GBR & MSL - [2003] FMCAfam 614

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GBR & MSL

[2003] FMCAfam 614

FAMILY LAW – Children – parenting orders – residence and contact – competing applications – children living with the father – whether children’s best interests would be served by a change of residence – both parents have formed new relationships – half-siblings with each parent – one child with limited lung capacity after surgery – whether parents should smoke in the presence of the child – contact by father conditional on his not smoking in the presence of the child.

Family Law Act 1975 (Cth), ss.60B; 64B; 65E; 68F; 68K

H v W (1995) 18 Fam LR 788; FLC 92-598
R and R: Children’s wishes (2000) 25 Fam LR 712; FLC 93-000
Joannou (1985) FLC 91-642

Applicant:

B R G

Respondent:

S L M

File No:

NCM 970 of 2003

Delivered on:

12 December 2003

Delivered at:

Coffs Harbour

Hearing dates:

10 & 11 December 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Loomes

Solicitors for the Applicant:

Filewood Carty

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:

Jennings & Kneipp

ORDERS

The orders made by the Local Court of New South Wales at C H on
15 October 2002 are discharged;
The children, B Z M-G, born 21 February 1998, and D J M-G, born
20 April 1999, are to live with the respondent mother with effect from Saturday,
20 December 2003;
The parties are to have joint responsibility for making decisions about the long term care, welfare and development of the children;
The parties are to have the responsibility for the day to day care, welfare and development of the children whenever the children are in their care;
The applicant father is to have contact with the children:
(a)for the second half of the Queensland Christmas/January school holiday period that commences in 2003 and each year ending in an odd number, and for the first half of the Queensland school holiday period that commences in 2004 and each year ending in an even number;
(b)for the second half of the Queensland autumn and spring school holiday periods in odd-numbered years, and the first half of the autumn and spring school holiday periods in even-numbered years;
(c)for the whole of the Queensland winter school holiday period of each year;
(d)for the first weekend of each month during school term time commencing at 5 pm on the Friday and ending at 4 pm on the Sunday
(e)by telephone each Tuesday and Thursday evening before 7 pm, on Christmas Day, on each of the children's birthdays and on the father's birthday and on the birthday of the father's partner, L G;
(f)at such other times as the parties shall agree;
For the purpose of exercising contact the father and the mother are to meet at an agreed place at the town of G I for contact changeover;
Contact between the father and the child, D, is conditional upon his neither smoking any cigarette or other tobacco product in the presence of the child, D, nor permitting any other person to do so;
For the purpose of Order 5:
(a)contact for the first half of the school holidays will commence at 10 am on the Saturday immediately after the last day of school term and will conclude at 4 pm on the middle Saturday of the school holidays;
(b)contact for the second half of the school holiday swill commence at 4 pm on the middle Saturday of the school holidays and will conclude at 4 pm on the day before the children are required to attend school at the start of the school term;
(c)contact for the winter school holiday period will commence at
10 am on the Saturday immediately after the last day of the school term and will conclude at 4 pm on the day before the children are required to attend school at the start of the school term;
(d)a day at the beginning of the school term designated as a pupil free day by the school attended by either of the children is not a day when the children are required to attend school;
If either of the children suffers any illness of injury requiring treatment by a medical practitioner or treatment at a hospital the parent in whose care the child or children are at the time must notify the other parent by telephone as soon as reasonably possible;
The mother must notify the father of any school or preschool in which either of the children is enrolled within two days of the children being enrolled;
The mother must authorise the principal of any school attended by either of the children to provide to the father on a regular basis copies of all school reports, bulletins, newsletters, information about school photographs and all other information normally provided by the school to parents of children attending that school. For this purpose the parents must provide to the principal of the school a copy of these orders within one month from the date of these orders;
The father is permitted to attend any school function concerning the children to which parents are normally invited to attend;
The mother must enrol the child, D, in a suitable preschool or early childhood centre during the year 2004;
The father and the mother are to consult with each other about the attendance of the child, D, at an early childhood centre for an assessment and are to consult with each other about enrolling D in a suitable preschool during 2004;
The mother is to restrain from smoking any cigarette or other tobacco product in the presence of the child, D, or permitting any third party to do so;
Both parents are granted liberty to apply in respect of any parenting issue on 14 days notice;
I require a transcript of my reasons for decision;
The application will be removed from the pending cases list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

NCM 970 of 2003

B R G

Applicant

And

S L M

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of two boys aged 5 years and

10 months and 4 years and 8 months, respectively. He seeks orders that they should live with him and that the mother should have contact with them for half of the school holidays. The father lives with his de facto wife at B in the C H area of New South Wales.
The mother opposes that application. In her response she asks for an order that the children should live with her. She asks for orders that the father should have contact with the boys for half of each of the Queensland school holidays and for one weekend each month. The mother lives with her de facto husband at W in southern Queensland.

Background

The father lives with L G with whom he was in a relationship before he met the mother. He has one son by his relationship with

Ms G, a boy called D, who was born on 25 February 1995. The father and Ms G separated when D was a baby. D remained living with Ms G and the father exercised infrequent contact during the early years of the child's life.
The father met the mother several months after he and Ms G had separated. The mother was still only in her mid teens when they first met. There is a difference of over seven years in the ages of the father and the mother.
The father was born on 22 November 1973 and the mother was born on 4 January 1981. They started living together in 1977. Although they met in S in New South Wales they travelled to Queensland and lived in W where the mother's family live.
The mother and father have two children who are the subject of these proceedings. Their eldest son, B, was born on 21 February 1998, and the youngest son, D, was born on 20 April 1999. The parties were married on 12 May 2001 and separated on 1 November 2001. They are now divorced.
The relationship between the parties had its difficulties. The mother suffered from postnatal depression after B was born. Their second son, D, was diagnosed with a spot on his lung and required major surgery when only 11 weeks old. As a result he lost about 80 per cent of one lung.
The parties moved to I in Queensland after D was born in order to be close to hospitals and medical specialists in B. They lived there for about two years.
The father obtained lucrative work in I but the parties argued about the mother's management of the family finances. The mother says that the father was violent to her on occasions and the father has made some admissions, including pushing the mother against the wall when she was pregnant.
The mother and father moved back to W. The mother formed a relationship with another man, P S, with whom she now lives in a permanent relationship.
The father confronted her about the affair with Mr S and she left the relationship with the father on 1 November 2001. Later that month the father moved back to the C H area where he resumed his relationship with L G. He took the children with him.
The mother would travel down to C H to exercise contact with the children. The children would also spend a week at a time in the school holidays with her in W. In September 2002 the mother did not return the children from contact. As a result the father commenced these proceedings in the Local Court of New South Wales at C H by means of an application filed on 10 October 2002.
On 15 October 2002 the Local Court made some interim orders on an ex parte basis. These orders were:
(1) That the children, B Z M-G, born 21 February 1998, and D J M-G, born 20 April 1999, should reside with the applicant father;
(2) that this matter be dealt with ex parte, or alternatively, that leave to serve at short notice to be given.
I note the orders were actually made ex parte:
(3) that pursuant to s 67Q a Recovery Order issue requiring the return of the children to the applicant;
(4) a Recovery Order is to lie in office until 12 noon on

17 October 2002;
(5) matter adjourned to 22 October 2002;
(6) liberty to restore to the list.
The children were returned to the father. Contact has continued since then on the basis of one week in each school holiday period in the W area and one day a month in the C H area.
The mother has continued to live with Mr S. They now have a child of their own, a baby girl called A, who was born on 6 July 2003. Mr S is also the father of five other daughters from two previous relationships. He has regular contact with three of his daughters.

Evidence

The father gave evidence by affidavit and was cross-examined by the mother's barrister, Mr Graham. Ms L G and the father's mother, Mrs S G, also gave evidence. The father also relied on a brief affidavit from his father, G G. Mr G G was not available to give evidence.
The mother gave evidence by affidavit and was cross-examined by

Mr Loomes, of counsel, for the father. The mother also relied on an affidavit by her de facto, P S. Mr S was not available to give oral evidence.
On 31 March 2003 I ordered that a family report should be prepared. Ms J S, a Regulation 8 welfare officer, prepared this report which is dated 12 June 2003. Unfortunately the Court was not able to hear the matter at C H circuit sittings during the week of 18 August, so Federal Magistrate Donald marked the matter not reached and adjourned it to this sittings.
Mr Loomes and Mr Graham both cross-examined Ms S about the contents of her report. Ms S gave her evidence by telephone.
In the family report the welfare officer expressed concern about the fact that the children seemed to have no one permanent home but seemed rather to move regularly between the residence of the father's partner, L G, and Ms G's parents' home. She expressed concerns about the fact that the children seemed not to have a particularly close relationship with their half brother, D, who teased them. The welfare officer noticed an incident of this and was concerned that Ms G did nothing to stop it. In her oral evidence later Ms G seemed unaware of the incident.
It was clear from the family report that Ms G had taken on a significant amount of the parenting role in respect of these children. The children called her mum and called their own mother mummy.
The welfare officer was concerned that the child, D, had had to undergo surgery at an early age that resulted in a substantial part of one lung being removed. The father, the mother and the mother's partner, Mr P S, all smoke moderately to heavily. The welfare officer expressed the opinion that the parties should not smoke in the presence of the child.
In addition, the welfare officer was concerned that the child, D, appeared young for his age and was not attending preschool or day care. The father had removed him. The welfare officer was of the firm view that D would be too young to commence school in 2004. She was of the view that the father should take D to an early childhood centre for an assessment.
The welfare officer spoke to the boys and noted that the older boy, B, was expressing a strong wish to live with his mother. The younger child, D, was less close to the mother but identified more with the father and Ms G. The recommendation in the family report was that the children should reside with the mother.

The relevant law in this matter

The parenting orders are subject to the provisions of s.65E of the Family Law Act 1975 which provides:
That in determining the outcome the best interests of the child is the paramount consideration.
Subject to the consideration that the best interests of the child is paramount s.60B sets out the principles that underlie the objects of

Pt VII of the Act. Those four principles are:
(a)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
(c)parents share duties and responsibilities covering the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children.
Section 68F(2) sets out the matters that the Court must consider when attempting to determine what is in the children's best interests. Not all of them will be relevant but the Court must consider them all.
Looking at s.68F(2)(a), the children's wishes and their maturity or level of understanding. I note that the child, B, is aged 5 years and

10 months, whilst D is aged 4 years and 8 months. The welfare officer expresses the view that D is young for his age. B expressed a strong wish to live with his mother, although he liked living with his father and Ms G. D told the welfare officer that he liked being with his mother and also with his father and Ms G.
Paragraph (b) of s.68F(2), the nature of the children's relationships with their parents and other persons. Each child appears to have a good relationship with both parents and with Ms G and with Mr S. Mr S did not give evidence and it appears that he is not as closely involved with the children.
The children have a half brother, D, with whom they have resided for the last two years. The relationship between D and the two boys does not appear to be particularly close. D teases the younger two boys, and it is clear to the welfare officer that the boys do not like that. D had of course been living solely with his mother until B and D came to live with him, and of course he is now one of three.
The children also have a half sister, A, who was only born this year. They have not had a great deal to do with her in that they have only seen when they have gone on contact with their mother.
Subsection 68F(2)(c) looks at the likely effect of any change in the children's circumstances. If the father's application is successful and the children will remain living with him and they will continue to have contact with their mother. I am concerned however that the amount of contact that the mother has been able to have with the children has not been as great as it should have been and it appears that contact has largely been dictated by the father. It is difficult to see why contact was kept to a period of only about one week at a time during the school holidays, especially during the Christmas/January school holidays which are more like five to six weeks in length.
I am of the view that if the children were to remain living with the father that the mother would need to have an increased amount of contact with the children and that it would be in the best interests of the children for this to happen.
If there had been an interim application to vary the contact arrangements or for interim contact orders prior to this hearing I would take the firm view that it is likely that a Court would have ordered an increase in contact.
If however the mother's application is successful the effect on the children would be significant. The mother proposes that the children live in W where she resides with Mr S. She proposes that the children would be educated in the Queensland education system and she would wish to have D attend a preschool up in that area.
The children would be residing not only with the mother but with

Mr S and they would have more regular contact with their half sister, A, but they would have less contact with their half brother, D. They would have regular contact with Mr S's daughters who are their stepsisters. I am not of the view that there is a close relationship with those children at this stage as the children of this relationship would have had very little to do with them.
On the mother's evidence the children would have more regular contact with their cousins, being the children of her sister who lives in W. I am of the view that as the children have a good relationship with their father and with Ms G, who has largely adopted a mothering role, there would need to be some adjustment to cover that fact as the children would not be unlikely to miss the regular contact with their father and Ms G. D of course has still been living at home so his contact with his father and Ms G has been very frequent.
I look at s.68F(2)(d), the practical difficulties and expense of a child having contact with a parent. The father resides in the C H area at B, the mother resides at W. The evidence is that it is about four and a half hours driving distance. This has a significant effect on the existing contact arrangements, not only because of the time but also because of the expense. Neither of the parties nor their partners are flush with funds and as the mother's partner, Mr S, had been retrenched from his employment the contact arrangements needed to be changed because of the financial expense of the mother and Mr S travelling down from W to C H.
The contact arrangements for the school holidays appeared to be that the father would take the children up to W but for the contact during school term time for the most part, but on the evidence before not every time, the mother and Mr S would travel down to C H.
What would happen is that they would actually be given accommodation in the residence of Ms G and they would come down in the afternoon, stay overnight at the residence and then have day time contact in the C H area, return the children and then drive up to W.
Whether the children reside in W or reside in C H it is quite clear to me that there needs to be a greater sharing of the contact travel and I am of the view that the orders sought by the mother in her response, that contact changeover be at a place in G I, is a matter that has some considerable weight.
I look at s.68F(2)(e), the capacity of each parent to provide for the needs of the children. The father appears to have as I said a close relationship with each of his sons, although a lot of the day-to-day parenting is conducted by Ms G. Ms G has taken on a mother role in respect of the children and indeed the children call her mum. She was noted by the counsellor in the family report as falling easily and naturally into that mother role. There is some suggestion that she may favour her natural son, D, over her two step sons and the counsellor commented that Ms G allowed D to tease the younger children, which they did not like, but Ms G seemed to be unaware of. Nevertheless Ms G has performed a valuable role in acting as a parent for the children.

There is certainly a concern that neither the father nor Ms G have shown a awareness of the effect of the father smoking on the children, particularly D. Ms G smokes very rarely and indeed drinks alcohol very rarely.
It is a matter of concern that the child, D, appears to be young for his age and that the father withdrew the child from preschool because he said he was not getting enough attention. He has not been enrolled in another preschool and it is surprising that the father proposes to enrol the child in Kindergarten at the S Primary School, when the welfare officer, who from her CV has experience as a school counsellor over a number of years, was firmly of the view that D is not only young for his age but too young as far as maturity is concerned to attend school. He would be one of the youngest in the class and this is a matter that does cause some concern.
The mother for her part was somewhat concerned that D, as she said, had been deprived of going to preschool and it appears that she has a reasonable appreciation of the educational needs of children.
As far as the children's emotional needs are concerned each parent seems to have the ability to deal with that, although again the relatively parsimonious contact afforded by the father to the mother, would tend to suggest that the father's understanding of the need to relate to their own mother as well as to Ms G is not as strong as it should be.
From a financial point of view neither parent is flush with funds. The mother is occupying a home duties role, especially as she has a young baby to care for. Her partner, Mr S, was retrenched but has now obtained a contract for a mail run which keeps him employed some

15 to 20 hours per week and certainly brings money into the household.
The father has been unemployed and Ms G has adopted a home duties role and the parties have been in receipt of Centrelink benefits.
I look at s.68F(2)(g), the need to protect the children from physical or psychological harm caused by being subjected or exposed to abuse, ill treatment, violence or other behaviour. I propose to deal with this in conjunction with matters under paragraph (i) family violence; paragraph (j) family violence orders; and I am also mindful of the effect of s.68K of the Family Law Act. It says:
The Court must ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
There is no Apprehended Violence Order in force affecting the parties. There is evidence that there has been family violence in the past and indeed Mr Graham, of counsel, was critical of the father for a couple of admissions of assaults on the mother during the relationship, including one when the mother was pregnant and she was pushed against the wall.
The father did not disclose this violence, either to his mother or to

Ms G, and they were, when they gave evidence, unaware that there had been these incidents of violence.
I am asked to draw some conclusions about this failure to admit violence which would be detrimental to the father but I am not satisfied that I should. The father admitted that there had been violence in the past and he was certainly not proud of his behaviour. It seems to me to be most natural that a person being ashamed of their violence in the past would be reluctant to volunteer that information, either to their mother or to their current partner. It seems to me a perfectly natural reaction that the father would want to put that behind him.
There is no evidence upon which I can make any finding that the children are currently at risk of any family violence and I am of the view that whilst there was violence in the past it erose out of the unhappy relationship between the father and the mother, and I am not of the view that the violence issues should determine this case.
I look at the attitude to the children, to the responsibilities of parenthood demonstrated by each of the children's parents as set out in paragraph 8 of sub-s.68F(2). Each parent has a strong commitment to the children. Each parent wants the children to live with that parent.

I have expressed concerns about the smoking and the educational issues otherwise, but each parent otherwise seems to be a committed parent and seems to have some understanding at least of the needs of the children to have a relationship with the other parent.
Paragraph (k) of sub-s.68F(2) contains what appears to me always to be a pious hope. The Court must look at 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. It is difficult to say what if any order in this contentious matter, which is admitted by counsel to be finely balanced, would be least likely to lead to the institution of further proceedings. Similarly, there are no other facts or circumstances that I believe to be relevant.
The children have lived with their father and Ms G and have lived away from their mother for over two years. During that time the mother has exercised contact but says that she has not had as much contact as she would have wished. It appears that most of the contact, apart from school holiday contact, has occurred in the C H area at the direction of the father.
The mother has had the children stay with her in W during the school holidays but for no longer than a week at a time. It seems regrettable that the mother has not exercised contact for a longer period than a week during the school holidays, even in the Christmas/January school holidays which last to up to six weeks. In my view the distance between the residences of the parties and the travelling time of four and a half hours each way would call for longer periods of block contact during the school holidays.
The mother has been criticised for not commencing her own proceedings for residence earlier than this. It is relevant that the father is the applicant in these proceedings and the mother is the respondent. The matter commenced in October 2002 when the mother unwisely failed to return the children from contact. Mr Graham puts to the Court that the mother is an unsophisticated person who gave evidence of having been to several solicitors before being able to file any material in Court. She said that she had to go to three solicitors before she found a nice one, referring to her present solicitor, Ms Turner.
The mother also indicated in evidence that she was not in a position immediately after the separation to do anything from a Court proceeding point of view, that she did not wish to bring an application until she had something to offer the children. It took a while for her life to settle down.
The uncertain history of the father's living arrangements is a cause for concern. It is the evidence of the father and Ms G that they maintain two residences and lived apart for most of the week so that they would not lose their Centrelink benefits.
Ms G's evidence was most unsatisfactory on this point. She said that she and the father had only recently started living together at the townhouse that she had moved in to in L B D. Initially she told the Court that the father had only commenced living with her on a full-time basis in October. She told the Court that she had been living in a townhouse for only a few weeks before the father moved in.
In answer to a question from the Bench as to why her affidavit, sworn on 15 August 2003, gave the townhouse as her address she changed the story and eventually said that she had moved in earlier, perhaps during the month of July.
The mother's evidence was that the father and Ms G had been living in that townhouse since about July 2002. In her affidavit sworn on

27 March and filed on 31 March 2003 she described an incident at contact changeover that she said happened in September 2002. She said in the affidavit that the parties were living at the address in L B D at the time of swearing the affidavit and in September 2002.
The mother's affidavit corroborates her oral evidence on this point as it is quite clearly dated with the Court's date stamp showing that it was filed on 27 March 2003. I accept the mother's evidence as reliable on that point as it is corroborated. It follows that the evidence of

Ms G must be incorrect. Her demeanour in the witness box was that of a person who was uncertain and confused. I found her to be a most unreliable witness and I am satisfied that she was not telling the truth in the witness box.
I am of the view that the father and Ms G have in fact been living at the residence in L B D for a lot longer than they are prepared to tell the Court, and the inference arises that they were attempting to keep their joint living arrangements a secret from Centrelink. Both the father and Ms G were receiving benefits during that time.
The actions of the father in removing the child, D, from preschool because as the father said, he was not getting enough attention, are hard to understand. He was not enrolled in another preschool but has been allowed to stay and play at home. Despite this the father proposes to start him at school in 2004, even though he is young for his age and has had little experience in socialising with other children. The mother said in her evidence that the child had been deprived at preschool.
I am concerned that neither parent seems to have an awareness of the harmful effect of passive smoking so far as it may affect D who has lost 80 per cent of the capacity of one lung. It is not for this Court to dictate matters of lifestyle to parties except where that lifestyle impinges on the welfare of a child. It is for this reason that I propose that the parties should not smoke in D's presence or permit anyone else to do so.
It is significant to my mind that the mother was in her teens when both children were born. She was indeed a child herself when B was born. It is clear that the mother has matured and moved on. The counsellor speaks highly of the mother's growth in this regard.
The mother may well be an unsophisticated person but she is a determined one. It was significant that she acknowledged that the separation from D in particular had affected the ability to bond with him and she became emotional about that.
It appears however that the mother has formed a stable relationship with Mr S, even though it would appear from the mother's evidence and from the family report that Mr S's parenting role as far as these children are concerned, will be essentially subsidiary to that of the mother. At the same time the father relies greatly on Ms G who, despite my criticisms of her evidence, has clearly played a major parenting role in respect of these two children.
The circumstances in which the children were taken away from their mother by the father are circumstances which have been open to criticism and indeed the mother gave evidence that the two weeks she did not know where the children were and ran up a large mobile phone bill trying to find them.
The concern of course is that the mother has not had as much block contact as would have been desirable, and yet certainly it appears that the child, B, in particular identifies strongly with the mother.
The Court must take the wishes of children into consideration, although the wishes of children will have less weight according to their relative lack of maturity, and these children are still young children. Nevertheless, I am joined by the Full Court in the decision of H v W (1995) FLC, by the decision of the Full Court in R v R Children's Wishes (2000) and R v R Children's Wishes (2002), to show that I have taken children's wishes into account.
The weight to be given to those wishes is not great however because of their relative youth, and in D's case is immaturity for his age. Nevertheless, even at the ages that they are their wishes are not irrelevant and the Full Court's decision in Joannou, which dates from I think 1988 from memory, reminds me that the children's wishes are not irrelevant, even at that young age.
The matter that particularly concerns me is that despite the fact the children have been residing with the father for a period of two years there has been an air of temporary residence about it, that the father and Ms G on their own account have had a somewhat disjointed relationship, not because the relationship between the two of them is not strong, but because for reasons relating to social security that they have chosen to live in separate residences for part of the time in order to protect the Centrelink payments.
The counsellor in the family report was critical of that arrangement. Whilst I am of the belief that the father and Ms G spent more time living with each other than they were prepared to let on, there is an air of temporary arrangements about the children's living which does not lead to stability.
The mother has formed a firm relationship with Mr S. She is in an environment where she is happy in W where she has extended family. She has shown a determination for one so young to get her life in order and to settle down and she has gained maturity.

Conclusions

Whilst this is a close run decision, as both counsel conceded, I have had the opportunity of seeing both parents in the witness box and seeing Ms G in the witness box and I have been able to form an impression as to their commitment and their ability and their desire to act in the best interests of the children.
After a great deal of reflection I am of the view that the children should reside with their mother, that there should be a generous amount of contact to the father.
It is for these reasons that I make the orders in the attached schedule.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 19 February 2004