GAT & FLC
[2006] FMCAfam 53
•8 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAT & FLC | [2006] FMCAfam 53 |
| FAMILY LAW – CHILDREN – Residence – best interests of children – shared residence considered – role of grandparent considered – where two brothers are identical twins and third child is a young girl. |
Family Law Act 1975, ss.60B, 65E, 68F
Stevens and Lee (1991) FLC 92-201
Bright and Bright v Bright and Mackley (1995) FLC 92-570
A v V [2002] FMCAfam 273
Gronow v Gronow (1979) FLC 90-716
MacEnearney v MacEnearney (1980) FLC 90-866
Archboldv Archbold (1984) FLC 91-538
Jones v Dunkel (1958-1959) 101 CLR 298
| Applicant: | A T G |
| Respondent: | L C F |
| File No: | NCM 2121 of 2005 |
| Delivered on: | 8 February 2006 |
| Delivered at: | Newcastle |
| Hearing date: | 6 and 7 February 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Nash |
| Solicitors for the Applicant: | Nash Allen Williams & Wotton |
| Solicitor for the Respondent: | Mr Riviere |
| Solicitors for the Respondent: | Graeme J. Peters Solicitor |
ORDERS
That the children A C F born 9 May 2000, T J F born 9 May 2000 and V J F born 25 December 2002 are to live with the Respondent father as follows:
(a)from after school or pre-school on each alternate Thursday during school term time until 8:30am on the following Tuesday commencing on Thursday 16 February 2006;
(b)for two weeks in January commencing on New Year’s Day;
(c)for one week in the December school holiday period at a time to be agreed between the parties;
(d)for one week during each of the Autumn and Spring school holiday periods;
(e)for the entire period of the Winter school holidays commencing at 9:00am on the day after school term finishes and concluding at 5:00pm on the Saturday before school;
(f)on Father’s Day in each year from 5:00pm on the Saturday before until 5:00pm on Father’s Day;
(g)on the father’s birthday and on 9 May each year for not less than two hours if the day falls on a day when the children are required to attend school and for not less than four hours if the day falls on a day when the children are not required to attend school;
(h)on each alternate Christmas Day from 5:00pm on Christmas Eve until 5:00pm on Christmas Day commencing on Christmas Day 2007; and
(i)at such other times as the parties agree between themselves.
The said children are to live with the mother at all other times.
If Mother’s Day should fall on a day when the children would normally live with the father, the mother will have contact with the children from 5:00pm on the Saturday before until 5:00pm on Mother’s Day.
If the mother’s birthday or 9 May in each year should fall on a day when the children would normally live with the father then the mother will have contact with the children for not less than two hours if the day falls on a day when the children are required to attend school and for not less than four hours if the day falls on a day when the children are not required to attend school.
In the event that the father is required to be away for reasons of employment then the father may arrange for the children’s grandfather Paul Feetam to care for the children.
Each parent must give the other parent reasonable notice of any medical specialist, speech therapist or physiotherapist appointment affecting any of the children in sufficient time to allow that parent to attend if he or she should wish to do so.
Each parent must advise the other parent of any illness or injury to any child requiring treatment at a hospital or by a medical practitioner within a reasonable time.
The parties are to do all things and complete all documents necessary to enroll the child T J F at the C P S within seven (7) days.
The parties are to do all things and complete all documents necessary to enroll the child V J F at the C P S at such time as she is required to commence her primary schooling.
Neither parent is to withdraw any child from school or enroll any child in another school without the consent of the other parent or the leave of the Court.
The parties are to do all things and sign all documents necessary to authorize the Principal of any school attended by any of the children to forward to each parent on a regular basis copies of all school reports, bulletins, newsletters, invitations to school functions, information about school photographs and all other documents normally forwarded by the school to parents of children attending that school.
Each parent must do all things reasonably necessary to return to the other parent all items of clothing provided by the other parent at any time when the children return to the other parent after having been living with the first-named parent.
The parties are restrained from allowing any child to remain in licensed premises after 8:00pm in the evening and in any event are restrained from allowing any of the children to be in any part of licensed premises except in an area where children are permitted to be.
The mother is restrained from permitting A J to either remain overnight in her home or use any physical discipline on any of the children.
All other applications are dismissed and the matter is removed from the list of cases awaiting finalization.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 2121 of 2005
| A T G |
Applicant
And
| L C F |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of three children that they should live with her and the father should have reasonable contact as agreed between the parties. The father opposes that order and seeks an order that the children should live with him. He also proposes that the mother should have reasonable contact.
Background
There are three children of the relationship between the parties. There are twin boys called A C F and T J F, they were born on 9th May 2000. There is also a little girl called V J F; she was born on Christmas Day 2002.
The current situation is that T is living with the father and A and V are living with the mother. This circumstance arose after an incident that had occurred after the parties had separated. The circumstances of the incident in which the child A suffered injuries remain unclear. The matter was reported to the police who informed the mother that the matter would be reported by the police to the Department of Community Services.
As it turns out neither the police nor the Department of Community Services took any further action in respect of the matter. The brief facts so far as they are relevant are that the mother and the children had arrived home in the mother's car, the mother had got out of the car and had gone to go inside, and she had travelled a relatively short distance when the car moved forward and the child A became trapped under the car. As a result, the little boy suffered serious burns and required hospitalisation and subsequent treatment at the Children's Hospital at Westmead.
He has not fully recovered from his injuries at this stage. Whilst he is well enough to commence school, which he did only a week ago, he is still required to wear special clothing in the form of a pressure bandage. The mother has described to the Court as it being like a T-shirt except that it has one long sleeve. A has the need to have surfoplane cream rubbed into his scaring on a regular basis and the mother gave evidence that she does that after he has a bath or a shower every day. The father gave evidence that he too is conscious of the need for A's skin to be dealt with in this way and he gave evidence that he rubs the cream in on the affected area twice per day.
Not surprisingly the circumstances of A's accident and the need for the mother to spend time in S to be with the child brought a great deal of pressure on both of the separated parents. The mother eventually asked the father if he would assume the temporary care of the little girl V until, in her view, things got back on an even keel.
The father was reluctant to take V. The reason that he gave at the time was that he and his father, Mr P F, lived together at their rented premises in B and due to differences with the neighbours he considered that there would be adverse comments by the neighbours relating to a little girl living with two adult men.
I would comment at this stage that this has proved to be an unnecessary concern. It has never been part of the mother's case that the father or the paternal grandfather were at all unsuitable people to have the care of the parties' daughter and the evidence given in the proceedings before me over the past two days has certainly not raised any concerns about the suitability of either of these gentlemen in looking after this little girl.
In any event, the father took that view at the time, a view that he subsequently conceded was probably unnecessary and suggested that he should look after T, the mother agreed. The circumstances of that are disputed between the parties. The father's view is that this was an open-ended arrangement because the mother was not able to cope with the three young children at the time. The mother's view that it was definitely a temporary arrangement until A was not only out of hospital, but his treatment had reached the stage where he could lead a relatively normal life and that once the need for this temporary expedient had departed, the child would then return to her care.
Whatever the agreement between the parties, if there was an agreement, the situation has remained that T has continued to live with his father and paternal grandfather since that time. There has been a considerable amount of contact exercised on both sides and at times the father has given evidence that he has assisted the mother by looking after one or both of the other children at times when the mother had to do other things.
The mother commenced proceedings in the Local Court at W seeking orders that all three children should reside with her and that the children should have reasonable contact with the father as agreed between them. She also sought orders that both parents should share the responsibility for making decisions about the long-term care, welfare and development of the children and each parent should have the sole responsibility for making decisions about the children's day to day care, welfare and development when the children were in the care of that parent.
Contact has continued and the contact arrangements have taken place on the basis that the child T has spent time with his mother, brother and sister and when the father has had contact with A and V the child T has been with him, so that essentially the three children have been with the one parent.
The matters remain in dispute and there are certain administrative difficulties in exercising contact between the parties. The parties live at B and C which are about 20 minutes apart by car. The difficulties are that the father does not currently have a driver's licence. That driver's licence has been suspended as a result of his inability to pay fines imposed for certain motoring offences. He has applied to make arrangements to pay those fines by instalments but at this stage the arrangement has not commenced. He does have a motor vehicle available for the occasions when he is able to lawfully take to the road. His father has a driver's licence.
The mother has a driver's licence but has an elderly and somewhat unreliable car. That car has been off the road on more than one occasion but on one occasion at least it actually caught fire. Fortunately that fire was extinguished without major damage and the car is at least roadworthy.
Neither party has a great deal of funds. The mother receives a benefit. The father has some employment as a bricklayer but certainly not full time employment and receives benefit from Centrelink as a result.
The father claims that the mother is, to say the least, not a good housekeeper and that the conditions in which she keeps her home involve a great deal of untidiness and the condition in which she keeps the car is no better. He has described rubbish being up to the seats in the mother's car. The father has produced evidence by way of affidavit from his father, Mr P F, about the degree of untidiness, to say the least, in the mother's house and also from R R. R R was a friend of the father's and had visited the mother's home on one or more occasions. As a result of Ms R's evidence it would not be surprising if she were no longer welcome in the mother's home. Her descriptions of the degree of untidiness of the mother's home, or at least those which were found to be held to be admissible, were that it was an extremely untidy home.
The father's case also is that the children, or at least the two children who reside with the mother, are not always clean or well dressed and, in fact, the father estimates that items of clothing which he had provided such as socks have disappeared and never returned. The father has provided shoes for the boys and the mother concedes that that has been done. The father does not, on the mother's evidence, pay any child support although there is a child support assessment in place but payments seem not to have been collected by the Child Support Agency.
The father is also critical of the mother's unpunctuality and there is some basis for that. Indeed, on at least one occasion, although not today, the mother was somewhat late for Court and he says that she has been regularly late on other occasions. The father also says that he is the one who places a greater reliance on the need for proper arrangements to be made for medical examinations and he has arranged speech therapy for T, which T required because of a stutter that he appeared to have developed. The mother, he says, has not made those arrangements so the father arranged the speech therapy. The child attended on three occasions and has been given exercises to do. The mother sought to attend one of the appointments but was unable to make arrangements in time.
The father is critical of the mother's ability to take the child, A in particular, to a general practitioner to obtain a referral to a dermatologist and, indeed, there was a delay of several weeks in this happening but the evidence now is that the child has an appointment to see a dermatologist called Dr D at K on 5th April. The father gave evidence to the effect that he had telephoned Dr D's surgery and found out that there is an appointment available on 18th April but I am not satisfied that that is persuasive evidence of any particular delay on the part of the mother. There could be many reasons why the appointment arranged by the mother was only a relatively short time before the appointment the father said it was possible to get.
The father's criticisms therefore relate not to the love that the mother has for the children and, indeed, it is not in dispute that each parent loves these children, but the father says that the mother does not have a great degree of parenting ability. The spirit may be willing but the flesh appears to be weak.
The mother, whilst not directly critical of the father's parenting ability or parenting desires, has been somewhat critical of the circumstances in which T as lived whilst staying with the father. The father lives with his father, Mr P F, who had previously been addicted to heroin but is currently on a methadone program. The mother deposed in her affidavit to a syringe being sighted. She was not sure whether that was a used syringe or not but was concerned about the children's welfare. Mr P F suffers from hepatitis C, occasioned not on the evidence before me from drug abuse but from an infection obtained from a tattooist's needle when he was considerably younger.
The mother is also of the view that the children should be together, particularly due to the fact that the boys are single egg twins and she considers it inappropriate that there should be any lengthy separation between them.
She considers it inappropriate that the children should attend separate schools. There was, on the father's evidence, an agreement between the parties that neither boy would start school this year until the Court had made arrangements, or made a decision about with whom the children would live. The mother denies that there was such an agreement and took the step of enrolling A at the C P S so that he could commence with all other children on the first day at school. She believed that it was more appropriate for A to commence school immediately when the other children did, which was a time for settling in and making friends, rather than start later and be at some degree of disadvantage. The father, on finding out that the mother had made that arrangement then enrolled T at the school nearest to him. So, the situation at this stage is that the boys have both commenced school but at different schools.
The child, V, attends preschool two days a week, Tuesdays and Fridays. The father has given evidence that notwithstanding his inability to drive a motor car on the road that he will make arrangements, at times with the assistance of his father, to get V to preschool on time. His arrangements for transporting the children anywhere must necessarily involve travelling by public transport. At times this is cumbersome. It can be a bus trip but some of the father's travel arrangements involve bus, train and bus.
The contact changeover when the children are returned to the care of the mother takes place at 8:30am on a Monday morning at the T R S.
The mother says that the boys should both attend school at C which is very near to where she lives and indeed, it is a 30 second walk. So, it would be her view that she could walk the boys to school, which she says she does with A, and then on the Tuesday and the Friday she can take V to preschool. And then in the afternoon she can collect V from preschool and be available to pick up the two boys from school at 3 o'clock and walk them back to her home.
The father has also raised concerns about the relationship between the mother and a man called A J, known as AJ. The mother's evidence is that whilst there was a relationship of sorts between them for a couple of months that relationship, in that form at least, came to an end in December last year and that whilst she may see Mr J socially on one or two occasions during the week he does not visit the house or remain in the house. The father was concerned that the children had complained of having to share a bed with Mr J. The father was concerned of complaints of physical chastisement by Mr J of the children and, in fact, there had arisen one occasion where the father became annoyed on hearing in the background, whilst on a telephone conversation with the mother, the man Mr J swearing at the boy, A. The father takes a very dim view of people swearing at the children. He says that he does not and he does not see why other people should do so.
The father has two dogs. The mother is concerned that one of the dogs at least lives in the house and that this is a source of fleas. She is concerned that the child V suffers from flea bites. She already gets mosquito bites to which she is allergic and these bring up hives. The father says that neither dog lives in the house and the dogs are outside on runners.
The father has raised concerns about the mother visiting licensed premises, particularly a hotel where, according to the cross-examination, she seems to have seen the father's solicitor on regular occasions. The father has raised concerns that the mother has taken the children to dinner at the hotel and has remained there, in his view, relatively late and that the children should not be at a hotel, if at all, certainly late into the evening. The mother concedes that from time to time she has taken the children to a bistro part of the hotel where it is allowable for children to be present with adults to have a meal but denies that she has kept them there late.
The father says that he is more strict as far as the children going to bed. 8 o'clock is usually the bed time, at times extended to 8:30pm. The mother is more likely to have a bed time for the children of about 8:30pm.
The parents have some degree of communication between them and have come to arrangements with school holiday contact where they virtually share the holidays on a week about basis and the mother and the paternal grandfather appear to have a reasonable relationship, notwithstanding the mother's concerns about the grandfather's hepatitis C and the need for him to remain on a methadone program.
Family Report
The Family Report, prepared pursuant to s.62G of the Family Law Act, was available for the proceedings. The Family Report was prepared by Mr L D. The mother, the father, the maternal grandmother and the two boys were interviewed by the counsellor. The counsellor observed the parents, the two boys and V together. He took the view that as V is only 3 years of age that it was not appropriate to interview her. The counsellor interviewed the paternal grandfather, Mr P F, on the telephone and also spoke by telephone to Ms K B, V's preschool teacher. The counsellor was not required for cross-examination. As such there is no challenge to matters stated in the Family Report.
The counsellor at page six, paragraph 26 of the Report, reports the father as stating that he would supervise the children better, he has a cleaner house and would provide them with good clothes and shoes, that he was more responsible and could do a better job. The father was critical of the mother to the counsellor saying that the mother was not able to cope with all three children at the one time. The father denied that he intended to remove himself to Q. He told the counsellor that he wishes to continue to live in the local area and obtain work that would allow him to also be a parent to his children. He reiterated that here in evidence before me.
The counsellor reported the mother as saying that the parties' relationship had been good, that domestic violence was not an issue, that the relationship had deteriorated due to what she regarded as the father's controlling behaviour. She was firm in her view that she had asked the father to help out at the time with the children and had just refused to return T which was what prompted her application to, initially, the Local Court and then eventually the Local Court transferred the proceedings to this Court.
The mother told the counsellor that she was the children's mother, she'd been the children's primary caregiver all their lives, she had access to resources for them, that she lived only a short distance from the local primary school. She denied that she had been contacted by the Department of Community Services and she denied having a filthy and unkempt house. She denied being in a relationship with the person AJ and denied that she abused alcohol. She attributed her lack of punctuality to her lack of transportation. She told the counsellor that she planned to continue living in the same area and to eventually obtain bar work in a pub or a club.
She was prepared to acknowledge that the father was a reasonably good father but complains that he denigrated her in front of the children and she criticised the father's home environment as not being very hygienic.
The counsellor interviewed the maternal grandmother who commented that she was not a very maternal person and often did not see the grandchildren for a few months at a time. She had not been able to help out financially, was of the view that her daughter loved the children and suggested there should be a shared care arrangement.
The paternal grandfather was interviewed over the telephone. By comparison he said that he had been involved with the children since they were born. He asserted that he assists his son in caring for the children and transporting for them. He spoke highly of his son's ability as a father. He spoke about Ms G in the report as being a fairly good mum and whilst he was of the opinion that his son would do a better job of looking after the children he also took the view that the children should be together and they should have time with each parent. He took the view which seems to be supported by the report that the mother did not have a great deal of support from her own mother. He also expressed some concern about the children being at a hotel with the mother.
The counsellor observed the children in the childcare room at the Court interacting with each parent. The parents were reported at paragraph 34 of the Report of speaking to the children appropriately and the counsellor commented that the children all appear to have a close and loving relationship with each parent. The counsellor went on to say that the children related well together and T and A certainly enjoyed playing together. The counsellor noted that V appeared to have a closer emotional bond with her mother and with her father. When tired and looking for comfort it was to her mother, that she turned around, than the father.
The counsellor expressed some concern about the relationship with Mr J and about the mother taking the children to the hotel for a meal and expressed some concern about the mother's punctuality. The preschool teacher had spoken to her on the phone and said the mother's punctuality had improved.
The counsellor identified a problem with shared residence and educational requirements as the ability of each parent to transport the children to school. The counsellor commented that this was especially relevant because the twins began primary school this year. In my view, that was a correct focus by the counsellor.
The counsellor was somewhat critical of the father's insensitivity in having the two boys separated. He was not of the view that that was in the best interests of the children and was somewhat critical of the father for not being able to realise that. He was certainly of the view that the mother's relationship with AJ and the children being at the hotel in the evening should be restricted. He recommended a parenting after separation course. He recommended a requirement to communicate relevant information regarding health and education issues to the other and suggested an interim order with a report being updated in six to eight months time.
I had the opportunity to observe and listen to both mother and father in the witness box. It seems to me from my observation of them both that each one of them has strengths and weaknesses, and whilst each was at times to voice criticisms of the other neither one wished to launch such vociferous criticisms of the other party as to ruin the communication that they had.
I heard brief evidence from R R about the state of the mother's house. I'm not satisfied that her evidence took the matter very far.
I had the ability to hear from the children's paternal grandfather, Mr P F. He, in oral evidence, was perhaps a more impressive witness than his affidavit would lead one to believe. He was described by the father's solicitor, Mr Riviere, as an honest and forthright witness and indeed his evidence met that description. He described self esteem problems as a result of developing hepatitis C as a result of tattoos when he was 16, although he was unaware for some years that that is what the problem was. He described feeling dirty and resorting to the use of heroin and becoming addicted to it.
He described how the birth of his grandsons had a major effect on his life and he determined that his grandchildren should not have a drug addict for a grandfather. He described going into the Methadone Program and how his consumption of Methadone had gradually decreased to the present level, which is about 4 mils. He described his aim to eventually free himself from a dependence on Methadone and indicated his belief that he should be able to do that in about six months. He gave the impression that he was determined to rid himself of an addiction to any form of drug and I formed a favourable impression of his evidence in that regard.
He indicated that he then proposed to deal with the question of hepatitis C, but in the meantime he was very conscious of the need to avoid infection of other people by means of the transfer of any blood or blood products, and he described the steps that he took. Again, I accepted his evidence on that basis.
One thing that was very clear was the depth of the grandfather's love for the children. I formed the impression that he was, as some grandparents are, devoted to his grandchildren; he saw the grandchildren as an important part of his life and he wished to be an important part of their lives. He admitted spoiling them, even giving them Coca Cola which he conceded that the mother did not like very much because of the caffeine in it, but I formed the impression of a loving grandfather who wanted nothing but the best for his grandchildren and would be a person who would place their welfare and their happiness very high on his agenda.
I was impressed by the grandfather's evidence. He has certainly had a hard life and he conceded that he had done some foolish things, but I am satisfied that he will play and wishes to play a beneficial role in the life of the children.
It is noteworthy that despite the mother's concerns about Methadone and hepatitis C the mother also in her affidavit spoke highly of the positive relationship that the children have with the grandfather, how they loved and adored him, how they referred to him as "poppy". The grandfather, on hearing that, appeared to be gratified that he was described that way by the mother and I am satisfied that that is his view as well.
The mother's mother did not give evidence and it was put to me by the father's solicitor that the Court should form an adverse view of that. I am not prepared to take that view. There was evidence obtained from the mother's mother in the family report and there is no challenge to that. I regard that as an accurate assessment of the path that the grandmother plays.
The rule in Jones v Dunkel (1958-1959) 101 CLR 298 is that where a party does not give evidence or call or lead some evidence that that party would be expected to call the inference that the Court could draw is that that evidence would not further the parties' case. The inference that I draw that the evidence of the grandmother's statements that she is not a very maternal person and does not see the grandchildren sometimes for several months at a time, as the evidence that I should rely on the mother's case, will rest on that.
What I have to consider is what is in the best interests of the children. It is also a situation where there is a strong recommendation that a form of shared care take place, and indeed it is noteworthy that both the paternal grandmother and the paternal grandfather are reported as expressing that view.
I have had the advantage of reading an unreported decision by Ryan FM, which is cited as A v V [2002] FMCAfam 273, which contains a useful list of factors that a Court should examine in cases where shared care is recommended or to be considered. It is not intended to be an exclusive list but the principles set out in A v V, which with respect I find persuasive, are these:
(a)The parties' capacity to communicate on matters relevant to the child's welfare;
(b)The physical proximity of the two households; Are the homes sufficiently proximate that the child can maintain friendships in both homes?
(c)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;
(d)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;
(e)Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise;
(f)Whether they share similar ambitions to the child, for example, religious adherence, cultural identify and extra curricular activities;
(g)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;
(h)Whether or not the parties respect the other party as a parent;
(i)The child's wishes and the factors that influence those wishes;
(j)Where the siblings live;
(k)The child's age.
Her Honour in that case went on to say:
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 pivotal role of s.65E nor s.68F (2). Each factor fits comfortably within s.68F (2).
I have said previously and I say now, that whilst this decision is not binding on me it is persuasive. I note that in an earlier decision in the High Court of Australia in Gronow v Gronow (1979) FLC 90-716, in the Judgment of Murphy J at page 78,856, his Honour said:
In some cases, despite some switching back and forth, joint custody might be a desirable solution where the parents live near one another so that schooling and other behaviour patterns are not disrupted. The theory is that although some adaptation on all hands is necessary the child does not suffer deprivation of one parent, which is only slightly mitigated by access, which itself may lead to artificial relationships and problems worse than those of joint custody.
Whilst in that case the High Court found that joint custody or shared residence was impracticable because one party lived in N and the other lived in S there was also a significant degree of hostility between them.
Not all of those negative factors appear in the case before me.
The parents have demonstrated some ability to communicate, notwithstanding their criticisms of each other. The paternal grandfather clearly expresses some positive views about the mother and respects her position as the mother. When being asked about whether or not the mother had borrowed money from him his words were:
Yes, but only small amounts and she'd always paid the money back.
He regarded that as a very minor issue and was not prepared to criticise the mother in any way, which indicates in my view a positive attitude by the grandfather to the mother, notwithstanding that not unnaturally he was highly supportive of his son's case.
Principles to be followed
Courts exercising jurisdiction under the Family Law Act in dealing with cases involving the residence of a child must be mindful of the object of Part VII of the Act and the principles underlying that object. The object and the principles are set out in s.60B.
The relevant principles in this case are that except when it would be contrary to the child's best interests:
(a)children have the right to know and be cared for by both their parents; and
(b)children have a right of contact on a regular basis with both their parents and other significant people.
There is a list of relevant matters which assists the Court in determining what are the best interests of the child. The best interests of the child is still the paramount consideration, as set out in s.65E.
The best interests of the children
Subsection 68F(2)(b) requires the Court to consider the nature of the relationship of the child with each parent and with other persons.
It is clear that the children have a positive and loving relationship with each parent. It is clear also that they have a positive and loving relationship with their grandfather.
The Court must consider the likely effect of any changes in the child's circumstances, including the effect of any separation from either of the children's parents or any other child or any other person with whom he or she has been living.
It is a matter of some concern that T and A, being twin siblings, have been living separately, by what the mother at least says as a unilateral decision by the father. In my view it is clearly in the children's interests that they should be together.
A deprivation of the company of either parent would to my mind be unhelpful for any of the children. If the children were to be deprived of the company of their paternal grandfather they would be without the influence of a significant and loving figure in their lives. In my mind any orders to be made must ensure that each parent has the ability to care for and contribute to the children's welfare and the father of course is assisted by his father, the grandfather, who has a major role to play.
Courts have previously considered the value of grandparents' contributions in such cases as Bright and Bright vBright and Mackley (1995) FLC 92-570. In my view this is a case where contact with the grandfather on a regular basis will be beneficial for these children.
Clearly, the Court must consider the capacity of each parent and of other people to provide for the needs of the children, including their emotional and intellectual needs. Notwithstanding the criticisms by each parent of the other of the parent's ability to provide for the children's physical needs I am satisfied that that is outweighed by the ability of each one of them to contribute to the children's intellectual and emotional needs.
The mother in particular has shown a concern about the boys being together, or the children being together for that matter, and her views about the importance of A at least starting school with the other children reflected an insight into the needs of a child and the important stage of starting school, which does her credit. Holding the children back until the question of residence had been decided was an understandable decision by the father, but the mother's decision to commence A at least at school, so he could start with the other children, indicates a mature consideration of his needs.
The mother as I have said is seen to have a closer emotional bond with the child, V, that may be to do with the child's comparatively young age, just as much as the fact that she is a little girl, but it is an indicator of the mother's loving nature. That is not to say that the father does not have a loving nature because I am satisfied on the all of the evidence that he does.
Clearly, the Court must consider the children's maturity, sex and background. We have got two little boys who are twins, which I think is important. There is much in the way of knowledge and various studies of twins conducted to show that they have a particular closeness to their siblings and a greater need to be together, perhaps than other children. The younger child, V, also has a need to be with both her brothers. There are no, to my mind, grounds for the children being separated.
There are no issues of domestic violence or harm or abuse that need to be considered. The mother has shown a positive view of the responsibility of parenthood notwithstanding her apparent lack of housekeeping skills, certainly in considering the children's education and the need to be together, and I note the counsellor's criticism of the father in that regard.
The practicality and expense of contact between parents and children is affected, not so much by the difference in distance because the parents do not live that far apart, but from the need to rely on public transport or on the mother doing the driving because of the father's inability to obtain a driver's licence. He was subjected to an extensive degree of cross-examination by the mother's solicitor, Mr Nash on that point, and part of that cross-examination related to his spending money on doing up a car that he was not in a position to drive until he got his driver's licence back.
The fact that the father has been waiting to receive an application form from the State Debt Recovery Office so that he can make an application to pay the outstanding traffic fines by instalments indicates a relative lack of initiative, and it is difficult to see when at this stage the father is going to pay off his fines and is going to be in a position to obtain a driver's licence. Certainly he can rely on his father, Mr P F, for some of the time, but otherwise the burden falls on the mother.
The mother does not have a great degree of support, especially financially, and whilst she has been criticised for not taking the child, A, to see a general practitioner who operates nearby in C, but goes to another practice where it was necessary to wait for her mother to be able to transport her, I thought it was noteworthy that the practice where the mother does go to is one that bulk bills. I am not aware of the situation in respect of the other practice, but it is easy to see why someone in the position of the mother who was relying on benefits would wish to remain with a medical practice where, (1) all the children's medical documents were, and (2) that it bulk bills. Despite what is said in some quarters I am satisfied that bulk billing to Medicare is a factor that helps provide medical assistance to people who do not have a great deal of income.
The Court must consider 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 children. There is no presumption that further proceedings are necessarily undesirable, they may be unavoidable. It has been held that it is not in the interests of a child that there should be repeated applications to vary custody orders, as they used to be called, see MacEnearney v MacEnearney (1980) FLC
90-866. Against that the Full Court of the Family Court held in Archboldv Archbold (1984) FLC 91-538 that finality cannot always be achieved and should not be a decisive consideration where the risk factors outweigh the benefits to the parties and the children on a final decision.
Conclusions
The Court must also consider any other relevant fact or circumstance.
I am not of the view that there are any other relevant facts or circumstances. In my view the Family Report is helpful and the coverage of the evidence by the parties' solicitors has been extremely helpful.
The result that emerges clearly to me is that despite the criticisms of the parents each has a considerable amount to offer these children. The father's driving licence problems and his allegedly controlling manner are matters of some concern, but there is no doubt that the father loves the children and indeed the dry sense of humour that he displayed in giving evidence, even at a time when he was no doubt under some degree of pressure, is a trait which one would only hope that he could pass on to all three of his children. I was particularly taken with his witty description of the dog "Gator", whom he believed must have part koala in him because of the father's suggestion that the dog may be able to climb trees to escape. Humour is actually a very valuable thing to have, and a father who can pass on a sense of humour to his children does them a great favour.
The father has the support of his own father, the children's paternal grandfather, Mr P F. Mr P F has had his problems but impressed me favourably as a person who would do his very best to provide love and support for these children as a loving grandfather. It is significant that the mother recognises Mr F's ability to contribute in this way, which also says something for her maturity and her insight into the children's needs.
Certainly the mother has been criticised as not being amongst the tidiest of housekeepers. It is unlikely, even on my observation of her, that she would be regarded as one of the most punctual women in Australia. As the same time she is a young woman who started having children quite young. She does not have a great deal of income and it does not appear that the support that she is able to receive from her mother is as great at the support that the father is able to receive from his father.
The relationship with A J caused the counsellor some concern, not without reason in my view, and it appears to me to be preferable that that relationship has in fact died down if not come to an end. I too am concerned that the mother should consider seriously the fact that whilst the nearby hotel where she will go to have a meal from time to time with the children may be convenient it is inappropriate to have children out too late. They need to be supervised if they are anywhere near licensed premises, and particularly with both boys starting school this year, they are going to get tired, maybe in the excitement of the first few days at school, that has not been noticeable, but I think there is plenty of evidence to show that as the first term develops young children in particular get tireder and tireder and do need their sleep on a school night.
The parents each have much to offer. The father's anger at someone else using offensive language to his children speaks positively of his commitment to them and his love for them.
Whilst in my view it would be preferable for the children to spend a bit more time with their mother than with their father, for administrative reasons, this is a situation where I am satisfied that the commitment that each parent has to the children and the parents' ability to communicate, even if sometimes through gritted teeth, is a situation where in my view a shared residence arrangement can work. It cannot be a week about arrangement during school term, but the father's employment which I gather through no fault of his own is somewhat sporadic, does indicate that he is able to have the children and all three children spend time with him for longer than just the traditional weekend during school term time.
I am also of the view that during school holiday time the children would do well to spend more than just the traditional half of the school holidays with the father. In particular, I recall part of the evidence of Mr P F, his desire to get off Methadone completely is his target for 2006, because as he said he wants to be able to do something in more than a one-week block of time, and I have no doubt that the father would wish to do something like that.
There is no evidence to show that this father is not capable of looking after the children for more than a week at a time. The evidence would point the other way, in fact, particularly if he had some assistance from his father. My view is that there should be more time that the father should have, particularly block time. I am conscious of the fact that even with a comparatively short distance between the parents' homes the father's difficulties in transportation and the mother's financial difficulties and perhaps one of Australia's less reliable motor cars, means that the amount of travelling and contact changeovers should be reduced. The parents are better off having the children for a longer period of time and it is less disruptive, especially for young children just starting school, to spend several days at least with one parent.
It is for this reason that whilst I have considered the one day during the week additional time suggested by the mother's solicitors, that the transport difficulties and the disruption to the children going back and forth has indicated a need for more of a block period of contact.
As to the mother's less than perfect punctuality, it does seem to me that if there is a school at C as close as a 30 seconds walk from the mother's home, that it would be difficult not to get the children to school by five to nine.
It is for those reasons that I propose to make the following rather detailed orders.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 9 February 2006
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