H and D
[2003] FMCAfam 290
•18 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & D | [2003] FMCAfam 290 |
| FAMILY LAW – Child residence – primary care giver – contact – 17 month old toddler – relevance of breast feeding on demand – name change to reflect identity – parents not married – different surnames. PRACTICE AND PROCEDURE – Procedural fairness – whether party may call witnesses without affidavits – whether in interest of justice – relevance of evidence – oral application granted to change name of child – dispense with Rules of Court – parties permitted to rely on all affidavits at trial despite contrary interim order – conduct of trial to be determined by presiding Federal Magistrate – whether final or interim hearing. |
Family Law Act 1975, ss.68F; 112AD(1)(a), Division 13A
Forck v Thomas (1993) FLC 92-372
K & M [2003] FMCAfam 70
| Applicant Father: | A R H |
| Respondent Mother: | V D D |
| File No: | CAM3260 of 2002 |
| Delivered on: | 18 July 2003 |
| Delivered at: | Canberra |
| Hearing Date: | 18 July 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant Father: | In person |
| Counsel for the Respondent Mother: | Ms Tonkin |
| Solicitors for the Respondent Mother: | Campbell & Co |
ORDERS
That the Respondent Mother be granted leave to file an amended minutes of orders sought.
That the amended minutes of orders of the Respondent Mother stand as the orders sought in the Respondent Mother's response.
That the Applicant Father be granted leave to amend the Application filed 24 January 2003 by deleting the words, “The interim orders sought in this matter are as follows.”
That the parties be granted leave to rely upon all affidavits filed in these proceedings.
That the Contravention Application filed 9 January 2003 be adjourned to a date to be fixed.
Pursuant to section 62F(2) of the Family Law Act 1975 the parties confer with a Counsellor nominated by the Director of Court Counselling of this Registry of the Court to endeavour to resolve the differences between them in relation to the Contravention Application and implementation of the contact orders.
That the Respondent Mother be granted leave to make oral application for change of the child's name from L J D to L J D-H.
That so much of the rules be dispensed with to prevent the Application from being heard and determined this day.
It is declared that it is in the best interests of the child L J D to hereinafter be known as L J D-H.
The parties are directed to forthwith make application to the Registrar of Birth, Deaths and Marriages of the Australian Capital Territory to register the child’s name in accordance with Order 9 hereof.
Upon application the Registrar of Birth, Deaths and Marriages in the Australian Capital Territory be requested to change the Registrar of Birth, Deaths and Marriages to reflect the child’s name as L J D-H.
That the child L J D-H born 25 February 2002 shall reside with the Respondent Mother who shall have sole responsibility for his day-to-day care, welfare and development.
The Applicant Father shall have contact with the child as follows:
(a)Until the child reaches two years of age:
(i)each Tuesday from 4.30 pm to 6.30 pm;
(ii)each Thursday from 4.30 pm to 6.30 pm; and
(iii)each alternate Saturday commencing 26 July 2003 from 9.00 am to midday.
(b)From the age of two to three years:
(i)each Tuesday from 4.30 pm to 6.30 pm;
(ii)each Thursday from 4.30 pm to 6.30 pm; and
(iii)each alternate Saturday from 10.00 am to 5.00 pm.
(c)From the age of three to five, subject to the satisfactory completion of a parenting course by the Applicant Father, as follows:
(i)each Tuesday from 4.30 pm to 6.30 pm;
(ii)each Thursday from 4.30 pm to 6.30 pm; and
(iii)each alternate weekend from Saturday 5.00 pm until Sunday 5.00 pm.
(d)Upon the child reaching 5 years of age he shall have contact with the Applicant Father as follows:
(i)every alternate weekend from 9.00 am Saturday until 4.00 pm Sunday;
(ii)every Wednesday after school until 7.00 pm; and
(iii)half of all school holidays, being the second half of the school holidays, commencing the end of term in the year 2007.
In the event that the Respondent Mother wishes to take holidays with the child she shall notify the Applicant Father 10 days prior to taking the holiday.
The Applicant Father shall be permitted to make up such contact time missed as a consequence of the Respondent Mother’s holiday at the time to be agreed by the parties in writing.
In the event that the Applicant Father is unable to exercise contact due to genuine commitments the Applicant Father shall provide the Respondent Mother with 36 hours notice of his inability to attend contact and the Applicant Father shall be permitted to make up contact time missed at a time to be agreed by the parties in writing.
That, on the child’s birthday, the Respondent Mother shall have the child available for contact with the Applicant Father for a period no less than three hours at times as agreed. Should there be no agreement such period will be from 3.30 pm until 6.30 pm unless the Applicant Father is having contact with the child that day.
On Christmas Day the parent with whom the child is living shall make the child available for contact with the other parent from 9.00 am until 12.00 noon on Christmas Day.
Upon the child reaching 5 years of age, on Father’s Day and Mother’s Day the parent with whom the child is not living shall have the child available for contact with the relevant parent from 6.00 pm the Saturday before Mother’s Day or Father’s Day as the case may be until 4.00 pm the following day.
For the purposes of collection and delivering in relation to contact, the Applicant Father shall collect the child from the McDonalds Dickson, or a place nominated by the Respondent Mother, at the commencement of each contact period and return the child to McDonalds Dickson, or such place as nominated by the Respondent Mother, at the conclusion of such contact period.
That both parents shall have properly fitted child/baby restraints in the car they are driving when transporting the child.
That the Respondent Mother shall advise the Applicant Father of all significant medical ailments suffered by the child.
That both the parties shall advise the other of their current address and contact landline phone numbers and any change of telephone number or address in writing 5 days of such change.
That should the Applicant Father be unable to exercise his contact with the child, he shall notify the Respondent Mother in writing 36 hours before cancelling said contact.
Neither party is permitted to denigrate the other, to or in the presence of the child nor permit another person to do so.
Each of the parties is restrained from being on the premises of the other except in the case of an emergency or otherwise by agreement between the parties.
AND THE COURT NOTES:
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM3260 of 2002
| A R H |
Applicant Father
And
| V D D |
Respondent Mother
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application by A R H (the Applicant Father) in relation to a child of his relationship with V D D (the Respondent Mother). The child who is currently named L J D (the child) was born on 25 February 2002.
By way of background the Applicant Father and the Respondent Mother commenced cohabitation on 16 November 2000 according to the Applicant Father and 10 December 2000 according to the Respondent Mother. The Applicant Father was born on 22 October 1968 and the Respondent Mother born on 19 June 1957. The parties separated on 10 October 2002.
The matters before the Court have created a degree of confusion in terms of the nature of the applications. It is appropriate that I refer to the applications filed by the Applicant Father and in particular note that in the chronology of applications and orders that ultimately the position of the parties varied somewhat at the hearing of this application. In any event it is clear that originally there had been an application filed on 24 October 2002 by the Applicant Father. Orders were made on
28 October 2002, and although I do not have a formal copy of the order, those orders clearly refer to adjourning the matter to
11 November 2002 and other orders were made of an interim nature, that is that the child reside with the Respondent Mother and certain orders were made in relation to contact.
When the matter came before the Court on 11 November 2002 the Court on that occasion made orders by consent. It should be noted on that occasion that both parties were represented. By consent the interim orders that had been made on 28 October 2002 were discharged. It was ordered that the child, then referred to incorrectly in the order as L J D H live with the Respondent Mother and she be responsible for his day to day care, welfare and development. There were further orders made in relation to contact with the Applicant Father every Tuesday, Wednesday and Thursday from 3.30 pm until 5.30 pm, and every alternate Saturday commencing 23 November 2002 from 9 am until 11 am.
Orders were made in relation to the collection and delivery of the child and further orders were made that both parents shall have properly fitted child or baby restraints in the car they are driving. The Court made other orders to which I do not need to refer but did significantly make the following notes:
a)that both parents be responsible for the child's long term care, welfare and development;
b)that the Respondent Mother and Applicant Father should do all things to amend the child's birth certificate so that L’s surname is ‘D H.’
There was a further notation made in relation to personal belongings to which I need not refer. On 9 January 2003 the Applicant Father filed
a contravention application in the Court which alleged contraventions of orders made on 11 November 2002. The form used for that application regrettably makes reference to what I regard as the incorrect provision of the Family Law Act namely s.112AD(1)(a) and instead should have made reference to Division 13A. In any event that contravention application had been fixed for first hearing on 20 January 2003.On 20 January 2003 further orders were made by the Court, those orders involved an order that the Applicant Father file and serve any application to vary the current contact orders and any affidavits in support by 24 January 2003. The orders further provided for the Respondent Mother to file and serve a response and affidavit that she relied upon by close of business on 31 January 2003. The matter then was otherwise adjourned to 3 February 2003. By an application filed on 24 January 2003 the Applicant Father sought certain orders which he described in that application as interim orders in relation to the child. Essentially the orders then sought required a discharge of orders made on 11 November 2002, further sought orders in relation to there being a shared arrangement for the child and otherwise set out in some detail orders sought in relation to contact to which I shall refer later in this judgment.
After that application was filed the matter again came back before the Court on 3 February 2003. On that occasion an amendment was made to the orders of 11 November 2002 and the amendment related to the contact and the collection and delivery of the child for the purpose of contact. Further orders were made that the parties maintain a communication book in relation to the child. The matter was then listed for final hearing and otherwise orders were made that the parties may not rely on any affidavits filed to date in the final hearing. The Applicant Father was then ordered to file and serve any affidavits upon which he intended to rely by 26 April 2003 and the Respondent Mother likewise by 9 May 2003 and then the Applicant Father was given an opportunity to serve affidavits in reply. Each party was then ordered to file and serve chronologies and minutes of orders sought if those orders were different to those in the application or response. It is not necessary for me to otherwise refer to the orders made that day.
When the matter came before the Court the Respondent Mother relied upon a response and the response had been filed on 31 January 2003. It became evident that the orders sought by the Respondent Mother which had been filed on 16 May 2003 needed to be altered and
I permitted the Respondent Mother to file in Court what I would describe as amended orders sought by the Respondent Mother. As
a consequence of that process the issue arose, or both as a consequence and in relation to that process, as to whether or not the Court was indeed dealing with final orders. I took the view that as the matter had been fixed for final hearing and certain orders made in relation to the filing and serving of affidavits and other material that this was indeed a final hearing. I note that there has been no Family Report ordered which may have been of assistance to the Court, but nevertheless the material that has been filed to which I shall refer presently is clearly material of a kind that would normally be filed in a final hearing.
When the matter was raised between the parties it was clear that although the Applicant Father had wished to review or revise any arrangements put in place now and had deliberately referred to the concept of ‘interim orders’, it was equally clear that for the purpose of this hearing I should proceed to consider at the very least the response of the Respondent Mother as seeking final orders. I am satisfied that the matter before me is a hearing in relation to final orders. In order to regularise the proceedings I made orders as follows:
(1)That the Respondent Mother be granted leave to file an amended minutes of orders;
(2)That the amended minutes of orders of the Respondent Mother stand as the orders sought in the Respondent Mother's response;
(3)That the Applicant Father be granted leave to amend the application filed 24 January 2003 by deleting the words, "The interim orders sought in this matter are as follows."
(4)That the parties be granted leave to rely upon all affidavits filed in these proceedings.
The last of those orders was made in circumstances where the Applicant Father expressed a degree of dissatisfaction and indeed a grievance that the affidavit that he had previously filed and served in relation to not simply the substantive issue but even in relation to the alleged contravention may contain matters that are relevant to these proceedings. Because the Applicant Father is unrepresented I took the view that it would be in the interests of procedural fairness and natural justice to permit him to rely upon all affidavits filed and hence the order was made. Likewise as a matter of fairness to the Respondent Mother I decided to permit her to rely upon all previous affidavits.
I made that order notwithstanding the fact that the Court on a previous occasion had made orders that the parties not be so permitted to rely upon earlier affidavits.
I am conscious of the fact that a previous order was made however as an interim order and that the Court making that order was not the Court conducting the trial. In my view the conduct of a trial is a matter solely for the discretion of the presiding Federal Magistrate and in the circumstances presented to me, I have no hesitation in permitting the parties to rely upon the affidavits as I have indicated.
There was a further preliminary issue raised in this matter and that related to the issue of whether or not the Court should deal with the contravention application. It became clear to the Court at the commencement of these proceedings that the alleged contraventions relate to a period of time some many months ago, though it is noted that they occurred within a short period of time after separation. In any event it seemed to me in the circumstances that whilst a contravention application would normally have some priority, I was satisfied in the context of the present application that it was more appropriate that I should deal with the contravention application, if it needs to be dealt with, on a later occasion, rather than be distracted by that application when the matter commenced yesterday.
I was concerned that the parties having only separated in October 2002 may be unduly distracted by a ‘quasi criminal’ process which necessarily is involved when dealing with a contravention application. In the circumstances it is my view that in relation to the contravention application that the matter can be adequately dealt with at least initially by an order which I will make in this matter, that the parties attend counselling. In the event that counselling does not resolve that issue then I will leave open the opportunity for the Applicant Father in that application to return to Court if he feels it is essential to do so and to pursue that application for contravention.
Hence in relation to the application for contravention filed 9 January 2003 the only order that I would make in the current circumstances is that application be adjourned to a date to be fixed. I will otherwise make an order in relation to counselling in due course.
Another preliminary issue which arose to which I have referred involved the child's name. Although in the application and indeed in orders of this Court reference has been made to the child as having the name L J H and in the orders to which I have already referred, reference is made to the child L D and in another order reference has been made to the child as L J D H, I accept for the present purposes having noted the birth certificate the child's correct name as recorded is currently L J D. Hence an issue arose as to whether the Court ought to consider the name as an issue in relation to the substantive matters before the Court or as a discrete issue.
As the case unfolded I decided at the end after hearing submissions that I would invite the parties to consider permitting the Court to deal with the issue of the child's name and to do so as part of these proceedings. Both parties agreed that this was an appropriate course. In the circumstances I therefore made orders that the Respondent Mother be granted leave to make oral application for change of the child's name from L J D to L J D-H. I further ordered that so much of the rules be dispensed with to prevent the application from being heard and determined this day. I will deal with the issue of the child's name in due course but regard that as a matter properly before this Court.
In general the application by the Applicant Father although couched in terms of an order which might otherwise be described as a shared arrangement in relation to the child, effectively without referring to each and every one of the orders sought, in my view would require the child to reside with the Applicant Father on numerous evenings throughout a substantial period of each week during contact periods. For example, part of the order seeks that every Tuesday and Wednesday evening from 5.00 pm till 9.00 am, the following mornings alternate weekends from 5.00 pm Friday evening through to 9.00 am Monday morning, and then alternate Thursday evenings from 5.00 pm to 9.00 am the following Monday morning to coincide with the week leading up to a contact week, or the following Tuesday if the weekend coincides with a long weekend. I do not need to recite the other orders sought but it would be evident from what it is sought that that is a substantial period of time and a period of time which I interpret as being effectively more than a shared arrangement, but rather a substantial arrangement where the child would live with the Applicant Father certainly in the evenings.
However, there is a certain logic to the proposal advanced for and on behalf of the Applicant Father and that he is going to be employed and works full-time, whereas the Respondent Mother is not in full-time employment. As I understand it the Applicant Father advises that regime or routine on the basis of each parties capacity to care for the child during hours when they are able to do so, which in the Applicant Father's case means after work hours and in the Respondent Mother 's case means during work hours. So the logic and intent of the arrangement with a request for those orders is understood.
There were other preliminary issues which were raised during the course of this hearing which I shall deal with briefly. During the course of evidence both parties gave oral evidence, were cross-examined and relied upon affidavit material to which I shall refer presently. At the end of the Applicant Father's evidence he indicated a desire to call other witnesses. None of the witnesses proposed to be called had deposed to any evidence in the form of an affidavit, indeed there were no other affidavits from other persons filed on behalf of the Applicant Father.
The witnesses he proposed calling related to events in part claimed to have occurred on 4 July this year and related to the attendance of the child upon medical treatment following an incident that day which allegedly caused a great deal of distress to the Applicant Father. He alleged that there had been some difficulty created by the Respondent Mother in refusing to communicate the need for medical attention of the child to the Applicant Father. Having heard evidence in relation to that issue I decided that it would not be appropriate nor would it be fair to permit the Applicant Father to call evidence from witnesses concerning that issue. I did so because the issue itself did not seem to me to be an issue upon which I would place great weight in the ultimate resolution of these applications.
The witness proposed to be called was a Mr T M. Other witnesses proposed to be called included the Applicant's father, the Applicant's partner and the Respondent Mother's former husband. It was said that evidence should be adduced from these witnesses without the benefit of an affidavit and that they were to give evidence which was relevant in relation to issues before this Court, including the Respondent Mother's capacity to be a caregiver, questions relating to the Respondent Mother's credit, questions allegedly relating to the Respondent Mother's past conduct in relation to two children of the former marriage that she had to her former husband for a period of 21 years.
I again ruled that the Applicant Father should not be permitted to adduce that evidence particularly in the absence of there being any affidavit material of any of the witnesses proposed to be called. In proceedings before this Court where orders are made in relation to affidavit evidence and even after making due allowance for the fact that the Applicant Father is unrepresented, it is my firm belief that the permission to adduce further evidence on the day of the trial should only be granted where it is clear that it is in the interest of justice to do so, and that other orders can be made which would otherwise accommodate what would clearly be undue prejudice to the other side.
In the present case having heard an outline of the proposed evidence of each of the witnesses sought to be introduced at this late stage,
I concluded during the course of the hearing that it was not appropriate for the Court to receive that evidence. I confirm that conclusion in these reasons for judgment.
Much if not all of the proposed evidence from those witnesses in my view falls into a category of evidence which is being pursued almost relentlessly in this case by the Applicant Father. It relates to assertions by him as to the character and conduct of the Respondent Mother in a way which in my view does not relate specifically to the issue which I need to consider, that is a capacity to be a caregiver for the child. The pursuit of such matters is perfectly understandable given the very recent nature of the separation and given also the very short duration of the relationship between these parties. It is not at all surprising to this Court that the parties in this case are unable to successfully communicate, agree but otherwise unable to conduct themselves in a way which would indicate that they have an ability to achieve cooperation on any meaningful level in relation to both their own relationship or the care of the child. That finding becomes significant when I deal with the issue of a shared arrangement further in this judgment. For those reasons I was prepared to permit the matter to proceed on the evidence currently before the Court.
The Applicant Father throughout the Court hearing has complained from time to time he had not had an opportunity to present certain material or argue certain points. During the course of a number of exchanges I have indicated to the Applicant Father and reiterate in this judgment that I totally reject that suggestion. The Applicant Father although unrepresented has clearly indicated that he has read and digested all the material before this Court. He has pursued cross-examination and given evidence and submitted affidavit material, at least part of which is clearly relevant to the issues before this Court. He has taken objections to evidence and has otherwise conducted himself in a manner where clearly he understands his rights and duties even though he may not understand distinctions between evidence and submissions and may not understand the evidentiary requirements of a Court of law.
I make due allowance for the fact that he is unrepresented and I make due allowance for the fact that on occasions he has sought to pursue matters which I have refused to allow him to pursue. I do not in any way draw an adverse inference against him for seeking to pursue those issues. It is a common difficulty for unrepresented Applicants and demonstrates yet again that it is much more preferable for all parties in litigation before the Court, particularly in Family Law matters that they be adequately and properly represented. To deny them representation yet again demonstrates that proceedings are prolonged, proceedings are commenced and continued and often times proceedings fail to resolve simply in my view because parties are not adequately represented. In this case there could be no complaint against the Applicant Father in relation to his conduct, he is doing what most unrepresented litigants do pursuing a case that he feels strongly about in what he perceives to be the interests of the child.
The Applicant Father in his evidence relied upon a number of affidavits which have been filed in the Court namely affidavits sworn 23 October 2002, 24 October 2002, 14 January 2003, 27 February 2003 and 15 May 2003. The affidavits were received under cover of a list of objections from the Respondent Mother. Those objections relate to issues such as relevance that the deponent was expressing opinion evidence, otherwise making submissions and otherwise was being argumentative in those affidavits. So much is clear from many of the paragraphs in the affidavit material and to the extent that those affidavits rely upon material which expressed an opinion, or otherwise expresses submissions I would disregard them. It is not necessary for me to formally rule upon the admissibility of each and every one of the paragraphs which have been the subject to objection.
By way of background it is clear that the Applicant Father does not have children by any other relationship, that the child is the Applicant Father’s first child and in the circumstances it is clear that he has a present arrangement where he occupies a three bedroom dwelling with his current partner, Joanna Prentice. His partner has three children of a previous relationship, a girl aged six, a boy aged eight and another girl aged ten. They all reside in the three bedroom dwelling. One bedroom is shared by the three children of his partner's former relationship on those occasions when those children are residing with the Applicant's current partner. One room of the current three bedroom dwelling has been allocated for the child, the other bedroom shared by the Applicant Father and his current partner. The Applicant Father is currently employed as a full-time manager of a graphic design business.
During the course of the evidence an issue that arose in this case, perhaps not surprisingly given the age of the child, is the issue of the relevance of breast feeding. Through the course of his evidence and in the course of submissions the Applicant Father referred to this issue. He referred to the issue in relation to it being seen by him as being used by the Respondent Mother as a ‘weapon’ to resist long-term contact and certainly overnight contact that the Applicant Father may wish to have with the child. In my view he has demonstrated little or no insight into the reality of breast feeding, both as a matter which is required for the comfort of the child but for the social benefit of the child and indeed medical benefit of the child.
A lack of insight demonstrated by the Applicant Father in relation to that issue was evident during the course of submissions this day where he submitted that no medical report had been tendered or relied upon in relation to breast feeding. To even suggest that a medical report for a child this age would be required shows in my view a complete lack of understanding of the very fundamental commonsense approach that one would normally adopt to the social, physical, mental and medical desirability of children being breast fed at this age. The fact that the child is on demand breast feeding is not a matter which I would regard as detrimental on any basis to the child. It is a relevant factor to take into account and is relevant in relation to the interests of the child and significant to the issue of the happiness and contentment of the Respondent Mother. The Applicant Father's evidence in relation to that issue as indicated demonstrates a complete lack of insight.
The Applicant Father otherwise gave evidence about matters which
I regard and find as being legitimate and valid concerns. He gave evidence in relation to what he alleged to be the failure to use proper car restraints for the child. That matter has already been the subject of interim orders. He gave further evidence of genuine concern about the failure of the Respondent Mother to properly communicate with him about the need for the child to have medical treatment and/or incidents which involved harm to the child. He further gave evidence in relation to an issue which he said arose concerning the potential spraying of insecticide in the presence of the child. For present purposes I do not accept that in fact insecticide was sprayed in the presence of the child or was going to be sprayed in the presence of the child or the Respondent Mother. That does not mean that the Applicant Father should not have had a concern, or at the very least have been apprehensive about the possibility of that occurring. It does indicate, however, that he has demonstrated before this Court in my view an undue sensitivity, to some degree animosity, and to a further degree some deeply held suspicion in relation to the conduct of the Respondent Mother. I suspect that with the passage of time beyond the date of separation those fears will not be as strong as they appear now.
A further issue which is of concern during the course of the evidence of the Applicant Father related to his unwillingness to disclose his current address. The matter has now been dealt with and by consent he has disclosed that address. He has further disclosed the address to which he intends moving in the near future. However at one stage during the course of the trial, the Applicant Father had indicated that he could not see any reason why he should disclose his current address to the Respondent Mother. He indicated and reiterated in submissions that he has a fear that there may be some interference with his quiet enjoyment of his current residence with his current partner and children. That fear I am satisfied can be addressed by appropriate restraining orders.
He further indicated that he could not see any basis upon which in any event, it would be necessary for the Respondent Mother to have the current address as the child would be with him and he could deal with matters that arose. At one stage he even suggested that it may be appropriate given he is a current licence holder, for the Respondent Mother to make enquiries through the local police who would be able to locate the Applicant Father. I find that to be an absurd suggestion. It again demonstrates what I have described as being the undue sensitivity and suspicion that the Applicant Father has towards such simple matters as disclosing his current address. I find there is no proper basis for that apprehension. As an issue it is now resolved but as part of the evidence it is a further indicator of a lack of insight in relation to practical, common sense issues which are relevant in the other deliberations which I need to consider in this case.
In short, it is my view that the Applicant Father on some of those issues has misconceived the significance and importance of the issues before this Court. At one stage he stated that the current situation has been brought about “through no fault of my own”. That statement alone demonstrates a lack of insight and understanding. It is not suggested that the Applicant Father has been at fault. Fault is not an issue in this case. The fact that he refers to the issue of fault, which is clearly an irrelevant issue in this instance, again highlights his lack of understanding of the fundamental issues before the Court.
I otherwise accept his evidence however that he has a genuine concern for the care of the child. I further accept and this is not in dispute, that he has a capacity to care for the child and wishes to do so. I further accept that given the age of the child he is properly concerned and anxious to ensure, that the child forms a genuine and close relationship with the Applicant Father and that there be an opportunity for a genuine and long term bonding to occur. All of those matters advanced for or on behalf of the Applicant Father I accept as being appropriate and reasonable.
The Respondent Mother gave evidence and relied upon affidavits namely affidavits sworn 31 January 2003 and 9 May 2003. In addition, she relied upon an affidavit of Dr P G sworn 12 May 2003. Dr G is a medical practitioner who deposed to having 20 years experience and has been the medical practitioner of the Respondent Mother and her family for a period of 13 years. He attaches to his affidavit a medical report dated 9 November 2002. It is not necessary for me to refer in detail to that report save for the following extract:
“From my clinical examination I formed the view that no significant features of post natal depression are present in this patient. I hold no current concerns about her ability to care for her baby.”
Based on the evidence in that report and indeed as the issues unfolded, despite the fact that allegations in affidavit material have been made of post natal depression and alleged instability of the Respondent Mother, I find having heard her evidence, that she represents in a manner consistent with the report of her medical practitioner. I find that, as
I found with the Applicant Father, the Respondent Mother is a person who has the capacity to care for this child.
It is important to note that the Respondent Mother also has two sons of her previous 21-year marriage. One is aged 20 the other aged 17. The Respondent Mother I find since the birth of the child, given evidence in relation to work commitments and the like, and given the evidence in relation to her continuing care, including breastfeeding of the child, has been the primary caregiver.
The children, that is the children of the Respondent Mother's former marriage, and the child all live together in a four-bedroom dwelling. The dispute as to residence is whether I can properly describe the dwelling as a four-bedroom dwelling. Technically, I do not think it can be so described. But it is a dwelling which has been modified to provide accommodation which I am satisfied is appropriate accommodation which would permit a description of there being four rooms available to be used as bedrooms. One room is an attic occupied by one of the children of the Respondent Mother, together with a
22-year-old male friend. The Respondent Mother occupies the main bedroom with en suite and the child, at present, resides in that room in his cot with the Respondent Mother to be fed on demand as required. Another room is vacant and it is anticipated that in time will become the child's room. A further room in the basement of the premises I am satisfied has an en suite and is a room which is currently and may be continually occupied by the other son of the Respondent Mother.
There is no suggestion by the Applicant Father that the Respondent Mother is incapable of caring for the child. To the extent that there has been a suggestion and an issue about parenting courses and the desirability of parenting courses, it is my view that in the short term it is not necessary for either party to attend a parenting course. I will return to that issue presently.
The Respondent Mother in her current circumstances, in my view, as the primary caregiver of the child, has sufficient time and ability to care for the child on a full time basis. She in fact currently resides in premises which I find as suitable, and she is a suitable caregiver.
Ironically, the fact that the Respondent Mother is not in full time employment but rather part time employment Friday afternoons which gives her the greater opportunity to be available as a full time caregiver unlike the Applicant Father who works full time. So much in a sense is conceded by the Applicant Father's somewhat unusual application which as I indicated earlier, provides for significant overnight contact.
Considering the law in this matter, I am bound to consider the appropriate legislation. I am bound to consider s.68F and the matters described in that section of the Family Law Act. Overall however,
I am bound to consider what ultimately would be the issue of the best interests of the child. Those interests must be the paramount consideration. During the course of this hearing I have reiterated that is the concern of the Court and endeavoured to ensure that both parties focus on that issue and that both parties focus on the matters otherwise set out as matters that I must consider under s.68F(2) of the Family Law Act.
In this case, the concept of a shared arrangement for the child in my view is totally inappropriate. A shared arrangement, in my view, can only work and work effectively in the interests of the child if the Court is able to conclude that there is a relationship between the parents of a kind that might reasonably be described as one where they can freely and openly communicate with each other in the interests of the child; where they have demonstrated a degree of maturity in their post separation relationship that would enable them to cooperate on every level in relation to the interests of the child. The conduct of this hearing, the manner in which affidavits have been prepared, the content of the affidavits, and particularly some of the questioning and submissions made by the unrepresented Applicant Father, indicate to me that there is no reasonable prospect in the short term of the parties achieving a level of cooperation and communication which would encourage this Court to make any order for a shared arrangement.
I otherwise apply the principles which have been referred to by counsel for the Respondent Mother in the decision of Nicholson CJ in the matter of Forck v Thomas (1993) FLC 92-372 at page 79,868.
Whilst it is true that both parties have, as I have indicated, a capacity to care for the child and whilst it is true, as I have found, that both have a genuine concern for the welfare and interests of the child, it is my view that in a case of this kind, where the Court is essentially dealing with a 17-month-old child, that it is preferable in circumstances of this kind that the primary caregiver should continue to be the primary caregiver of the child. It is particularly important both in relation to the age of the child, to the arrangements for accommodation to which I have referred by the Respondent Mother, and to the evidence which I accept that it is appropriate and in the interests of the child that the child as far as possible continue breastfeeding on demand without undue disruption.
For those reasons, having looked at the background material, it seems clear to me that the Respondent Mother is the person who is best able to provide and continue to provide primary care for this child and should do so. I otherwise accept and rely upon those factors in
s.62F(2), including the issue of capacity to which I have already referred, the practical difficulty to which I have referred in relation to both accommodation and the breastfeeding issue, and also in that context the effect of separation on the child should that occur for a period overnight or on an extended basis in the near future.
I further accept, as I have indicated earlier, that the breastfeeding of a child, apart from being clearly in the child's interests, also has a role to play in maintaining the happiness and contentment of the Respondent Mother. Ultimately, that happiness and contentment of the Respondent Mother would be a benefit to the child.
For the reasons I have just given, it is my view that it is appropriate in this application that I should make the order in relation to the child as sought by the Respondent Mother, that is, that the child reside with the Respondent Mother.
The issue of contact is one that causes significant concern in matters of this kind. My view is that where there is a child of this age, it is important to maintain a program of regular and frequent contact. The purpose of that regular and frequent contact is to ensure that maximum opportunity is given for there to be proper bonding between the Applicant Father and the child. In the present case, I am satisfied that can be achieved by having a graduated approach to contact which will ultimately result in there being overnight contact in the manner which
I shall describe presently. In my view, the appropriate orders of the Court, for the reasons I have just given shall be orders 13(a) to 13(d), 14, 15, 16, 17, 18, 19 and 20 which appear in the cover sheet hereof.
The child’s name
The remaining issue is the issue of the name of the child. Having granted leave to the Respondent Mother to make application for the change of name, it is appropriate that I deal with that issue.
It is clear that what had occurred on the earlier Court date only resulted in a notation. Regrettably, notations – as I indicated during the course of the trial – do not have full force and effect other than perhaps giving some indication of what may have then been the party's intention. At least at one stage, it was the intention of the parties that they would do all things to amend the child's birth certificate so that the child's surname is ‘D-H. It would appear from the evidence in the affidavit material that the Respondent Mother had endeavoured to comply with that notation. It appears clearly both from the evidence and submissions of both parties that indeed both at one stage had a change of heart in relation to the issue. Initially, the Respondent Mother, having said she would try to facilitate the change of name by presenting the appropriate form to the Applicant Father who refused to sign, then went ahead having altered the form to otherwise eliminate the Applicant Father's name and reference to the Applicant Father on the form. In the course of her evidence, the Respondent Mother indicated that she no longer wished to have the Applicant Father's name registered on the birth certificate.
During the course of the overnight period when this matter was part heard, it was announced and I accept, that the Respondent Mother had altered her view and was prepared to consent to registration in a form consistent with the notation made on those orders of 11 November 2002. It was submitted by the representative of the Respondent Mother that in the circumstances the change of name to reflect the parentage of both parties, given that the parties were not married, was an appropriate name change in the interest of the child so that the child would readily establish by use of his surname, his identity.
The Applicant Father submitted that prior to the child being born, he had an understanding that in the circumstances it was his name that was to be used. Without making a finding in relation to matters raised from the Bar table, I understand that there may well have been in the mind of the Applicant Father a feeling that this was to be the name given to the child. Of course that was the position before the child was born and before separation. It may well have been that the parties intended to marry, that the Respondent Mother intended to take the Applicant Father's name and other future plans may have been discussed. The reality that confronts the Court now is that the parties have separated, they have not married, there are two parents who have different surnames. The current proposal by the Respondent Mother at the very least addresses the desirability of the child's identity, that is the name of the child, reflecting the fact that there are two parents who have different surnames.
I have some sympathy for the view expressed by the Applicant Father that the combination of two surnames may, in a practical sense, be difficult for the child. However, in my view, the issue of the name by which a child is to be known is a specific parenting issue which must be determined having regard to the general dictates of the welfare of the child as being the paramount consideration. I accept what Kay J said in the unreported matter of K and M referred to in my judgment
K & M[2003] FMCAfam 70 where he had stated the name of a child is crucial to the identity of the child. In the present case, I am satisfied that it is in the interests of the child and indeed it is crucial in relation to the identity of the child that being a product of this short relationship where the parties were not married and where they both still retain and use a surname, to direct at the parties to have the name registered as
L J D-H in lieu of L J D. Orders 9, 10 and 11, which appear in the coversheet of this judgment, reflect the change to the child’s name.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 July 2003