H and F
[2001] FMCAfam 198
•5 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
H & F [2001] FMCAfam 198
FAMILY LAW – contested residence – number of changes to child’s home – need to protect aboriginal culture for child – overall best interests of child.
| Applicant: | A R H |
| Respondent: | T M F |
| File No: | ZD 2195 of 2001 |
| Delivered on: | 5 September 2001 |
| Delivered at: | Darwin |
| Hearing Date: | 5 September 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Solicitors for the Applicant: | Sivyer & Associates, Solicitors of Darwin |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
ORDERS
That the CHILD, J S H, born 24 August 1999 live with the MOTHER from 8 September 2001.
That the FATHER have contact with the CHILD at all times agreed between the parties but in default of agreement at the following times:
(a)each alternate weekend from 5.00pm Friday until 5.00pm Sunday commencing 15 September 2001;
(b)each alternate Thursday from 5.00pm until 11.30am the following Friday, commencing 20 September 2001;
(c)for half of all school holidays after the CHILD commences Transition:
(d)from the date upon which the MOTHER is admitted to hospital for the birth of her second child until the date one (1) week after the MOTHER and the infant child return home from hospital; and
(e)reasonable telephone contact.
That each parent have responsibility for making day to day decisions concerning the care, welfare and development of the CHILD when he is in their respective care.
That the parents have joint responsibility in making decisions concerning the long term care, welfare and development of the CHILD.
That each party provide to the other at all times their respective telephone numbers and residential addresses.
That each parent undertake a Parenting Course within 6 months from the date hereof and supply to the other parent a report or certificate in relation to their satisfactory completion of such course within 7 days of receipt of same.
That each party be restrained and an injunction be granted restraining each party from permanently removing the CHILD from within 50 kilometres of the Palmerston Post Office without first obtaining the written consent of the other party or Court order.
That each party be at liberty within the next 12 months to take the CHILD on holiday out of Darwin for a maximum period of 4 weeks in order to visit respective grandparents in Queensland provided only that the party intending to holiday with the CHILD first provides to the other party at least 14 days prior to departure the following:
(i)contact address and telephone number whilst on holiday;
(ii)departure and return dates.
That during the period when the FATHER holidays out of Darwin with the CHILD pursuant to Order 8 herein, the MOTHER’S right to residence is suspended and that during the period when the MOTHER holidays out of Darwin with the CHILD pursuant to Order 8 herein, the FATHER’S right to contact is suspended.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN
ZD 2195 of 2001
A R H
Applicant
And
T M F
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application before me which should be categorised as a contested residence application in relation to a child of the relationship, J S H. The child, is a child of a relationship between the father, A R H, who is currently 23 years of age and the mother, T M F, who is now 20 years of age. The issue for me to decide today is where J should live on a permanent basis into the future. Both parties have essentially agreed on the level of contact that the non-resident parent ought have.
Background
The background to the dispute and history of the matter is not seriously in dispute. The parties commenced cohabitation in 1997 at which time the mother was 16 years of age and the father was 19 years of age. It would seem on 24 August 1999 they were blessed with the birth of their son, J. Generally, it seems that the relationship was a reasonably stable one, notwithstanding the youth of the parties and the relevant inexperience that either of them had in parenting until January 2000 when there was an initial separation. The evidence as to the circumstances of that initial separation are not agreed but in any event they do not significantly affect the issues which I must decide today.
What does appear to be accepted is that from that separation in late January 2000 until late March 2000 the child resided with the father. The parties reconciled in late March 2000 but finally separated in July 2000. The events of that separation are also not particularly clear but it does appear, and it was agreed, that the child remained with the father at the home of the paternal grandparents and the mother had irregular contact. This arrangement continued until approximately
17 November 2000 when another event occurred.
I should indicate that there is the father's evidence that in July 2000 until approximately November 2000 he was reluctant to permit the mother to have unsupervised contact with the child because of some real fears he held that there was a prospect that the child would be removed from the area and therefore his relationship with J would be severely disadvantaged.
On 17 November 2000 the father apparently informed his mother, but not the mother of the child, that because of a range of issues it was necessary for him to leave the home. He made a decision to leave the child with the paternal grandmother. He acknowledges, and I think was quite frank in his admissions, that he had some personal difficulties at that stage arising from both the breakdown of the relationship, the death of a friend some months earlier, coupled with the continued abuse of the use of cannabis which had been a teenage habit.
On or about 13 December 2000 the mother again obtained sole residence of the child by agreement with the paternal grandmother. There certainly appears, on the evidence, to be some confusion as to whether any order of a court was made at this time. There does not appear to have been any order of the court made although, quite curiously, there is a clear statement by the father's solicitor to the father suggesting that an order had been made. Nonetheless, it does seem that he was not able to participate in the parenting of the child at this stage because of his need and desire to deal with certain personal problems.
It seems to me of some credit to the father, that not only did he try to deal with these problems, but he sought professional advice in the form of a consultation with Dr McLaren. His mother who gave evidence by telephone and was briefly cross-examined indicated that she also held concerns about whether her son had maintained or re-entered the drug culture and that when she handed the child to the mother on 30 December, she had no significant concerns about doing so believing, as I recall her words:
“ That she felt the child deserved at least to have one parent caring for him.”
It appears then that from approximately December 2000 until 2 March 2001, the child resided in the care of the mother although in about early February 2000, the father again commenced having regular contact to the child. It appears on the evidence the mother had indicated the intention to take the child with her to visit her mother in Queensland; it seemed that the mother has never seen the child. The evidence is disputed as to whether in fact the father agreed and on what basis he agreed to such holiday.
The father says all his actions in February until his decision in early March to retain the child were based on the premise that he was told by his lawyer that an order had been made for the child to live with the mother. The mother, for her part, says that the father had agreed that it would be okay for her to remove the child for a holiday of approximately 4 weeks to Queensland and in fact had paid or booked some tickets for bus travel to that state. Unfortunately for these parties and, it seems to me for J, a further incident occurred during February 2001.
The child, contracted what was ultimately diagnosed as impetigo. Whilst there is some dispute as to the exact date and when this condition became obvious to the mother, it seems at least clear on the evidence that there was a high level of concern expressed by the paternal grandmother on or about 18 February. The father also expressed concern during or after some contact visit. The child was, the mother says, taken by her to a doctor at a local community health centre where she was provided with a prescription for an appropriate remedy but she says because of her financial circumstance at the time, wasn't able to fill the prescription.
Some photographs of the child taken by the Father on 2 March (annexed to the affidavit of the father) do not adequately set out the extent of the infection that the child was clearly suffering at the time and suffering with some reasonably high level of discomfort. Generally speaking, I should say that the medical evidence in respect to these issues is somewhat vague and uncertain. Nonetheless, it seems that the parties had agreed between themselves that when the child was handed by the mother to the father on or about 2 March 2001, it was with the intention that that contact occur for a short block period until the mother's intended departure for the trip to Queensland.
The father became concerned with what he regarded as neglect associated with the lack of treatment of the impetigo and took advice from Dr Foreman who prescribed appropriate antibiotic medication and indicated that it would be 5 to 7 days before the child would be in a non-infectious state. As a result, the father indicated to the mother that he would not return the child. He did indicate however, that through his solicitor he gave advice to the mother that he would return the child, presumably to allow her firstly to take the trip to Queensland and then upon returning to Darwin, retaining the child as the permanent residential parent on the following conditions. They were:
(a)a satisfactory report from the office of the Childrens Protective Services and secondly
(b)a satisfactory medical certificate confirming that the mother was no longer infected herself.
The only evidence of the reporting to the Childrens Protective Services flows from the mouth of the father. He says that he made an appropriate complaint about neglect and was told by the Department that in the absence of four complaints they could not do anything. Even if they could, as I understand his evidence, their usual response considering the matter was the subject of a current proceedings before a court, would be to remove the child from both the parents to investigate the matter over a period of some months.
I indicated to the father, when I questioned him, that I regarded such a response as unlikely and he agreed with me. He also acknowledged that he did not press further with the complaint he made to the Childrens Protective Services because of the prospect of the adverse effect such a complaint may have had. He said that the mother provided him with no certificate and as a result he retained the child. There now appears to be a further period from approximately March to 31 May 2001 when an interim consent order was made in this court during which the mother's contact to the child was of a limited nature and generally of only a supervised nature at the home of the father or his parents (before they left for Queensland in April 2001).
An interim order was made 31 May 2001 by consent which provided that the father would have the residence of the child in the interim pending a final trial and that the mother was to have contact for three consecutive weekends each calender month or such other times as may be agreed.
Principles
It is trite to say that the principles which apply to a matter of this nature are properly set out by consideration of Section 60B of the Family Law Act with an overarching principle of paramount being the best interests of the child. In determining the best interests of the child, the Court is required to give consideration to the relevant factors under Section 68F(2) of the Family Law Act.
Evidence
I have already in my reasons, during the course of detailing the history, made some observations about the evidence I have heard and I propose to deal with the evidence more particularly when considering the relevant section 68F(2) factors. I should say, however, that both the mother and father gave evidence. In respect to the father I found his evidence to be given essentially truthfully and with a degree of frankness, particularly so far as his earlier difficulties with drugs and other behavioural problems including some elements, some years ago, of criminal activity. He struck me as a young man who is anxious to be a committed and involved parent in the life of J.
There was a hint in his evidence and the way that he expressed himself that he may have been the dominant person in the relationship between himself and the mother. Bearing in mind the young age of both the parties, one would anticipate that one of the parties was most likely to be dominant. He expressed, again with some frankness, the extent of his drug use including an isolated experimentation with speed. He says that since January 2001, save for an isolated incident on his birthday, he has not consumed cannabis. I should indicate that I am satisfied that he should be believed in that regard.
In respect to the mother, who is due to give birth to her second child within the next 5 to 6 weeks, she presented as a quiet, fairly relaxed person who showed some emotion whilst in the witness box. I can only assume that, as for the father, the events of the last few months have been quite traumatic for both of them. The mother was confronted with issues relating to her relationship with the father and in particular her allegations that the father had been threatening and overbearing during the course of the relationship.
The father had acknowledged that he may have made some inappropriate comments and I accept that he probably did, however it was clear to me that the mother when confronted under cross-examination with the issues was less precise in her allegations or comments. I cannot be satisfied on the evidence of the mother; and the testimony of the parties (which I have had the opportunity to see), that the father was violent or abusive in the manner suggested by her.
Having said that, the mother appeared to me to be very child focussed and when confronted with the issues relating to the impetigo and its treatment in February, I believe she reacted both reasonably and sensibly by acknowledging her regret in dealing with the matter the way she did and indicating that she believes in the future she will have learnt from that experience.
I had the benefit of some brief evidence from the paternal grandmother and the paternal grandfather. Both supported their children in their quest for sole residence, both, I am satisfied, have to the best of their ability during the course of the relationship between the mother and the father, provided what support they could to this young family.
Section 68F(2) factors
In a matter so finely balanced, the assessment of the relevant section 68F(2) factors becomes critical. I believe that the appropriate factors in this matter are those set out in subsections (b), (c), (e), (f) and (h). It can be identified from this comment that I am not satisfied that there is any evidence which would suggest to me that the child being in the physical care of either the mother and father is likely to expose the child to any psychological or physical harm. Although I shall deal in the category of parental attitude with the allegations made by the father about the mother's attention to medical treatment.
(b) The nature if the relationship of the child with each of the child’s parents and with other persons
The extent of the shifting of residence of the child between the mother and father and other members of the extended families is such that I feel comfortable in finding that the child has had the benefit of a much loved environment wherever he has been and that he has, as a result, formed secure attachments to both his parents and the extended family. In fact, both the mother and father agree and with a child this age and bearing in mind the amount of change he has occurred, I am not able to find any particular primary attachment exists between either of the parents.There will be the issue of the relationship which the child may enjoy with his half sibling who is, I understand, to be another boy. I shall deal with that aspect more in my conclusions, however it is clear that that is a significant issue in the consideration of these matters in my view. There is also the issue of the relationship which J may have with Mr D P, the father of the mother's unborn child. There is no evidence before me from Mr P or the extent to which, as counsel for the father quite properly identified, he may be able to act as a supervisor or support to the mother. However, the father again quite honestly and properly and with a degree of frankness acknowledged that Mr P was well known to him, being one of his friends, and that he had no serious concerns or reservations about Mr P being a significant influence in the life of J as he obviously will by forming the defacto relationship with the mother and being the father of the sibling to J.
(c) The likely effect of any changes
It is with some regret that I note that this child has been the subject of enormous changes in his young life. As a result, if anything, that increases the capacity for a child to cope with change. The circumstances which have arisen since March do not, in my view, establish any significant status quo in favour of the father so that any change if that was to occur cannot, in my view, be regarded as being detrimental to the long term interests of the child. Having said that, it seems important to me that the child should have orders made which are likely to take account of any other possible changes in the lifestyles of the mother or the father so that there are less changes that the child needs to cope with in the future. The nature of any contact arrangement will be such that the contact between the child and the non-resident parent should be such as to enable the maintenance, the improvement and development of the bond between them.
(e) The capacity of each parent to provide for the needs of the child including emotional and intellectual needs
It is this factor which the solicitor for the father says is the most significant factor and one which should cause me the most significant concern in relation to a change of residence in favour of the mother. When asked to identify in the evidence where the concern as to the mother's capacity would lie, Ms Holtham points to the conduct of the mother in relation to the impetigo infection coupled with the inappropriate bedding in the form of a cot and linen which is referred to in the father's material. She says effectively that I should have some serious concerns about the mother's capacity to provide for the needs of the child and in particular those concerns would be aggravated by the additional pressures associated with the mother's obligations as a full time parent to the soon to be born baby. She points to the fact that the mother is a relatively young mother with little parenting experience and she says a lack of real support available to her. She says that I should have some concerns about accepting that Mr P, who gave no evidence to the court, is capable of providing some support to the mother. That there is no evidence as is the case as to the capacity or availability of Mr P to provide the supervision for either of the children if the children are in the mother's care.
Ms Harrison for the mother also points to the issue of capacity and asked me to consider the reasonably recent concern in the period where the father removed himself from the care of the child without any notice to the mother in November 2000 as a result of the issues to which I have already referred. Namely, his identified depressive condition coupled with his use of cannabis. She says that in totality the evidence would suggest that the mother is an inexperienced mother, rather than a neglectful mother. I formed the view based on the evidence and based on my observation of the parties, that the father in terms of capacity has both the desire, the willingness and the capacity to care for the child. Similarly, notwithstanding the concerns of the father, I am satisfied with the evidence that the mother has learnt from the experiences which have taken place since final separation in July 2000 including periods of sole residence of the child and that she also has demonstrated, in my view, a capacity to provide for the emotional and other needs of the child.
The father says I should find that the incident relating to the impetigo is reflective of some future like conduct of the mother in not dealing with medical concerns. Having seen the mother in the witness box and understanding the matters which she has raised, including her reliance upon certain levels of advice, coupled with the effect of these proceedings and the exposure by her to the risks associated with failing to follow proper advice, I hold few concerns that the mother will repeat any regretful behaviour which she acknowledges occurred during that period of time.
(f) The child’s maturity, sex and background
In that regard, the most important differentiating factor in this matter is the fact that the child is a child of Aboriginal descent. Obviously, because of the mother's family, there will be greater opportunity for the mother through her extended family to introduce the child and or develop a connection of the child with the lifestyle, culture and traditions of Aboriginal people as are appropriate. The grandfather indicates a desire and willingness to be involved in that activity and already the mother says that there have been some examples of fishing and gathering in traditional areas using traditional methods. Although the father indicated that he had no objection to this occurring and his statement could have been of a more positive nature, I nonetheless hold no real concerns that the father does not understand and appreciate the importance of the child's Aboriginality and also is aware, and I think properly so, that the child's European ancestry is an important issue for of this child as well and that should be developed through a connection with his extended family, many of whom still live in this area.
(h) Attitude to the child to the responsibilities of parenthood demonstrated by each of the parents
I have already indicated that it is my view that whilst the mother's conduct in February is such as to be in hindsight less than appropriate, I do not regard that incident coupled with the apparent “mouldy cot” as sufficient to suggest that she does not understand the responsibilities of parenthood. Both parties show, in my view, some lack of insight as to the importance of a child of this age to maintain regular contact to the other parent.
I feel less comfortable in attributing the actions of the father between July 2000 until November 2000 and then from March 2001 until
31 May 2001, with the same sympathy. My view is that the father's conduct between July to November 2000 and March to 31 May 2001 (when contact to the Mother did not occur) was more reflective of concerns about his relationship with the child and the manner in which he could best prepare his case in this court than it was about a proper appreciation of the concerns that a child of this age would have with such extended separation from the Mother. Having said that of course, when people are confronted with proceedings in a court they often in that pressure act in a way which they might not otherwise act. I am comforted by what appears to be a better level of communication between the mother and father which has developed, possibly since the consent orders. In that light, it seems to me – and I will propose to order that both parents undertake an appropriate parenting course so that they are capable of better understanding the responsibilities of parenting as well as they way in which the other parent – the manner in which communication with the other parent can improve the life of the child. I am satisfied that now both parents will support the orders of the court and to that extent that the non-residential parent will be supported in the continuing contact with the child by the residential parent.
Conclusions
This is a very finely balanced matter. There are some aspects of both the mother and father's behaviour which would raise some slight concern but which I believe have been explained by both their age, lack of parenting experience, other issues such as the father's significant drug abuse problem and what seems to me to be the mother's more relaxed and non-confrontational style. When the court, in determining what is the best interests of the child, is required to consider a matter of this nature one must not only consider the circumstances as they currently present themselves but also as I can reasonably infer, will present the child in the foreseeable future.
I believe that both the mother and father are capable of parenting J. The father has indicated that he will be prepared to almost devote himself to the full time care of J and delay any studying to a part time nature until J gets older. The mother says she will act as a full time carer and to that extent she will forced in that position in any event by the birth of her impending child. Where both parents are capable of providing a quality, though slightly different level of care and nurturing for their son, I am forced to look at any differentiating factor which swings the balance one way or the other.
Ultimately, in this case, I am concerned to ensure that the mother has the ability to allow J to develop a relationship with his new sibling. I am also of the view that at least since the start of this year, the events of February ought not to have caused a change in residence which did occur and some of which was promoted by delays of this court it would seem to me. In considering the separation of siblings, I have often referred to the remarks of the Chief Justice in the case of In the marriage of H v H (1995) FLC 92-599. In that case he refers to some literature from the Journal of Divorce and Remarriage. In particular, at page 81-971 he quotes from the literature in the following way:
“ Further during early trials where children frequently spend more time interacting with their siblings than with their parents, the frequency of interaction with siblings does not diminish until emancipation in adolescence or early adulthood where the child leaves home. Therefore, sibling relationships constitute one of the more commonly interpersonal relationships among humans. Not only do siblings influence the development of each others socioconnative skills, but the relationship can be described as primarily a positive one with high frequencies of ultraistic defectionate and cooperative and concerned behaviour.”
In all the circumstances, I am satisfied that the best interests of J will be served by him returning to the care of his mother. In my view, that should occur before the birth of this child for these reasons. There needs to be a period during which the mother can re-acquaint herself with the child as a residential period. It is not unusual for a child in any situation to confront the prospect of a new member of the family with both a degree of excitement and trepidation.
Because it is my view that the long term interests of J are best satisfied by him returning to the mother whilst having significant contact to the father, I believe it is important for there to be a period of readjustment for the child J before his half sibling brother comes to the family home. In that regard, the mother has indicated in her material when she is required to give birth to the child, that the interests of J will be served by the child returning to the father during that period. Bearing in mind the age of the child and the other support structures available to the mother when she is not available, that seems appropriate. I am not satisfied that it is necessary to make any particular order in that regard, however if the parties believe I should do so, I will do so. In relation to contact, the current contact order, whilst the child has been residing with the father, is that the mother have contact for three consecutive weekends each calender month and at other times as may be agreed.
It seems that both parties believe that the appropriate contact order should be an alternate weekend from Friday to Sunday and in the off week, one night overnight. I will ask the parties to reduce the contact arrangement to writing by in terms of the times which best suits their needs now that I have made a decision in relation to the residence. Bearing in mind that it is Wednesday today, I would propose that the child return to the mother on Saturday and that any contact that the father then has would commence in the following week until the mother is confined for her birth.
For a child this age, I do not think it is appropriate, nor do I see the need for, any specific order in relation to telephone contact. To some children, a telephone is both an annoyance and an attraction. Generally specified orders of contact for telephone access or telephone contact arise at a time often inconvenient to young children whose attention spans are reportedly short and the order which I prefer to make is of a general nature which will require the mother and father to continue to share information as to their home telephone number and their home residential address so that there can be an easy flow of communication between the parties and the child. The child should be encouraged to telephone, if he is with the mother, the father, whenever he has anything to reasonably share with him. Similarly, the father should not be dissuaded from telephoning the home of the mother to speak to the child on at least a weekly basis, bearing in mind the level of contact which will be taking place.
The other issue which arose was that both parties who currently live close together may wish to have a period of some 4 weeks in which they can take the child with them to visit relations interstate. That seems appropriate. If the parties cannot agree on when that should occur, although it seems obvious that that is most likely to occur on the first occasion before the child commences school – I think it is called transition in the Northern Territory, then I would be happy for an order which identified the right of both parents to suspend contact for a period of up to 4 weeks to enable the other parent to have the care of the child for an extended period for the purpose of a holiday interstate.
Other than in relation to that holiday, I propose to make an order that neither party without the consenting other party, remove the child from a reasonable distance on a permanent basis of the Darwin General Post Office. I notice that the earlier order made on 31 May 2001 provided for a period of 50 kilometres from the Darwin General Post Office. If that still meets the needs of the parties, I would be happy to make that order provided that the words permanently be included in the provision so as not to prevent either party on appropriate notice, taking the child for a holiday. It seems important to me that the next step is for the parties to continue to develop the level of mutual respect and trust which appears to have been present during at least part of their relationship, so that they can confidently and cooperatively parent J into the future. To that extent I will order that the parents undertake a parenting course within 6 months from this date and provide to the other parent evidence of completion of that course. It is not necessary as I understand the processes for the parents to complete the course together however they might be happy to do so; it is a matter for them.
In terms of a long term holiday order half of each school holiday for the father.
Obviously, a child of school age for these parents will be a new experience and that might well mean that the arrangement for almost weekly contact no longer works. Alternate fortnight weekend contact might work better in the future because of other things that the child does. However, bearing in mind what the child has been through over the last 18 months, I think that at this stage it is appropriate that the child see the father on a weekly basis which is why I propose to make an order that the Father have contact three out of four weekends, or, which is what the interim order provided. That was both parties proposal so I am happy to be guided by what they think was best for them as being what they think is best for the other party. I think a child of this age will benefit from weekly contact to dad but when he goes to transitional school there will be other factors which will impact upon his availability including extracurricular activities, sport, sleep-overs, friends who want to do things. They have said nothing that would suggest to me that these parties ought not to share long term responsibility for long term care, welfare and development.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Baumann FM
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