G and B - [2001] FMCAfam 199

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & B [2001] FMCAfam 199

FAMILY LAW – contested residence – Rice & Asplund threshold test – contact dispute only – best interests of child.

Applicant:

B J G

Respondent:

A E B

File No:

ZD 2145 of 2000

Delivered on:

6 September 2001

Delivered at:

Darwin

Hearing Date:

6 September 2001

Judgment of:

Baumann FM

REPRESENTATION

Solicitors for the Applicant:

Applicant appeared in person

Counsel for the Respondent:

Ms Terry

Solicitors for the Respondent:

Janet Terry Barrister & Solicitor of Darwin

Solicitors for the Child Representative:

Northern Territory Legal Aid Commission

ORDERS

That the orders made in the Family Court of Australia on 4 June 1999 be discharged.
That the child C R G born 14 December 1995 reside with the mother.
That each party have sole responsibility for the day-to-day care, welfare and development of the said child during any period that the child is in their care pursuant to these orders.
That the parties have joint responsibility for the long term care, welfare and development of the said child and, in particular that the mother consult the father prior to any proposed change of the child’s school.
That the father have contact with the child as follows:
5.1Each Wednesday during school terms from the conclusion of school until 7.00pm, with the father to collect the child from school at the commencement of contact and return the child to the mother’s residence at the conclusion of contact;
5.2Each alternate weekend during school terms commencing on
14 September 2001 from the conclusion of school on Friday until the commencement of school on Monday, such contact to be extended to include any public holidays falling adjacent to such a contact weekend, with the father to collect the child from school at the commencement of contact and return the child to school at the conclusion of contact;
5.3For one half of each school holiday period each year at times to be agreed between the parties, but in default of agreement for the second half of each school holiday period in 2001 and each alternate year thereafter and for the first half of each school holiday period in 2002 and each alternate year thereafter;
5.4From 5.00pm on Christmas Eve until 1.00pm on Christmas Day in 2001 and each alternate year thereafter;
5.5That contact be suspended from 5.00pm on Christmas Eve until 1.00pm on Christmas Day in 2002 and each alternate year thereafter.
5.6In the event that Father’s Day does not fall on a contact weekend, for 4 hours on Father’s Day at times to be agreed between the parties, or in default of agreement, between 2.00pm and 6.00pm, with the father to collect the child from the mother’s residence at the commencement of contact and return the child to the mother’s residence at the conclusion of contact;
5.7That in the event that Mother’s Day falls on a contact weekend, that contact be suspended for a period of 4 hours on Mother’s Day at times to be agreed between the parties, or in default of agreement, between 2.00pm and 6.00pm, with the father to deliver the child to the mother’s residence at 2.00pm and collect the child from the mother’s residence at 6.00pm;
5.8In the event that the child’s birthday falls on a school day, from the conclusion of school until 5.30pm, with the father to collect the child from school at the commencement of contact and return the child to the mother’s residence at the conclusion of contact;
5.9In the event that the child’s birthday falls during a non contact part of school holidays, for a period of 4 hours on the child’s birthday at times to be agreed between the parties, or in default of agreement, from 2.00pm until 6.00pm, with the father to collect the child from the mother’s residence at the commencement of contact and the father to return the child to the mother’s residence at the conclusion of contact;
5.10In the event that the child’s birthday falls on a contact part of school holidays then contact is suspended for a period of 4 hours on the child’s birthday at times to be agreed between the parties, or in default of agreement, from 2.00pm until 6.00pm, with the father to deliver the child to the mother’s residence at 2.00pm and collect the child from the mother’s residence at 6.00pm;
5.11In the event that the father’s birthday falls during a non contact period, by telephone on the father’s birthday each year;
5.12In the event that the mother’s birthday falls during a contact period, that the father cause the child to telephone the mother on the mother’s birthday each year;
5.13At such further or other times and upon such terms as may be agreed between the parties.
That the father is restrained and an injunction is granted restraining the father from entering the mother’s property and each party is restrained and injunctions are granted restraining each party from abusing the other at any contact handover.
That the mother authorise the child’s school, any sporting clubs or other associations with which the child is involved to provide to the father at the father’s request and cost copies of any reports, photographs, newsletters or other information in relation to the child and should the father enrol the child in any activity, he will similarly authorise any such association to provide such information to the mother.
That each party keep the other advised at all times of their current residential address and telephone contact numbers and advise of any change, if possible, 7 days prior to such change.
That each party notify the other immediately in the event that the child is hospitalised whilst in that party’s care.
That the father purchase a Communication Book within 7 days and that both parties utilise the Communication Book for the purpose of conveying information about the child to the other party.
That all changeovers which are not to occur at school pursuant to these orders shall occur at the mother’s residence until she takes up permanent residence at Corroboree Park, at which time, they shall take place at the Humpty Doo Shopping Centre.
That all extant applications be otherwise dismissed.

AND IT IS NOTED that these orders are made in contemplation of, but are not conditional upon, the mother moving with the child to Corroborree Park in the future and that the child will change schools as a result of that move, if it occurs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN

ZD 2145 of 2000

B J G

Applicant

And

A E B

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application which proceeded to today, initially in respect of matters raised by the father's response filed 30 April 2001.. The dispute relates to parenting issues for the child, C R G, the much-loved daughter of the parties, born 14 December 1995.

Background

The background of this matter is well-known to the parties and need not be the subject of any substantial recitation by me now, save to say that it appears clear that the parties commenced cohabitation prior to the birth of C, and separated on 1 August 1997.
Since that time with some regret it appears that there have been a constant stream of litigation in relation to C's arrangements. At the very least, I have identified orders by Graham J on 20 February 1998 and final orders for residence and contact made by O’Ryan J on

4 June 1999 after a contested trial running for 2 days. Further orders by Federal Magistrate Coker on 10 November 2000, Federal Magistrate Scarlett of 8 February 2001 and Chief Federal Magistrate Bryant on 6 April 2001, such orders effectively being procedural.
The consistent theme however since separation has been that the child C has resided with the mother and the father has essentially had regular contact to the child, but for two periods where the mother suspended contact about which I will say more shortly. When this matter commenced today, I raised with the parties my concerns about whether in fact the application for change of residence was capable of meeting the threshold test which was raised in the long-standing authority of Rice v Asplund.

Threshold test

Because of my concern that the matter had not apparently been raised earlier, coupled with the fact the parties had apparently been waiting for some months for final determination of the issues, a matter which I believe regretfully has attributed to not only the cost and the anxiety of the parties, but a further cementing of their positions. I indicated that I proposed to adopt the process permitted by the Full Court in Bennett's case which allowed me to deal with the threshold question at the same time as I dealt with other substantive matters, rather than to deal with the same as a discrete issue.
At the start of his final submissions, the father indicated that as a result of the evidence he had heard, he withdraws his application for residence. Whilst that is, it seems to me a most appropriate response, frankly that response ought to have been given much earlier than his final submissions. The evidence today was not significantly different than that which, at the very least could have been determined from a realistic and honest assessment of the affidavits to date, coupled in particular with the report of the child report writer.
Having said that, I can indicate that if the father had not withdrawn his application for residence, I would have found that the threshold test set by Rice v Asplund had not been met. A recent examination of those issues was made by Collier J in an appeal from a decision of Federal Magistrate Ryan in King v Finnerman. In that case, Collier J said, indicating that there would need to be a change of circumstances of significant character to get past the Rice v Asplund principle, that:
“The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence a court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change of the orders. It merely indicates that the change or fresh circumstances must be such with taking into account there is a real likelihood that a change may follow.”
I adopt those comments. I can indicate that in my view there is nothing on the reading of the material which could have amounted to such a fresh circumstance. The reason I have spent some time in these reasons identifying the principle in Rice v Asplund is to make absolutely clear to the father that he should not lightly commence proceedings in the future unless there is a significant issue of change.
I also say that the report of Ms Derrington, which was to some extent the subject of criticism by the father, in my view is both a balanced, sensible and rounded report which made appropriate recommendations which I would support on the evidence that I have seen. The one issue which the report does not deal with, but which I sense has been the continuing fuel for dispute between the parties, has been the allegations made by the mother based on disclosures to her of the child.

The evidence

In that respect and bearing in mind that the only issues I need to deal with now are contact, I should make the following observations. I felt that the mother saying, as she did in the witness box, that she would believe anything her child said, to be naive and reflected it seemed to me, the extent to which she was wishing to accept any negative comment about the father. A fair and honest reading of Ms Derrington's report and consistent with the evidence I have heard, is that the father is a loving, caring if not to some degree at times a demonstratively obsessive parent who wants nothing more for this child than what is best for the child.
The allegations of child abuse which have now been made on two occasions (although of separate events), have not been the subject of any finding of a court. However, can I indicate in relation to the evidence put before the Court in relation to the disclosures of June 2000, that I would have no difficulty in finding on the evidence as produced that there was no unacceptable risk to the child being in the care of the father. The mother suggested that if similar disclosures were referred to her in the future, she would probably react in the same way. That brings with it some concerns, for although no parent could be criticised for causing some evaluation of a serious allegation of abuse being made in this case where raising allegations of a serious nature without proper foundation and then having so raised them, suspending contact and permitting that suspension of contact to persist well after the report, of the Child Protection Officer was available has had a significant effect on all relationships.
Having said that, the mother presents in the witness box as a person who is very child-focused, committed and devoted to the child who she has the predominant care of since separation. There was no real basis upon which the father, other than for the issues about mother's conduct which I have just dealt with, could levy any criticism at all against the mother. This has not been an easy relationship to co-parent the child. She has clearly had the support of her mother and extended family and now it seems Mr T. No real criticism could be directed to any of those parents in view of the support they have given obviously associated with the best interests of the child.
It is, I think, a reflection of credit to the mother that notwithstanding the high level of conflict and the lack of communication in any real sense that the child presents to the child report writer as happy, enthusiastic, genuinely energetic and a fairly normal well adjusted child. The only thing I should say then before dealing with the contact issues, is that both parents found it particularly difficult to make any concessions about the other and about the positive attributes that the other parent might be able to provide for the child. This child has not been asked and should not be asked to make choices between her parents.
The trial has had perhaps some therapeutic benefit and the report of Ms Derrington may also be of some benefit to the parties in helping them be reminded consistently of the important role the other party has in the development of this young child. Moving to the issues of contact, it seems clear to me based on the evidence I have heard, that the child has been to some degree exposed to the conflict but has been able to avoid a lot of tension between her parents, through the good efforts of the maternal grandmother. Having said this, I should indicate that I had read the affidavit of the paternal grandmother. Grandparents in conflictual situations have a special role to play; they provide the child with the sanctuary from the conflict that is often present in the home of their parent. In this case it seems to me both natural and normal that the child should have what is obviously a close and loving relationship with the grandparents on both sides of the family, or the grandmothers in particular. It is for that reason I am sure that Ms Derrington saw no need to involve the father's mother in the interviews for her report.
Ms Derrington's conduct is not in my view capable of reasonable criticism in circumstances where, although the father's mother is an important part of the father's extended family, (and therefore significant that the child) she is not in the same day-to-day position as the maternal grandmother. Ultimately the issue of conflict came to the following dispute that needs some determination. It is now agreed by the parties – I think again reasonably, that with the child of school age, alternate weekend contact is the more appropriate regime.
This reflects, as the mother indicated quite properly, an opportunity for the child to be able to spend with each parent a weekend of fun and enjoyment. In my experience, often it is not properly appreciated that as children get more immersed in school life, the weekends become a special time of sharing and quality time with their parents. I think the father has been responsive by accepting that the child of her age is now capable of moving to a regime of weekend contact.
The mother says that the weekend contact should run from after school on a Friday to 5pm on a Sunday. She says it is important for the child to be prepared for school the following day. As I have indicated, I propose that the child representative assist and discuss with the parties after these reasons to formulate the exact orders. My view is that the father's proposal that the child be collected by him from school and returned to school is a satisfactory proposal for these reasons. Firstly it reduces the amount of contact which is necessary between the father and other members of the family of the mother, or the mother herself.
Secondly, it seems to me that with a child of this age, a routine that involves the father collecting and returning the child is one which will quite comfortably occur should the mother ultimately live in Corroboree Park. I have contemplated during the course of submissions whether in fact there should be a change when the mother ultimately moves to Corroboree Park but it seems to me that the earlier the child gets into the routine, which is likely to be a long-term routine, the better.
Extended holiday contact brings with it a need to prepare the child for a whole range of activities. Preparing this young child for school ought to be something which I am satisfied, the father can achieve. The other positive attribute of changeovers in this way on a fortnightly basis is that it seems to me that it will give the father a regular opportunity to show the enthusiasm for the child's education which he has indicated he wants. He will have the opportunity in a very natural environment, as an extension of his collection or return of the child, to speak to teachers to get appropriate information from the schools to forthcoming events or to be integrated into some of the activities of the child if that is appropriate.
I would propose that an order be made that the mother authorise the school to provide to the father the usual documents that she would receive. Before leaving the issue of schooling, I should note that the order should, in my view, provide a notation whereby the father's concession that he has no objection to the child moving from the current school when the mother moves to Corroboree Park is recorded.
It is my view that the mother's proposal for change of school at that time which currently is to St F of A Catholic Primary School at H D, may well be a reasonable proposition and one which the father could not have any reasonable objection to. The specific issues order of O'Ryan J reflected that the parties should consult about the matter. The notation to the order should assist a future court in being satisfied that the father was aware of the mother's intentions to move and, that a change of schooling ought not be an issue in the future.
In relation to the mid-week contact, I propose that there be a weekly mid-week contact. That mid-weekly contact shall be on a Wednesday afternoon from after school until 7pm. This regime of contact should be suspended during normal school holidays. Often there will be some re-adjustment required to the cycle of contact because of school holidays and if necessary the order can reflect that. Both parties agree that holidays should be shared. In relation to the forthcoming Christmas holidays, an issue has arisen as to whether the Christmas holiday should be shared or whether, if that was to occur, resulting as it would in the non-holiday parent at the time having access or contact on Christmas Day, there should be some change.
The mother proposes that in those circumstances, holiday contact ought not occur until after Christmas Day. With a child of this age, it seems to me that the sharing of Christmas is an important event in the calendar to the extent that plans to travel interstate at this age will be delayed until after Christmas Day. I think the arrangement for sharing of Christmas must therefore take precedence. If, for instance, one party has the child for the first half of the holidays, then I would propose that in one year the – if you like, non-holiday parent had contact from 5pm Christmas Eve until 1pm Christmas Day.

The person with the benefit of the first week of the holidays would have the holiday contact suspended during that period; which means that the holiday parent would have Christmas Day from 1pm until the rest of the first half of the holidays. I appreciate that in a sense this might mean at this stage a difficulty in sharing what seems to be Christmas Day with the paternal grandmother who lives in South Australia, but the parties live in Darwin; I think that is the best I can do at this stage. It may well be, as the child gets older, that the parties can agree to a variation.
There was some mention made by the father of the fact that the mother's birthday will always fall within the middle of the June/July school holidays. Whilst I appreciate that that is an important event in the calender of both the child and the mother, it seems to me that that being an important longer holiday it will follow that with holidays alternating from first half to second half the years, every second year it may be that the child will be having contact with the father on the mother's birthday and every second year the child will miss sharing the Mother’s birthday, on the day. In those circumstances, there should be appropriate arrangements for the child to contact the mother by telephone if away from Darwin.
In the end result, the mother – I think, reflective of the fact that she has been prepared to change her position during the course of today's hearing, indicated that she was prepared to allow the child to be returned as it will now after the Wednesday contact to her home. It is clear that the mother has some reservations about the father coming close to her home. The order should provide specifically that when the child is returned to the mother's home, the father is not to enter the property of the mother's or to approach the mother in any way. Should there be any evidence in the future that the father has not complied with this order, then there would be every prospect that changeovers will again have to take place at a park or similar public place.
My reason for strongly encouraging the parties to have change overs at the home of the child, is that that is a natural environment for the child to have changeovers, and gives a very strong positive message to the child that to some degree the parents are developing some form of mutual trust. I also propose that the parties use a communication book and the order should provide that that communication book to be purchased by the father be used for the purposes of communicating about issues in respect of the child.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date: