G and G
[2001] FMCAfam 184
•5 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & G | [2001] FMCAfam 184 |
| CHILDREN – Residence – contact – best interests. |
| Applicant: | S W G |
| Respondent: | C J G |
| File No: | ZB 3079 of 2000 |
| Delivered on: | 5 September 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 4 September 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Simpson |
| Solicitors for the Applicant: | Colin Simpson Connor Hunter Law Firm |
| Counsel for the Respondent: | Acting for self |
| Address for the Respondent: | Mr S G 748 W Road |
ORDERS
The children, S M G, born on 4 ….. 1990, and L E G, born on 2 …… 1993, reside with the wife and she be solely responsible for their day to day care, welfare and development.
That the husband have contact to the children as follows:
(a)Each alternate weekend, from 5pm Thursday to 5pm, Sunday commencing on 6 September 2001;
(b)For one week in each alternate Easter, commencing Easter 2002;
(c)For one week in the September/October school holidays each year, commencing in the week closest to the end of the month;
(d)For one week in the Christmas holidays each year, commencing on the first day of those holidays;
(e)For the second last week of the Christmas holidays each year and extending for a further week on those occasions when the husband has not enjoyed contact the previous Easter;
(f)All the contact referred to in paragraphs (b) to (e) are subject to the husband giving the wife no less than 28 days written notice of confirmation of his intention to exercise such contact;
(g)For such tomes as agreed between the parties, on Christmas Day.
(h)As otherwise agreed
That otherwise all extant application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 3079 of 2000
| S W G |
Applicant
And
| C J G |
Respondent
REASONS FOR JUDGMENT
The proceedings
The husband's application is contained in his amended Form 3 application filed on 23 August 2001. The wife's response is set out in her Form 3A filed on 4 April 2001. However, by the time the parties were into the hearing their positions had changed again. The husband was seeking contact every three weekends per month for three nights, and the wife was proposing that he have contact from Thursday, 5 pm to Sunday, 5 pm, each alternate weekend. And in addition, that he have from after school, Tuesday, to 8 pm in each other week.
The issues
During the course of the proceedings the parties agreed that the husband should have four weeks holiday contact each year, being alternative Easters, one week in September/October school holidays, one week prior to Christmas and one week in mid January, so that when the husband missed the Easter week he should have an extra week in mid January. It was further agreed that he should give the wife 28 days notice in writing confirming such holiday contact, and in the event that he failed to do so, such holiday contact would be cancelled. Christmas Day would take place according to what the parties agreed upon. In addition to the contact issues, there were a number of specific issues orders that the husband sought pursuant to paragraphs 4 to 10 of his amended application. The wife opposed all of those orders.
Affidavits relied on
The husband relied on the following affidavits:
a)his affidavit sworn on an unidentified date and filed on 23 August 2001;
b)the affidavit of H D sworn on 10 August 2001 and filed on 13 August;
c)the affidavit of S O sworn on 12 July 2001 and filed on 13 August; and finally,
d)the affidavit of his parents, A and M G, sworn on 13 July and filed on 13 August 2001.
The wife relied on her affidavit which was sworn on 31 August 2001 and filed on the same date.
In addition, there was a report from Marie Tuohy, dated 26 June 2001.
History
The background to this matter arises from the following circumstances. The husband is 35 years of age; he was born on 1 …. 1966; he's a credit manager; he resides at 748 W. Road, M.. He has formed a new relationship with Ms H D and they spend a number of nights a week with each other, although they each retain their own residences.
The wife is 38 years of age, having been born on 15 ………. 1963; she's an office administrator with a family company, who lives at 8 A Court in A H. She resides, together with the two children, S and L, and D who is a 20 year old son of an earlier marriage. In addition to wages and Centrelink benefits she receives the sum of $370 per month child support from the husband.
The parties were married on 4 August 1990 and they separated in February 1997. It was a seven year marriage; there are two children of that marriage, S M G born on 4 …..1990 who is 10 years of age and is approaching 11. L E G was born on 2 …… 1993. She is seven years of age and not far off turning eight. Both children currently attend the HS State School.
It is conceded that the children have resided with the mother since separation and that the husband had alternative weekend contact and about one week of the school holidays, usually during the Christmas period. It is further conceded that the wife has offered the husband additional holiday contact, which he has not taken up.
Whilst there may be some minor dispute about the parties respective involvement in the children's early care is of little consequence, given that the husband admitted in evidence, that the children are more closely bonded to the wife, a matter that was confirmed by the counsellor.
When the parties first separated the wife worked full time and the children were looked after in a day care centre outside school hours. This arrangement lasted for about twelve months until she returned to live with her parents when she was assisted by her mother with the care of the children.
In 1999/2000 the wife reduced her working hours to correspond with the children's school hours and since that time she has been able to supervise and care for the children outside of school hours. The children in holiday time enjoy the company of the wife's family and have a close relationship with them and with their brother, D. Despite the fact that there have been no formal orders, the children during all of this time, enjoyed alternative week-end contact and holiday contact for one week in each year, which was all the husband wanted.
The wife in her order 30 affidavit concedes that in the distant past she has had problems with alcohol and drugs, but neither have interfered with her care of the children.
I accept her evidence without any equivocation in this regard, and although the husband admitted he was not in any way concerned about the mother's ability to care for the children, I was unimpressed with the fact that he unnecessarily referred to her alcoholism on a number of occasions.
The law
The relevant law with respect to contact orders and specific issues orders is as follows:
Contact orders and specific issues 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 underlie those objects. They are subject to section 65E in that determining the outcome of the best interests of the child is the paramount consideration. That is the overriding principle. Section 60B2(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact on a regular basis with both parents and other people significant in their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. It carries with it the clear understanding that contact should be as frequent as is appropriate and by the various means which are considered in the best interests of the child.
In deciding the contact arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F2. Its subsections 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 circumstances that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed. B v B Family Law Act (1997) FLC 92755. The section 68F factors include:
e)the child's wishes;
f)the nature of the child's relationships;
g)the likely effect on any changes in the child's circumstances;
h)the practical difficulty in expense associated with contact;
i)the capacity of the parents to meet the child's needs;
j)the child's maturity, sex and background and other characteristics;
k)the need to protect the child from physical or psychological harm; caused by abuse, ill treatment, violence or other behaviour;
l)the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents;
m)any family violence involving the child or a member of the child's family;
n)any family violence order;
o)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;
p)any other fact or circumstance the Court thinks is relevant.
Conclusions and findings
Whilst the holiday contact arrangements were ultimately agreed upon in the running of the case, I found the husband's explanations for not availing himself of holiday contact in the past as implausible and unconvincing. He ultimately said that he always wanted to have more time, more holiday time, but until recently they haven't been mentally mature enough, and that further, he thought they were better off enjoying the holidays with their cousins on S Island than at his house, with him. When asked what had now changed he responded "that he didn't know, but that it has become evident that he should seek it as an order" and in nearly the same breath he said in effect, of the future holidays, "I'm still happy to let them go with their cousins. I'll pay their cousins what ever it is for their cost during the school holidays."
When questioned further about why he had not requested the children for more holiday contact, he replied, "Honestly, I don't know." The ultimate facts in satisfying me that it would be unlikely that he will exercise all of the school holidays offered to him, was his indication that he would come back and ask for an order that the wife look after the children in the event that he was not able to take holidays. He followed this up by saying he "would probably not be able to take the holidays in September/October, which are only a couple of weeks away, and he was uncertain about the coming Christmas."
The wife's counsel alleged that the husband's application was motivated by child support matters. While I have no direct evidence of this, I am certainly suspicious, given that he sought additional contact in circumstances that he has not availed himself of holiday contact in the past. My suspicions about his financial motivation were not decreased by the fact that he pursued the wife firstly through the Child Support Agency, and then in the Small Claims Tribunal, for a reduction of child support. Finally, when the husband is offered a mid-week contact for three hours after school he responds that it would be a waste of time.
In respect of the husband's application for contact for three week-ends out of four, even when I put to one side my suspicions about his motivation for increased contact, I am not satisfied that to make such an order would be in the best interests of the children.
While I have no doubt that the husband loves his children and no doubt that S, in particular, wants to spend more time with him, there are a number of factors mitigating against the husband's proposal.
a)Firstly, while three week-ends out of four for three over-nights is not a shared arrangement, it is getting closer to one and certainly is likely to cause additional contact between the parties who are unable to communicate with one another.
b)Secondly, as the counsellor, Ms Tuohy, points out on a number of occasions, it would deprive the children of quality leisure time with their mother with whom they are more closely bonded and attached.
c)And finally, I believe it would be disruptive of the children's relationships with their family and peer group, given that what I perceive is the husband's lack of insight into his children's needs. In that regard, I compare his understanding of the girls' needs approaching puberty, with that of the mother's.
Indeed, I find the mother's proposals for contact for three nights on alternate weekends to be far more conducive to the children's needs. It certainly caters for an increase in contact hours. It allows the father to spend longer periods of time with the children and, if taken in conjunction with the school holiday contact that he has been offered, it will be a significant increase in his contact with both children.
The balance of the husband's application, as I've indicated he has set out in paragraphs 4 to 10 of his application. In regard to the orders sought pursuant to paragraph 4, 6 and 7 of the husband's amended application, I decline to make those orders as I regard them as matters which were more pertinent to the parties' obligations pursuant to the Child Support legislation, and there is no such application before me.
So far as paragraph 5 of that application is concerned, there is no evidence that suggests that I should require the two girls to attend State schools only.
In respect of paragraphs 8 and 9, I have indicated to the husband that it is not necessary to make such orders. He is entitled to be involved in discussions about the children's schooling, and the wife, through her counsel, indicated that the husband's parents will be placed on the emergency contact list.
I'm not prepared to restrict the wife in the way the husband seeks in paragraph 10 of his application. The wife's evidence is that she would be available to care for the children in the event of their illness and that is, no doubt, the appropriate arrangement.
Having said some things which are critical of the husband, it is important that the husband realises that the proceedings have not, in my view, advanced the children's best interests, and the issues should have been resolved outside of the litigation framework. However, I repeat that I have no doubt that the husband loves his children and that he can provide immense benefit to them, and I hope that he will concentrate his efforts on that in the future.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate:
Date: 5 September 2001
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