and that she needs to stop the vehicle to allow the child time for a break. She says that the trip from T H to C H takes four hours. She relies on the evidence of Dr B, who gave evidence by telephone.
The Applicant also submits that extended holiday contact does not commence until the child is of school age. She asks for notice of the Respondent’s intention to exercise this contact, which would be for half of the school holidays.
The Applicant opposes the Respondent’s proposal that travel be shared with the meeting point to be at the roadhouse on the P H. She says that it is a lonely stretch of road which could leave one or other party stranded “without any means of communication to the other party”. The Applicant also opposes a changeover that takes place on a Friday evening, saying that it is too tiring for the child.
The mother’s proposal is that each party does the whole of the driving, with the McDonald’s at C H and the Kentucky Fried Chicken at T H being the changeover points.
The Respondent’s submissions
The Respondent submits that the travelling distance is the main issue, having regard to the child’s age. This problem arose because the Applicant made the decision to leave C H and move to T H. The present arrangement is that the Respondent travels to T H each fortnight for two fortnights and the Applicant travels to C H on one occasion.
The Respondent is most critical of the Applicant’s approach, described by his counsel, Mr Smith, as “proprietorial, petty and parsimonious”. The Applicant is accused of using the child’s illness as an excuse to avoid making the child available for contact and to control that contact to suit her own ends. The Respondent is sceptical about the extent of the child’s alleged carsickness. He refers to the lengthy correspondence between the parties’ solicitors to illustrate what he considers to be the Applicant’s restrictive attitude to contact.
The Respondent says that the proposed introductory contact at T H “effectively reduces the awake time that the respondent has with the child”. The Respondent points out that he travels to T H two full weekends out of every six only for the purposes of contact.
Counsel for the Respondent criticises the Applicant for her “uncommunicative attitude in the witness box” and her apparent inability to “candidly or unreservedly answer almost any question”. Counsel was also critical of the evidence of Dr B, describing her evidence as “particularly strident and…unusually partisan in its content and delivery”. In summary, the Respondent submits that the child’s health status has been used “as a vehicle to restrict contact”.
The Respondent suggests a lead-in time over a year for extended school holiday contact, being the year between the child’s third and fourth birthdays. He then believes that block school holiday contact would be appropriate, and does not think it necessary to wait until the child commences school. He points out that the child is currently in day care 5 days per week, so that he would most likely be in pre-school when he attains the age of 4 years.
The Respondent does not agree with the Applicant’s characterisation of the proposed changeover point as a lonely and isolated stretch of road. He also submits that it would be about an hour and a half driving time from B, which should not expose the child to much risk of carsickness.
The Respondent submits that the Applicant has moved away from her mother and one sister as well as other family who reside in C H. He considers that she could move back to C H, and that she has been completely unreasonable regarding contact.
Principles to be applied in contact proceedings
A court exercising jurisdiction under the Family Law Act 1975 must bear certain matters in mind when dealing with residence and contact applications. Section 60B of the Act states that the object of Part VII of the Act is “to ensure that 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.”
Section 65E of the Family Law Act makes it clear that the Court must regard the best interests of the child as the paramount consideration when deciding whether to make a particular parenting order. A consideration of the factors in s.68F(2) will help the Court to arrive at this decision.
Section 68F(2) provides for a number of matters for the Court to consider in order to ascertain what is in a child’s best interests. Not all of them will be relevant in every case, of course, but the Court must give consideration to them.
Section 68F(2)(a) – any wishes expressed by the child
The child was born on 21st December 1999, so he is only 2 years and 10 months old. He is not of sufficient age or maturity for the Court to ascertain his wishes.
Section .68F(2)(b) – the nature of the relationship with each of the child’s parents
The child has lived with his mother all of his life, being a child of tender years. She has always been his primary carer. The father has had some contact and wants to pursue this relationship. He pointed out in cross-examination that it is the child who has rights. The child, it is submitted by Mr Marr, for the mother, is building his relationship with his father.
Section 68F(2)(c) – The likely effect of any changes in the child’s circumstances
It is submitted for the wife that the child has settled into a program and routine of contact that is comfortable for him. Both parties propose a change of circumstances in that he will be commencing overnight contact with the father. I am of the view that if this change to arrangements is approached sensibly then the child will be able to adapt to it without too much difficulty. He will reach the age of three on 21st December, and most three year olds are capable of spending some time away from one parent in the care of the other.
Section 68F(2)(d) – The practical difficulty and expense of a child having contact with a parent
The practical difficulty that arises here is that the parents live about four hours’ drive away from each other, as the wife has elected to move from C H to the T H area. The parents will need to share the travelling, but I am not persuaded that the distance is too great for the child to travel on a regular basis.
Section 68F(2)(e) – The capacity of each parent to provide for the needs of the child
The wife is the child’s primary carer. There has been a tumultuous history between the parties, but I am not convinced that the husband is incapable of considering the child’s needs. He did complete a parenting course, and he has been travelling regularly to T H and staying there over a weekend so that he can have contact with his son. Whilst it is clear that the husband can be impatient with the wife’s attitudes, I do not agree with the submission that he is more interested in his rights than the rights and interests of the child.
Section 68F(2)(f) – The child’s maturity, sex and background
The child is a little boy aged two years and ten months. He is of an age where it is important that he forms a positive relationship with his father.
Section 68F(2)(g) – The need to protect the child from physical or psychological harm
There is a history of argument during the marriage, and the husband and wife are still hostile to each other. Each party must strive to ensure that there are no bitter exchanges in the child’s presence. I am satisfied that each parent can be provoked to hostility. It will cause the child psychological harm to see his parents arguing, especially if he is being accustomed to a regime which involved overnight contact with his father.
Section 68F(2)(h) – The attitude to the child and to the responsibilities of parenthood
The wife is perhaps over-protective of the child. He is nearly three years of age, and should be old enough to spend a night away from home with his father. Children usually get over carsickness as they grow older.
Section 68F(2)(I) – family violence and section 68F(2)(j) – Family Violence Orders
There has been some history of an incident of domestic violence which has led to Apprehended Violence Proceedings. The husband was found guilty of an assault on the wife and placed on a good behaviour bond. Contact orders will need to take into account that the husband and wife should have little contact between each other, and the husband needs to be aware that the Court takes a critical view of family violence. Any violence involving the child or in his presence or hearing would lead to suspension of contact. From the husband’s evidence, I am satisfied that he feels ashamed of his actions on that occasion, and I consider the likelihood of a repetition of that incident as low.
There are no other relevant factors. It is unlikely, considering the history of litigation between the parties, that there will be no more court proceedings, but it is in each parent’s interest to attempt to make contact work. The child will be happier if he has a regular routine that involves him spending a reasonable amount of time with each parent.
Conclusions about contact
I am satisfied that it is in the interests of this child for him to have a regular relationship with his father, which should include overnight contact. Whilst there is something to be said for an introduction to overnight contact, I am of the view that the wife’s suggested program is overcautious. That said, the husband’s proposal includes and extension of contact on a weekend to include a long weekend. There are not, to my knowledge, any public holidays between now and 22nd December, so I have not included this proposed order for the initial periods of contact. Whilst the wife proposes to bring forward the time of return of the child from 4.00 pm to 1.00 pm for the first two contact periods, I am not satisfied that this earlier time will make any real difference. The child is used to returning to his mother in T H at 4.00 pm on the Sunday of each weekend.
The wife says in her affidavit sworn 18th June 2002 that she wishes the contact changeover point to be at the residences of the parties, but she also says that “The husband and I are just not able to communicate” (paragraph 57). In her written submissions, however, the wife nominates the Kentucky Fried Chicken shop in T H and the McDonald’s Restaurant at C H, and the husband nominates those same places.
The husband, in his written submissions, proposes that he should have contact with the child from Midday on Christmas Day until 4.00 pm on Boxing Day, and then from 9.00 am on 27th December until 4.00 pm on the 29th. The difficulty I see is that this arrangement would mean that the child is returned to his mother at 4.00 pm on 26th December and then be collected again by his father at 9.00 am the following morning. This arrangement appears to be disruptive to the child and not in his best interests, as he would spend just the one night with his mother before going back to his father for two nights. I believe that the child might be confused by this arrangement, as he would only spend 17 hours in his mother’s care.
I am satisfied that, provided the child has commenced overnight contact with the father in November, he should be able to deal with having two nights of contact from the middle of January onwards. He will be three years old. The mother will not be at school in January, so the initial travel should not encroach onto the mother’s working hours.
There should be a sharing of Christmas contact, with the changeover time being on Christmas Day. The mother has family members in C H, including her own mother.
There does not appear to me any good reason why extended holiday contact should wait until the child commences school, provided that overnight contact with his father continues on a regular basis. I am of the view that the husband’s proposal to phase extended contact over a period of a year is relatively conservative and should allow the child to adapt to spending longer periods of time with his father. Despite this, I consider that the number of days the child spends with the father should build up at a slightly slower rate than the father is suggesting, and I believe that an extra day at time would not disrupt the child’s life to any degree.
I do not, however, consider that the husband’s submission that the wife should move back to C H should be followed. It is not surprising that the wife should wish to move to another town after the collapse of an unhappy marriage. If she were to remain in C H, she would run the risk of meeting the husband unexpectedly, and, considering the degree of animosity between them, she would find this possibility most disconcerting. As long as there can be regular contact between C and his father, the wife should be able to move to another town and start a new life there. There is no suggestion that she is planning to move to the other side of the continent, for example, so I am not satisfied that I should make the order the husband seeks. The wife is a teacher, and there may be a promotion in another town which she would like to take. The wife should be in a position to follow her career. As she is employed by the NSW D of E and T, the wife is likely to remain living in New South Wales even if she does move to another town in the course of her employment.
It is for these reasons that I make the orders in the attached schedule.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date:
0
0
0