F and F
[2001] FMCAfam 223
•9 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F | [2001] FMCAfam 223 |
| FAMILY LAW – CHILDREN – Residence – If unsuccessful father says will not see child again – Order for contact made in father's favour on mother's application – s68F(2) Family Law Act 1975. |
| Applicant: | M F |
| Respondent: | A F |
| File No: | ZP1327 of 2001 |
| Delivered on: | 9 November 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 16 & 17 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms M De Vere |
| Applicant in person: | Mr M F |
| Counsel for the Respondent: | Ms Messner |
| Solicitors for the Respondent: | (Ms K Rutkowska) Legal Aid Commission of NSW |
ORDERS
That all previous orders are discharged.
That the child of the marriage, namely S A F M born 18 June 1998 live with wife.
That the wife have sole responsibility for the day to day care, welfare and development of the child when he is in her care.
Provided the husband gives the wife fourteen (14) days notice of his intention to do so that the child have contact with the husband as follows:
(a)Each alternate weekend from Friday 5.00 pm to Sunday 5.00 pm;
(b)Until such time as the child attends school, each Tuesday from 5.00 pm to the commencement of pre-school the next day;
(c)From the time that the child starts school for the second half of all school holidays.
That the husband shall not have the child on the weekend that includes Mother’s Day, but in substitution the husband will have the child on the following weekend at the same time as weekend contact is ordinarily exercised.
That the husband shall have contact on the weekend which includes Father’s Day and if this is a weekend when the child would otherwise be with the wife, the wife shall have the child with her on the following weekend.
SCHOOL HOLIDAY CONTACT:
(1)SHALL commence at 9.00AM;
(2)SHALL conclude at 2.00PM;
(3)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes;
(4)Pupil free days are deemed to be school holidays.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the Father has exercised contact during the first half of the holidays AND on the second weekend if the Father has exercised contact during the second half of the holidays.
That the husband shall exercise overnight contact at his parents’ home.
That for the purposes of contact hand over, the husband shall ensure that his father collects the child at the commencement of contact from the wife's home and returns the child to her home at the conclusion of contact.
That the husband is restrained from denigrating the wife or members of her family to the child or in his presence and he shall ensure that no other person does so to or in the presence of the child.
That in the event the husband fails to exercise contact to the child for a consecutive period of one year all orders for contact in his favour are discharged.
That until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the P.A.S.S. system, at all points of arrival and departure in the Commonwealth of Australia.
That the Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
That the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child S A F M born 18 June 1998 from the Commonwealth of Australia. It is requested that the Marshal of the Court and all agents of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
THAT pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all outstanding applications are otherwise dismissed.
That all exhibits are to be returned at the expiration of one calendar month unless an appeal is lodged.
That the person who caused any subpoena to issue uplift any documents produced under subpoena and return them to their owner within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP1327 of 2001
| M F |
Applicant
And
| A F |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings relate to parenting orders, residence, contact and specific issues orders and injunctions concerning the parties’ only child, S A F M born 18 June 1998 (“the child”).
The applications
M F (“the husband”) filed an application in the Federal Magistrates Court on 12 April 2001. The final orders sought by him were:
(1)“To be able to see and talk to my son”.
He sought an interim order in identical terms.
On 13 June 2001 he filed an amended application, which application in essence proposed:
(1)That the child live with him.
(2)That he have sole responsibility for the day to day care, welfare and development of the child.
(3)That the parties have joint responsibility and reside together in the development of the child.
During the course of the proceedings, he sought orders that were to the effect:
(1)The child live with him.
(2)That the mother have daily contact if sought by her, which contact is to be exercised at the husbands home.
(3)In the event that the mother was granted residence of the child, he proposed that there be no orders as to contact because he would not exercise contact to the child.
A F (“the wife”) filed an application for final orders at Liverpool Local Court on 3 May 2001. In essence she proposed that the child live with her and that she be responsible for his day to day care. She sought urgent ex parte relief in the nature of an interim residence order, an order granting her day to day responsibility for the child, a recovery order and an order restraining the husband from removing the child from the Sydney metropolitan area.
On 21 May 2001, the Liverpool Local Court proceedings were transferred to the Family Court at Parramatta and then transferred to the Federal Magistrates Court.
Thus the wife became the respondent in these proceedings. Exhibit “A” contains the orders sought by her at the commencement of the hearing. It was only during the hearing that the father disclosed that if he were unsuccessful in his application for residence that he would not exercise any further contact to the child. At the conclusion of the hearing, the mother tendered a Minute of Order, which provided, inter alia, that the husband have contact with the child. The orders sought by her are as follows:
(1)That all previous Interim Orders be discharged and by way of Final Order:
(2)That the child of the marriage, namely S A F M born 18th June 1998 reside with the Wife.
(3)That the wife have sole responsibility for the day to day care welfare and development of the said child.
(4)That the husband be restrained from taking the said child outside the Sydney Metropolitan area.
(5)That the Australian Federal Police place a “watch” on all points of overseas departure to prevent the child from being taken outside the Commonwealth of Australia.
Short history
The husband was born on 24 February 1969 and is aged 32 years. He was born in Fiji. The wife was born on 21 July 1976 and is aged 25 years. She also was born in Fiji. The parties share an Indian heritage.
On 18 June 1994 they married in Suva, Fiji.
S A F M was born on 18 June 1998 and is now aged three years.
The parties separated on 10 April 2001 when the wife left the matrimonial home with the child. The parties have not divorced.
Current orders
On 23 April 2001 the husband was convicted of assault occasioning actual bodily harm. The victim was the wife. Pursuant to s 10(1) Crimes (Sentencing Procedure) Act 1999, no conviction was recorded against the husband and he was discharged upon entering a bond.[1] The bond is current for 18 months and its conditions are that the husband:
[1] Exhibit “B”
(1)To be of good behaviour;
(2)To appear before the court if called upon to do so at any time during the term of the bond;
(3)To inform the court of any change in his address;
(4)Not to assault, molest, harass, threaten or intimidate A F.
On 3 May 2001, ex parte orders were made at Liverpool Local Court. In addition to a recovery order, the orders provided, pending further order:
(1)That the child reside with the wife.
(2)That the wife have sole responsibility for his day to day care, welfare and development.
(3)That the husband be restrained from taking the child out of the Sydney metropolitan area.
(4)That the child be placed on the Australian Federal Police watch list to prevent removal from the Commonwealth of Australia.
On 15 June 2001, after a defended interim hearing, orders were made as follows:
(1)That the Applicant Wife's address be placed in a sealed envelope with the Court papers AND that the envelope is not to be opened unless pursuant to an order of a Federal Magistrate or a Judge of the Family Court of Australia.
(2)That the Father’s Interim application to discharge the Orders made at the Local Court at Liverpool on 3 May 2001 is dismissed.
(3)That Orders 1, 2, 4 and 5 of the Orders made at Liverpool Local Court on 3 May 2001 continue in force and effect.
(4)That the Father have contact with the child each Wednesday and Saturday between 10.00am and 6.00pm.
(5)That contact changeover shall take place at Bankstown Mall.
(6)Otherwise all interim applications are dismissed.
(7)That the matter be listed for final hearing 10.00am on 16 and 17 October 2001 as a two day matter.
(8)That the Father is to effect service of any document filed in these proceedings on the Wife through her solicitor only.
(9)IT IS ORDERED BY CONSENT that the Father is restrained from approaching the Wife or from coming within one hundred (100) metres of her other than for the purpose of contact change-over.
(10)I DIRECT that the Applicant Wife pay the hearing fee or obtain a waiver by 10 September 2001.
(11)I DIRECT that both parties file and serve all affidavits upon which they rely by 28 September 2001.
The evidence
The husband relied on the following evidence at the hearing:
·His affidavit sworn and filed 15 October 2001 and his oral testimony.
·Affidavit of M A sworn and filed 15 October 2001 and his oral testimony.
·Affidavit of S C sworn 10 October 2001 and filed 15 October 2001 and her oral testimony. Ms C gave her evidence by telephone from Fiji.
·Affidavit of M R sworn 12 October 2001 and filed 15 October 2001 and his oral testimony.
·Affidavit of M F sworn and filed 15 October 2001 and his oral testimony.
The wife relied on her affidavit sworn 7 September 2001 and filed 10 September 2001 and her oral testimony. Documents were tendered in the wife’s case which became exhibits in the proceedings.
The husband’s proposal and current circumstances
The husband continues to live in the former matrimonial home at Hinchinbrook. His parents, M and V A, and his sister F A live with him. Until separation, the child had lived all of his life in the former matrimonial home. The husband has civil engineering qualifications. In December 1996 he was injured in an industrial accident. He underwent surgery in April 2000. He has not worked since August 1999. Recently he compromised a compensation claim for which he received $100,000.
The husband proposes that the child live with him in the former matrimonial home. The home comprises a large, five-bedroom, double-storey house in a large compound. The house is well equipped and there are swings, trampoline and a seesaw in the yard. The husband proposes that he will care for the child, which care will be complemented by the assistance of his parents. The husband is a member of a large, loving family. His parents are happily married. He has two younger brothers, one of whom lives in Fiji, and a sister who is in high school. It was evident in the proceedings that his family support him and his claim for residence of the child. The husband is a devout Muslim and prays at the mosque at Green Valley daily. His Indian heritage is enormously important to him and he proposes that the child be reared in accordance with the rights of Islam and Indian culture.
If the husband is successful, he proposes that the wife exercise contact at his home. Should she desire it, he is willing to leave the house whilst the wife is seeing the child. He does not ask the court to make an order that would entitle the wife to remove the child from the home for the purposes of contact. He conceded that were the court to order it, he would comply. Provided the contact was exercised at his home, the wife was welcome to exercise contact all day, every day.
Should his application for residence of the child be unsuccessful he will not exercise contact to the child again. Because the notion of separation is alien to his beliefs he will withdraw entirely from the child's life.
The wife’s proposal and current circumstances
The wife lives in rented accommodation at Roselands. Because of the separation she has discontinued her university studies, hoping to resume them at the start of the 2002 academic year. She supports herself and the child from Centrelink payments. She has neither sought nor received any monies by way of child support from the husband since separation. She has enrolled the child in child care and he attends the local pre-school between 10.00 am and 4.00 pm twice weekly. Her father and sister live reasonably close to her.
The wife's parents separated when she was 12 years old. Her mother lives in the USA. In spite of her husband’s desperate desire to reconcile with her, the wife is adamant that their marriage is at an end. She is most distressed at the husband’s apparent decision to withdraw from the child’s life unless the child lives with him. Nonetheless, she proposes that the court make contact orders which will provide a structure for the husband’s contact. She hopes he will change his mind qua contact once the proceedings are completed.
Once she returns to university, the wife hopes to structure her attendance at university in a way that reasonably coincides with the child’s attendance at pre-school. If she is unable to deliver or collect the child from pre-school, she has arranged that her father or sister will do so for her. She does not anticipate that she will need to call on their assistance frequently. The wife is Christian and shares the husband’s approach to the importance of Indian culture for their son. She respects the husband’s religion and is agreeable that during periods of contact, the child can attend the mosque with his father. She is deeply respectful towards the husband’s parents. In the event that the husband decides to cease contact with the child, the wife agrees that his parents should exercise contact.
Relevant facts
The wife was 16 years old when she married the husband. He was 24 years old. In January 1995 they migrated to Australia and have lived in Sydney since that time.
Initially, the parties lived in rented accommodation until they moved into their own home on 21 July 1996. This is the property that the husband continues to live in. He and the wife are the joint owners of the property. Since November 1996, the husband’s parents and his sister have lived continuously with the parties. They still live in the home. The husband’s youngest brother lived with the parties between August 1995 and August 1996 and from September 1997 until November 1999. His wife lived with the parties following their marriage in December 1998 until November 1999.
The husband’s youngest brother, M F, lived with the parties between December 1995 and December 1996 and during summer breaks over the 1997/1998, 1998/1999 and 1999/2000 Christmas holidays. On each occasion he stayed for about three months and on the last two of these occasions, his wife and children joined the parties.
On 12 December 1996, the husband was involved in a motor vehicle accident during working hours. He received worker’s compensation for about 6 or 7 weeks. The husband returned to part-time work as an electrician/technician in May 1998 and continued part-time work until September 1998. Between September 1998 and August 1999 he worked full-time. He has not worked since.
After the child’s birth in June 1998, the mother remained at home to care for the child. To the extent necessary, she was assisted by the husband’s mother and to a lesser extent, the husband and his father. The husband returned to work the weekend after the child was born. The child was breast-fed. The child was 14 months old when the husband stopped work.
In February 1999 the wife enrolled in a Diploma in Accountancy at Liverpool TAFE College. The classes consumed 20 hours per week, between 9.00 am and 5.00 pm, three days a week. Some days were only 9.00 am until 12 noon. Academically, the first year was not challenging and the wife completed the course without needing to devote significant time to study. The course gave her a mid-semester break of 1 to 2 weeks, half-semester break of 6 to 8 weeks and an annual holiday of three months. The second year of the course was more demanding. The wife needed to study and she spent two nights each week doing so at home.
When she was at home, the wife was primarily responsible for the care of the child. When she was at TAFE, the child was cared for primarily by his paternal grandmother, assisted to some extent by her husband and the husband when he was not working. It was the husband's habit to take the child to the park each afternoon whilst the husband did exercises. When he did so, the wife remained at home assisting the paternal grandmother with household tasks. If the child was unduly unsettled at bedtime, the husband took the child for a drive, as this helped the child to fall asleep.
The wife had little contact with her family whilst she lived with the husband. He was and still is deeply critical of her parents and considers that the breakdown of their marriage contributed to the failure of his own. He regards them as poor role models. The wife did not call upon her own father or sister to assist in the care of the child whilst she was studying. She readily conceded that there was no need to do so, as the care provided to the child by the husband’s parents in particular, was lovingly and competently given. That the wife took care of the child when she was not studying was corroborated by the husband’s father.
The parties separated on 10 April 2001. The catalyst for separation was an assault by the husband of the wife. I accept the wife’s evidence as to the circumstances of the assault in preference to the husbands. They argued about money. During the argument the husband threw a plastic outdoor table in the wife’s direction. He stood over the wife and hit her on the back of her head four times. The husband’s mother intervened and the wife fled inside. She telephoned the police. The husband came into the house, with both his parents trying to restrain him. He threatened to kill the wife. During the assault an earing was torn out of the wife’s ear and it bled. She had lumps on the back of her head as well as a big scratch. After she telephoned family members her sister collected her and took her to the police station. The wife and child remained with her sister until 23 April 2001.
On 23 April 2001, the parties attended Liverpool Local Court on the first hearing day of the charges against the husband. An interim apprehended violence order for the wife's protection was also made that day. The wife accepted her husband’s expression of remorse and asked the court to deal with him leniently. He entered a plea of guilty and was placed on a bond.
The wife had exams later that day. The paternal grandfather had attended court and asked the wife if the husband and his family could spend some time with the child. The wife had anticipated that the request would be made and readily agreed. She arranged to collect the child from the former matrimonial home between 5.00 and 6.00pm that evening. After her exams were finished she rang the grandfather to confirm that she was on her way. He agreed. When she got to the home the house was in darkness although there were cars in the driveway. She telephoned the husband. He advised her that he was at the park with the child and that she should wait for him at the house. The wife did not want to wait at the house and asked that the husband return the child to her at a mutual friend, L’s home.
When the husband arrived at L's he was alone. The wife rang the paternal grandfather inquiring of the whereabouts of the child. With her sister, she then returned to the former matrimonial home. The husband drove behind them. No one answered the door at the former matrimonial home when she knocked on the door. The wife then went to the police station seeking their assistance. They were unable to help her recover the child. The wife went back to the former matrimonial home. She spoke to the paternal grandfather who told her that the husband had taken the child. At about 11.00pm the wife received a telephone call from K, a friend of the husbands. She went to K’s place and when she arrived both the husband and the child were present. Because he objected to the living arrangements at the wife’s sister’s place, the husband insisted that the wife remain at K’s home that evening. She agreed. The following day, the husband took the child and wife back to L’s home. At the husband's insistence the wife and child remained there between 24 April 2001 until 3 May 2001. The husband came in every second day and took the child for the whole day, returning him to the wife between 5.00pm and 6.00pm.
On 2 May 2001 the husband took the child for the day. At about 6.00pm the husband telephoned the wife and told her the child did not want to return to her. The next morning the husband came to L’s home, alone. He told the wife to pack her things and that he was taking her to another place. She refused. Finally, her sister collected her and took her to Liverpool Local Court. She took the first available appointment to see the Chamber Magistrate. After she returned to her sister’s home, the wife received a telephone call from a friend in Fiji. Because the child had not been returned to her as well as information passed to her by her friend in Fiji, the wife sought and obtained ex parte orders that same day.
The child was returned on 4 May 2001. In spite of the order, the husband required that the wife live with another friend and only if she agreed would he return the child. In order to secure the return of the child she agreed. After they left his solicitor’s premises, the husband pressed the wife to go for a drive. Whilst she impressed on him the need for the child to go home, he persisted and ultimately she agreed. The parties were driving beyond Sydney on the road to Goulburn. The wife became frightened and asked the husband to take her and the child back to Sydney. When he had failed to take three exits she panicked and threatened to call the police. The husband was agitated during the drive, banging the steering wheel and shouting at the wife. At the next exit, the husband drove into a roundabout and as the car slowed down the wife jumped from the car. She was frightened. Fortuitously a police car entered the roundabout. It was only with their intervention that the child was finally given to the wife. The wife’s sister collected the wife and child and took them to her home. The wife and child stayed with her sister until 25 May 2001. Since that time the wife has lived in her own rented unit.
On 27 May 2001, accompanied by police, the wife attended the former matrimonial home to retrieve her belongings.
Between 29 May 2001 and 11 June 2001 the husband was in Fiji. He took this trip to help find some peace from the internal struggle he was enduring after separation.
On 22 July 2001 the wife's grandmother died. They had been very close. Kindly, the paternal grandfather offered to care for the child during the days following the grandmothers death. During the mourning period, the fathers parents and child came daily to the wife's home. The child remained with the paternal grandparents for about 10 days.
On 23 July 2001 the husband travelled to Auckland, returning a few days later on 27 July 2001. He had hoped that his wife would accompany him. Nevertheless when she declined he went. He wanted some time alone to reflect upon the failure of his marriage.
After separation the wife provided her address and telephone number to the paternal relatives. They were invited to visit the child whenever they wished. Because the paternal grandfather had not kept his word and returned the child to her on 23 April 2001, the wife was anxious to ensure that she had some control over the exercise of contact. Thus she required that the contact be exercised is accordance with the interim orders and any additional contact take place at her home. On the 16th August 2001, the paternal grandfather requested but was refused contact by the wife. He has not sought contact since then. This was partly because the wife had refused him on this occasion. Of greater significance was his sons advice that the wife would not co-operate with any future contact. This was quite untrue.
The last occasion the husband attended contact was 17 August 2001. Because the child was upset when returned to the wife at the end of contact the husband decided that it was in the child's interest that contact stop altogether. This way the child would not have to deal with feeling torn between his two parents. The husband rejects the notion of marital separation. Thus he has taken no steps to help the child adapt to the reality of his parents separation. Responsibility for this is entirely the wife's because the decision to separate is hers. The husband did not tell the wife that he would not exercise contact any more. In compliance with the orders she continued to take the child to Bankstown, the designated contact changeover point. Other than a couple of occasions when the wife refused to alter the arrangements to suit the husband, this continued for a few weeks until the husband advised her that he was leaving Australia. I accept her evidence that he told her he was leaving Australia permanently.
On 8 September 2001 the husband again went to Fiji. He returned to Australia on 8 October 2001. This trip related to his preparation for these proceedings. Whilst in Fiji he made one telephone call to the wife. She did not have a contact number for him and was unaware that he subsequently returned to Australia.
On 6 November 2001 the parties, via their legal representatives were advised that judgment was to be delivered on 8 November 2001. To accommodate the husbands counsel's commitments the date for judgment was brought forward to 7 November 2001. The parties and their legal representatives were directed to attend. Mrs F did not appear. Ms de Vere advised that the parties had reconciled and that orders could be made by consent in accordance with terms signed by the parties. Because the court must be satisfied, inter alia, that parties do consent to orders and, for example, consent has not be coerced the matter was stood in the list until 3.00pm and Mrs F was ordered to appear. She did not. Her solicitor advised the court that she had spoken to the wife and that Mrs F indicated that she would be at court as directed. Shortly thereafter the wife telephoned her solicitor and advised that the child was unwell and she couldn't come. The wife's solicitor expressed concern for client however concluded that she should withdraw from the proceedings. Again the husbands counsel pressed the court to make orders by consent. As the wife was neither represented nor present, the matter was adjourned. The matter was listed for further hearing or judgment at 2.15pm on 9 November 2001. The parties were directed to both file affidavits in support of an application for consent orders and to attend on 9 November 2001. Neither party nor anybody appearing on their behalf attended at 2.15pm. The matter was called again at 2.30pm and again there was no appearance. Thus the court could not be satisfied that the parties had reconciled nor that both wished to move the court to enter orders by consent. Thus the court delivered its reasons on the reserved hearing.
Relevant law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act [2]
Section 68F(2) Determining the best interests of the child
[2] (1997) FLC 92-755.
The child’s wishes
S is 3 years old. Fundamental to the husband’s case is his belief that the child wishes to live with him. He interprets every occasion that the child is upset at the end of contact as an indicator of the child’s wish to live with him. Given his age, the child does not have the capacity to formulate cogent wishes as to the parent with whom he would prefer to live. I am satisfied that he has not expressed any wish.
The nature of the child’s relationships
S is deeply attached to each of his parents. Both love him dearly and neither can contemplate a scenario where the child does not live with them. Each is committed to his welfare and success in life. When giving evidence, both parties spoke warmly and lovingly about their son. The wife had much greater insight into the child’s needs than did the husband.
The child has lived with the wife all of his life. Other than the periods when she was attending class or studying at home, she was his primary care giver. I accept her evidence that she, to a much greater degree than the husband, actively undertook the day to day care of the child. Thus, she fed him, including breastfeeding when he was first born, changed his nappies, bathed him and generally devoted her time to his care. More often than the husband she arose for the child in the night. Since separation she has been exclusively responsible for the care of the child, other than during periods of contact and the short period following her grandmother’s death.
Because he was working until August 1999, the husband was not as intimately involved in the child’s care during the first year of his life. Only rarely did he change nappies or get up to the child in the evening. He spent time with the child when he was home from work, playing with him and attending to his needs to a much lesser degree than the wife’s primary role. After he stopped work, the husband had more time to spend with his son. Nonetheless, when the wife was absent from the home pursuing her studies, the husband’s mother was substantially responsible for the child’s care. She has the care of two children as a babysitter. She cared for those children and the child together. Her care of the three children was complimented by her husband. The husband also complimented her care with the child.
Since separation the husband’s approach to contact with the child has been erratic. He is confounded by the wife’s decision to separate and his driving desire that she return to the marriage has influenced his actions. Because the child is upset at the end of contact and he has been unable to encourage or force the wife to return to him he decided that he would stop contact with the child. Thus the child, he believes, will be freed of the disappointment and stigma that comes with knowing his parents have separated. Three times since separation the husband has left Australia. He failed to tell the wife on a number of occasions that he would not exercise contact and so she attended the appointed contact changeover place with their son. Eventually, the husband conceded during cross-examination that the child would have been disappointed and upset by his father’s inexplicable lack of contact. His erratic and irresponsible approach to contact with the child will have undermined the child’s sense of security with his father. Restoring his secure attachment can be readily achieved provided the husband demonstrates his commitment and maintains regular contact with his son.
The child has a close attachment to his paternal grandparents. They competently cared for him when the wife was studying. They formed part of his daily life as all lived in the same home prior to separation.
The likely effect of any changes in the child’s circumstances
If successful, the husband’s proposal will require the child to leave his mother’s care. He would return to live in the home he lived in until separation, with the father and his family. He will be withdrawn from preschool and cared for by the combined efforts of his paternal grandparents and the husband. Whilst there is some advantage for a child enjoying the opportunities available at preschool, when the home based care given to the child is competent there are no relevant disadvantages in not attending preschool. S would have the company of the two children cared for by the paternal grandmother, a factor that would ameliorate the social isolation from other children that would otherwise exist in his father’s care.
The most significant change that the husband’s proposals require is that the child would no longer live with the wife. Because she has been his prime care giver separation from her on a permanent basis would be distressing for the child. In a major way it would disrupt his relationship with the parent who has been part of his life, every day of his life. Such disruption would materially undermine his adjustment, both in the short term and the long term. In the short term his distress would be profound. Whilst this would ameliorate with time, in the long term he would have to cope with the gradual shift in primary attachment to either his father or one of his paternal grandparents. The husband does not propose that the child have any contact with the wife other than in his home. This is untenable to the wife and the inevitable outcome of the husband’s proposal is that the child’s relationship with his mother would take on an artificial quality, constrained as it would be to a relationship exercised with unnatural constraints.
S has never lived in the exclusive care of his father. I am satisfied that changing his living arrangements will be disruptive and unsettling for him in the short and long term, even though the environment proposed by the husband is one with which the child is familiar. The wife has been the child’s prime care-giver. Her care of the child is competent and loving. She is committed to maintaining the child’s relationship with the husband, in a fashion that should he wish to do so, will enable the child to have a loving and healthy relationship with his father. The father’s proposals for contact, should he be successful qua residence, are inadequate and demonstrate little understanding of the child’s emotional needs.
The practical difficulty and expense associated with contact
Both parties live in the western suburbs of Sydney. The husband’s father agrees that he will collect and return the child for contact. He is able to do so. The wife does not have a car and does not receive any financial support from the husband. It is unreasonable, in those circumstances, to require her to spend what little money she does have on transport costs to implement contact.
Capacity of the parents to meet the child’s needs
Both parties are caring and intelligent parents. Since their migration to Australia, the wife has undertaken tertiary education and the husband was able to find employment. When giving evidence each discussed complex concepts intelligently and philosophically. Both parents have a desire that their son achieve academically and socially. Both parents have the capacity to meet the child’s physical and intellectual needs. His intellectual needs will develop and if he share his parents quick intelligence he is a child who should thrive academically. Both parents can promote his advancement academically.
A significant point of distinction between the parties is their capacity to meet the child’s emotional and psychological needs. The two are intrinsically linked. The wife recognises that the child loves both his parents as well as his paternal grandparents. Since separation she has committed herself to this aspect of the child’s needs, ensuring that she complied with the orders for contact as well as readily agreeing to additional contact at her home for the paternal grandparents. Until the child was withheld from her, before contact orders were made, she readily facilitated contact between the child and the husband as well as members of his family. She believes that the husband’s decision to stop contact and to refuse further contact if he is unsuccessful in his primary application for residence, will be psychologically damaging for the child. It will distress him in the short term and may be psychologically damaging in the long time. I agree with her.
The husband loves his wife and child deeply. However, unless he can maintain his family intact, he does not wish to have a continuing relationship with the child. Thus his relationship with his son must be structured, as far as the husband is concerned, in accordance with the husband’s wishes. If his conditions are not met, he says he will not see his son again. This attitude shows a callous disregard for the child’s emotional and psychological need for both his parents. It is a curious counterpoint to the husband’s assertion that the child needs both of his parents on a daily basis. Seemingly, the husband believes that unless the child can have both parents on a daily basis, it is preferable that he have only one. Because he rejects the concept of separation, the husband has made no attempt to help the child adjust to the reality of his parent’s separation. In the child’s presence, at contact changeover, he has criticised the mother’s decision to separate and to take the child. He has blamed her for the separation and created a spectre of false hopes for S that the family might be reunited. If it be that the husband consciously gives priority to his own emotional needs over his son’s psychological welfare, that is a major failing in his responsibilities as a parent. His obvious intelligence would enable him to analyse the damaging consequences of this decision.
I am satisfied that the mother has a greater capacity to meet the child’s psychological and emotional needs both in the short term and long term.
The child’s maturity, sex, background and other characteristics
I have already made findings as to S’s maturity and will not repeat them.
The child’s cultural heritage is Fijian Indian, which culture both parents share. Both parties have been joined in Australia by members of their extended family. The wife has her father, sister and her husband. The husband has his parents and sister. His brothers and their family regularly visit from Fiji. This extended family is culturally significant. The wife respects her parents-in-law and is distressed by the failure of her marriage. Her decision to separate has been a great struggle and one ultimately taken with great sadness.
The wife is Christian and the husband Muslim. The child carries a Muslim name. The father considers that his proposals are superior because the child will be reared within the Muslim faith in accordance with his family’s tradition. He fears that the child will be rejected within the Fijian/Indian community because his parents are separated and because in the wife’s care he will not live in accordance with Islam. The husband’s family are a model for successful religious diversity. His father is Muslim and his mother was Hindu. Their marriage was opposed by her family because of this. In more than thirty (30) years of happy marriage, the paternal grandparents have lived with mutual respect and love. The paternal grandmother’s family have recognised this and the deep rifts apparent upon the marriage have healed. One of the husband’s brothers has become a Christian. His wife is a Christian as are their children. When they visit from Fiji there is no pressure placed on the husband’s brother and his family to attend the Mosque or otherwise participate in Islamic rituals. The family lives in harmony with mutual respect towards one another’s religious beliefs.
In the wife’s care, the child will be exposed to both Christianity and Islam. She asks no more than the husband respect her religious beliefs and agrees that the husband can take the child to the Mosque during periods of contact and otherwise expose the child to the tenants of Islamic faith. At some point in his life the child will choose his own religious destiny. The wife is comfortable with this. In essence, she asks that the husband do no more than follow his own parent’s example of religious tolerance. Blindly, the husband chooses to ignore the example his parents have set.
I am satisfied that both parents will promote S’s enjoyment of his Fijian/Indian culture and adjust to life in Australia as a child enriched by two cultures. In the wife’s care he will have the opportunity to be exposed to his mother’s religious beliefs and to his father’s different beliefs. I am not satisfied that this will place the child at any risk of rejection by the Fijian/Indian community in Australia. The evidence does not establish that there is a risk the child will be discriminated against in his mother’s care because he carries a Muslim name. Should he wish to be involved in his son’s life, the husband has the opportunity to encourage the child’s knowledge of and participation in Islam.
The need to protect the child from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
There is no evidence of any violence, abuse or ill treatment by either party towards the child.
The attitude towards the child and the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties assert that S is the focus of their life. Since his birth, the wife has devoted herself to the responsibilities of parenthood. As his prime care giver, she met his physical, emotional, intellectual and psychological needs. She relied on the competent and loving help provided by her parents-in-law, and to a lesser extent the husband, when she was studying to complement her care of the child. In no fashion was this an abrogation of her responsibilities as a parent.
She has promoted contact since separation and is committed to the child’s future relationship with his father and paternal grandparents.
By contrast, the husband has withdrawn from the child’s life and has exposed the child to remarks that are critical of the wife at contact hand over. He has carefully analysed his response to the separation and in spite of his family’s advice to the contrary, has decided that it is in his and the child’s interests to terminate their relationship unless the child lives with him. It is possible that the husband hopes to force the wife to return to him anticipating that she would find the cessation of contact between the child and father a source of continuing guilt. She should feel no guilt. If the husband terminates his relationship with the child, it is the husband’s decision and only he is responsible for it. Such a decision, if taken, demonstrates a great lack of responsibility by the husband as a parent. It is inconsistent with any reasonable understanding of the child’s emotional and psychological needs.
Subsequent to separation, the husband has paid no child support. During cross-examination he asserted that the wife had a credit card and she could have used it. At no time did the husband indicate to the wife that she could use the credit card and it must have been apparent to him that she was not using it. He has a large sum of money in the bank and has been able to travel overseas three times since separation. He gave no adequate explanation for his failure to contribute to the support of his son. He gave no indication that he intended to contribute to his support in the future. This is a significant failure by him of his responsibilities as a parent.
Fundamental to effective parenting is the recognition that a child is entitled to a loving a healthy relationship with both parents. The constraints the husband proposes the mother’s contact with the child, that is it must be exercised at his home are ludicrous. They bear no relationship to the child’s best interests. They bear no relationship to the child’s entitlement to a loving and healthy relationship with the wife. It is no answer to the lack of logic about his proposal that the husband conceded he would comply with the terms and conditions of contact ordered in the wife’s favour. This compliance extended to facilitating contact exercised away from the home, but only if it were ordered. The husband’s proposals forcefully demonstrate his need to control the wife and the child. I am satisfied that his proposal is underpinned by two driving motivators. Firstly, because the contact structure is controlled and exercised under his aegis he could control the child’s relationship with the wife. Secondly, because the proposal would ultimately undermine the mother’s relationship with the child, in the interests of the child the wife might return to the husband. The husband’s proposals for contact are demonstrably inferior to those proposed by the wife.
Any family violence involving the child or a member of the child’s family
On 10 April 2001 the husband assaulted the wife. This was the catalyst for their separation. It was the final straw for a gentle person who is afraid of her husband’s angry outbursts. This was the only occasion that the husband has ever hit the wife. However, she gave evidence that he has thrown implements, shouted angrily at her and smashed the car windows in rage. She believes he is an angry and controlling man who when seriously challenged can respond violently. She is afraid of him. When giving her oral testimony addressing domestic violence and her fears of the husband, the wife’s evidence was compelling, and her demeanour was completely consistent with the gravity of the subject matter. On this issue, the husband’s evidence lacked the comparable conviction of the wife’s.
Although since separation the husband has attempted to force the wife to return to him there have been no further incidents of violence towards her. He forced the wife to his will in the weeks after separation insisting that she live with people nominated by him. Only if she did so would he agree to the child being with her. He stood in the way of the wife’s attempt to live with members of her family, living arrangements that were demonstrably adequate. His ambition, I am satisfied, was to isolate the wife from her family and friends and ultimately force her return to him. The manner in which the husband gave his evidence, his tone and demeanour, forcefully demonstrated his conviction that his wife’s obligation is to return to the marriage. I am satisfied, that he believes that by having residence and control of his son, he will ultimately achieve control of the wife.
It is unlikely that the husband’s need to control the wife has arisen since separation. It is more probable that it was a significant feature of their marriage prior to separation. His controlling nature in all probability has contributed to the wife’s fear of him and her preference to confer with his parents on matters relating to their child. There is a continuing risk that the husband will attempt to force the wife to his will, using the child if necessary. Although he has been violent towards her in the past, I am not satisfied on balance that there is a continuing risk of future violence to her.
Any violence family order
There are no current family violence orders.
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 child.
Unusually, the wife proposes orders for contact in favour of the husband in circumstances where he does not seek any orders for contact. When giving his oral testimony addressing his future relationship with his son, the husband’s evidence was considered and compelling. I am satisfied that he will walk away from the child and abandon his relationship with his son if the mother obtains a residence order. As will be apparent from these reasons, I am satisfied that it is in the child’s best interests that he live with the wife. Should the court, in those circumstances, then make the orders for contact proposed by the wife? Because there is the prospect, that with time and his parents and brother’s compassionate guidance, the husband may decide to resume a relationship with the child orders for contact should be made that will provide a structure for any future contact. The husband will have the opportunity to activate the orders and both parties will have a future structure for contact without the necessity of further litigation. Should more than one year pass during which the husband fails to exercise contact, then without further order, the contact orders made will be discharged. This is because the child’s relationship with the husband may well have been seriously damaged and the child’s capacity to enjoy the contact ordered will have been undermined.
Both parents were deeply distressed during the proceedings and it is in their interests, and hence their sons, emotionally and financially, that there not be further proceedings between them.
Any other fact or circumstance the court thinks relevant
There are no additional matters of significance to which this subsection is relevant.
Conclusion
In his mother’s care, S has the opportunity to maintain his relationship with both his parents in a meaningful way. He will be cared for by his primary care giver competently and lovingly. She understands the child’s physical, emotional and psychological needs. Her future plans involve returning to university, presumably to ultimately pursue a career in the financial industry. Sensibly, she has placed the child in preschool, giving him the opportunity to make friends and develop his social skills. This is a sensible precurser to her return to university in 2002. It will mean that the adjustment the child will need to make because the wife has returned to university will be small.
The wife has good family support available to her in Australia. This is demonstrated by her sister’s help at separation and subsequently. Not only did her sister invite the wife and child into her home, but she also took the wife to appointments and responded to the wife’s calls for help. Although he suffers serious health difficulties, having recently undergone bypass surgery and requires thrice equally dialysis, the wife’s father has helped her with the child and personally since separation. Like the husband, the wife is Fijian/Indian. S will be reared within the Fijian/Indian community and will enjoy its culture. To the extent that the husband submitted that there was a cultural advantage for the child living with him, I reject the submission. The wife’s commitment is no lesser than the husbands.
By comparison to the wife, the husband has chosen a path that has no logical connection to the child’s best interests. For his own reasons, the husband has chosen to ignore the fact of his separation from his wife in that he has intellectually and emotionally rejected separation. He submits, that the child can only have a relationship with the husband if S lives with him. This outcome, is the only outcome that will ensure the child has a continuing relationship with both of his parents. I have already made findings about the husband’s responsibility as a parent qua his future relationship with the child. I do not repeat them. Although he may wish it otherwise, inevitably the husband’s approach is one that places his own emotional needs ahead of the child’s. The risk that he will continue to place his own interests ahead of his sons in the future, is one that should not be taken.
For these reasons, I make the orders identified at the commencement of these reasons. This is in the child’s best interests.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 9 November 2001
0
0
0