FNK and FRW
[2004] FMCAfam 185
•1 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FNK & FRW | [2004] FMCAfam 185 |
| FAMILY LAW – Children – varying existing orders – shared residence – circumstances where shared residence appropriate. Family Law Act 1975 (Cth), ss.65E; 68F H v H (2003) FMCAfam 41 |
| Applicant: | N K F |
| Respondent: | R W F |
| File No: | PAM 4164 of 2002 |
| Delivered on: | 1 April 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 1 April 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Allan |
| Solicitors for the Applicant: | Bell & Partners Solicitors |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Quinns |
ORDERS
All earlier parenting orders are discharged.
The children are to live with the mother from 6.00pm on Christmas Eve until 1.00pm on Christmas Day in 2004 and each alternate year thereafter and with the father from 6.00pm on Christmas Eve until 1.00pm on Christmas Day in 2005 and each alternate year thereafter.
If either of the children's birthdays should fall on a day when the children are in the care of one parent, then the other parent is to have contact with the children for two hours if the day is a school day and for four hours if the day is not a school day.
The father is to have contact with the children from 9.00am to 6.00pm on Father's Day in each year.
The mother is to have contact with the children from 9.00am to 6.00pm on Mother's Day in each year.
The father is to provide the mother with a written copy of his roster each three months or within two days of any rostered change.
The children are to live with the father for a period of not less than two weeks:
(a)during the month of January in each year; and
(b)during any of the other school holiday periods in each year.
The father is to give the mother three months written notice of his intention for the children to live with him during the school holidays as set out in order (7).
The mother is to give the father three months written notice of her intention for the children to live with her for a period of not less than two weeks during the autumn, winter or spring school holiday periods in each year.
The mother is to authorise the children's schools to provide the father with copies of reports and correspondence and school photographs relating to the children.
The mother is to provide the father with notice within a reasonable time of the children's school sporting, recreational or social activities or functions or other events in which the children participate and the father shall be entitled to attend same.
The parties are to keep each other informed of any issue relating to the children's health, education, development and well being.
The parties are to immediately notify each other of any emergency relating to the child's health or other issue concerning the child's well being.
Neither party is to denigrate or criticise or use offensive or insulting language to or about the other party or any other person living in the other party's household in the presence or hearing of either of the children or permit any third party to do so.
The parties are to consult with each other about any issues relating to the long term care, welfare and development of the children to include but not limited to any change of school, any surgical treatment or the enrolment of either child in any sporting activity.
The father is to have telephone contact with the children on two occasions during each week when the children are not in his care.
During all periods of block residence as provided by orders (7), (8) and (9), the other parent is not entitled to residence which will be suspended for the duration of the block residence.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4164 of 2002
| N K F |
Applicant
And
| R W F |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the mother to vary some orders which were made by consent between the parties which effectively provided for a form of shared residence. Those orders were made in the Local Court of New South Wales at P on
17 September 2002 although they have been varied by agreement between the parties both formal and informal since then.
The parties agreed to further orders by consent on 18 September 2003 in this Court which were relatively minor in their operation. There were property orders which were made by consent on the same day.
The orders concern the two children of the parties' marriage. A boy called M S F who was born on 6 October 1997 and a little girl called S J F who was born on 1 April 1999. It is not in issue that the mother has been the primary caregiver of the children, but the arrangements between the parties have been quite different from what is referred to as the conventional situation due to work arrangements of the father.
The father is an ambulance officer and works shift work and with some variations, the children have resided with him three days and two nights during the week. The father's work roster, which remains fixed and certainly has done so for a considerable period of time, is effectively an eight day working week. This has had the effect that the father has three days working and then four days when he is not required for work. He does not seek overtime and has not agreed to be on call. He says that he has done this so that he can tend to his duties with the children, although the mother says that it is more connected with the payment of child support or the rate at which child support is paid. There is certainly no issue that the child support is being paid.
The effect of the roster is that the periods of residence with the father commence one day later each week due to the fact that it involves an eight day working week. What the mother says is that this arrangement no longer works. It is confusing, it is disruptive to the children, especially the older child M who is very dependent upon her and requires a fixed timetable. The mother also makes the point that it is disruptive to her family life in that it affects the children's relationship with their half sister, C B B, who is a girl now aged 13.
C is the child of the mother's previous relationship with another man. That relationship ended with the parties' separation in 1991. The parties in this matter met that same year and commenced cohabitation in March of 1997, were married in July of that year and the children were born in October 1997 and April 1999. They separated in August 2002 and have remained apart ever since. The mother is now in another relationship.
The father has, at all material times, been involved in his employment as an ambulance officer working this rotating shift. There was some evidence as to the father's relationship with the child C which the mother says is not good although the father says that it is better than the mother would suggest. This is not a matter upon which a great deal turns. As I said, the mother is now in a relationship with another man, a Mr H, who has given evidence by affidavit in these proceedings and is not require for cross-examination. The mother also relied on an affidavit of one C A W who also was not required for cross-examination. I have had the opportunity of hearing both parties.
Effectively, the mother says that the shared care arrangement which has applied for the last 18 months is no longer a workable arrangement. She says it causes disruption in her current household. It is quite clear from the mother's evidence that she has found this somewhat distressing, although I am not entirely clear as to the nature of that distress. She says that the arrangements for the children spending time with their father are out of synchronisation with her elder daughter C who has contact with her father on a more conventional basis. It is quite clear that this would be the case.
The mother also says that now that the children have started school and both children are at school, that this arrangement which may well have worked when the children were at preschool is no longer appropriate. She says that M finds it difficult to cope with as he is not sure when he is supposed to be with his father and when he is not. She has taken steps to have him seen by a psychologist, Ms H, although there is no affidavit from Ms H. Mr Allan of counsel explained that Ms H has not seen the child for long enough to be in a position to give affidavit evidence and in fact the next appointment is not until tomorrow. I am satisfied with the explanation given as to the absence of an affidavit from the psychologist concerned; quite clearly, if the psychologist has not seen the child often enough to be able to offer any comment on the situation then an affidavit would be at best superfluous and at worst misleading.
The father says that despite what the mother puts, that the arrangement works quite well. He says that the children are not distressed by it. He says that the arrangement which does differ in some points of detail from that which the parties worked out in September 2002 is one that suits the interests of the children, it allows him as the father to have an input into the lives of the children including taking the children to school and particularly, collecting the children from school. The children are in their early years at school. S has only just started school. She finishes about 10 minutes earlier than M does and the arrangement is that the parents of the little ones have to actually attend at a classroom to take delivery of their child. He does that, he organises to meet M at a particular point in the playground and then he takes both the children back.
I would comment in passing that the school's policy in requiring children in kindergarten to be actually collected by a parent and not cast loose into the world sounds to me a sensible one with strong child protection overtones and would be a policy designed to ensure that children are not left unattended, which would be very distressing for little ones. The school is to be commended for this policy.
The parties communicate by SMS message and the father says that he is certainly prepared to talk to the mother, although the mother does not talk much to him. There is some slight evidence of ill feeling between the father and the mother's present partner. This does not seem to be a big issue and indeed the gentleman concerned was not required for cross-examination. It would appear to me to be a matter that has the potential for problems however and the father needs to be mindful of the fact that for whatever reason he and the mother are now separated, and they have been separated for some time and parties are at liberty to form new relationships. Just because a relationship comes to an end does not mean that the parties to the relationship need to live in solitude or even celibacy for the rest of their lives. It would be unfortunate for the children if any ill feeling between the two men concerned were to be passed through to the children as it would be disconcerting for them and affect their relationship. Because whatever orders that the Court makes today, the children are going to have to live in those households for varying periods of time on a regular basis.
This is not a matter where it is suggested that there should be no contact and indeed the mother, to her credit, commented during the cross-examination the reason why the children spend time with their father is because he is their father. The mother is quite firm on that and she quite clearly appreciates the importance of a proper relationship between the children and both parents, and that obviously is to her credit.
There have been issues arising about M playing or attending sport and there seems to have been a lack of communication there.
I have had the opportunity of reading through a variety of materials concerning school reports and copies of certificates which was tendered without objection. It relates mainly to M, which is hardly surprising as he has been at school the longer. His school report for second semester 2003 was a very positive one. The comment was:
M has achieved significant results in all areas of his work in 2003. He is beginning to read, write and spell independently. He enjoys maths activities and sharing observations and findings. He is sometimes reluctant to participate in activities involving an audience. He retains information. He is a happy boy at school and enjoys the company of his peers. M has been a delight to teach.
I can only comment that any parent would be delighted to receive a report about their child saying that, as in this case, he has been a delight to teach. The principal's comment is that M has made a great start to school.
S has received two bronze certificates which are clearly a sign of approval from the school carrying with them the comments:
“Well done”
The material indicates that S during the short period of time that she is in school and M for a longer period of time with his school, appear to be doing quite well and are fitting in. Certainly M is fitting in happily into the school environment. This is a good start for the child M and he has clearly demonstrated that he benefits from school and it seems that P Public School is meeting M's needs. On what little evidence there is available to me about S, a similar comment would apply.
I am referred by Mr Allan of counsel to a most useful list of guidelines referred to by learned colleague, Ryan FM, in a case of H v H (2003) FMCAfam 41. These guidelines relate to shared care or shared residency. I would comment that her Honour has previously referred to these guidelines, amassed a considerable amount of research in an earlier decision which her Honour handed down in 2002. The citation is A v V (2002) FMCAfam 273. I did in fact refer with approval to those guidelines in a decision that I handed down in Brisbane on
21 November 2003 which is referred to as T v T (No 1) (2003) FMCAfam 581. It may be taken then by practitioners that the guidelines as to shared residency set out in these three decisions represent the kind of considerations that the Court will take into account in looking at these situations. I commented in T v T (No 1) that the list is not intended to be an exclusive list, nevertheless it is a useful list.
The principles are these. The Court must consider:
a)The parties' capacity to communicate on matters relevant to the child's welfare.
b)The physical proximity of the two households.
c)Are the homes sufficiently proximate for the child to maintain friendships in both homes?
d)The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment.
I might comment that it does not necessarily apply just to the 50/50 situation.
e)Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
f)Where they disagree on these matters, the likelihood that they would be able to reach a reasonable compromise.
g)Do they share similar ambitions for the child, for example religious adherence, cultural identity and extra-curricular activities?
h)Can they address on a continuing basis the practical considerations that arise when the child lives in two homes? If the child leaves necessary school work or equipment at the other home, will the parents readily rectify the problem?
i)Whether or not the parties respect the other party as a parent.
j)The child's wishes and the factors that influence those wishes.
k)Where the siblings live.
l)The child's age.
Her Honour went on to say in A v V (supra):
This list is not exhaustive, it does not do more than set out some usual elements that a Court will consider to the extent that each may be relevant. It does not usurp the typical role of section 65E nor section 68F(2). Each factor fits comfortably within section 68F(2).
I am also mindful of the decision of the High Court of Australia in Gronow v Gronow (1979) FLC 90-716, particularly the decision of Murphy J.
In this case there are some differences between the parties. It does not appear to me however that despite the differences between the parties there is a complete failure of communication. SMS messages are not the ideal method of communication but it seems to be a way whereby the parties can communicate on matters relevant to the children's welfare.
The households are not a great distance apart. This is not a situation where a great deal of travelling needs to be done. The children should be in a position to maintain friendships, especially as far as school attendance is concerned. There is some difference between the parties as to what role the father has played in the part although it is not suggested that then nor is it suggested that now the father would be playing a 50/50 role. Rather, it is a shared care arrangement which coincides with the father's work roster and work time off and which can apply during school holidays.
There has been an example of disagreement between the parties over the child attending football training, although that appears to be a miscommunication more than anything. There is no evidence that the parties have widely differing views on things such as discipline, health, homework or sleeping pattern. Indeed the father gives evidence that he gives the children their meal at approximately the same time in the evening as the mother does. It would seem that the father accepts the mother's timetable as far as that is concerned.
Whether the parties can reach a reasonable compromise by communicating by SMS is perhaps conjectural. There is no evidence before me that the parties do not have similar ambitions for the children. It does seem to me that they have worked out a method where they can communicate on matters relating to day to day matters and it does seem to me that notwithstanding the differences of the parties each party respects the other party's role as a parent. I commented earlier that the mother to her credit commented on the fact that these arrangements needed to be in place because the respondent is just that, the children's father.
The children are too young for their wishes to be given a great deal of weight at this stage. There is a child C who is the half sister of the children but as far as the children are concerned she has always been there, she has always been in their life, she is to them as much a sister as a sister of the full blood would be. It is important that they should spend some time with C. It is unfortunate that the contact arrangements relating to her and her father do not synchronise with the arrangements between the two younger children and the respondent. This however has always been the case. C was there first and the arrangements with C's father which need to be preserved were in force when the original orders as amended were made.
On balance, whilst the mother expresses some views as to the disruption of her household, the evidence does not seem to me to bear out the claim that the arrangement is deleterious to the welfare of either child. It is a complicated arrangement in that the time the children spend with the father does not commence on the same day each time, it goes forward one day. The father says that it has been a pretty standard arrangement and indeed there is a calendar annexed - it would seem to me to be to the benefit of the parties if the father were to provide on a regular basis a copy of a calendar to the mother with the days marked on it, that would be just as much of benefit to the children as it would be to the mother.
I am of a view that there should be an order restricting the parties from making critical comments about each other or other members of their household in the presence or the hearing of the children. It does no good to the children, who have a loyalty to both parents.
It is a matter where the mother needs to have some time during the school holidays for her to have a holiday with the children when she could take the children away for a period of time without there having to be a consideration of the children having to go back to their father. Just as the father needs to take holidays and for there to be block time with him, the mother needs to have that too.
I had omitted to make a specific order about telephone contact but I do think telephone contact is important.
There is a need for the parents to give each other appropriate notification when there is going to be a change to the orders. It is the situation where the father can get leave from his employment at times other than the Christmas January school holidays and he needs to bid for that leave I understand and that leave needs to coincide with the leave awarded to other employees in the New South Wales Ambulance Service. I have no doubt that leave during the school holidays would be at a premium as other employees would have children at school and would perhaps be married or otherwise in a relationship with people who work in the school system. If the father is able to obtain leave during some other school holiday period than he should be in a position to give the mother plenty of notice.
As far as the regular contact arrangement is concerned which is to take place on the usual basis, it was originally set out in orders made in September 2002 but has been varied both formally and informally since then. The parties are perhaps the ones who know best the exact terms of it and what I propose to do is to leave it to counsel with the assistance of their clients and their instructors to in fact draft a minute setting out the arrangements to coincide with the father's roster as they presently stand and are understood by the parties. That will be order (1) that I will make.
It is for these reasons that I make the Orders as set out at the commencement of this decision.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 16 April 2004
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