H and H
[2001] FMCAfam 319
•29 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2001] FMCAfam 319 |
| CHILDREN – Residence – contact. |
| Applicant: | E G H |
| Respondent: | D A H |
| File No: | ZE 949 of 2001 |
| Delivered on: | 29 November 2001 |
| Delivered at: | Dandenong |
| Hearing Date: | 28 November 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Acting for self |
| Solicitors for the Applicant: | Acting for self |
| Counsel for the Respondent: | Ms Stavrakakis |
| Solicitors for the Respondent: | Victoria Legal Aid 23 Ringwood Street |
ORDERS
THAT the children of the marriage, S R H born 23 April 1988, C A H born 24 July 1989, and D C H born 27 September 1994 reside with the wife as follows:
(a)Each alternate weekend from 11:00am Saturday to the commencement of school Monday, or Tuesday in the event that the Monday is a public holiday, commencing 30 November 2001;
(b)Each other weekend from 11:00am Saturday to the commencement of school Monday, or Tuesday in the event that the Monday is a public holiday, commencing 8 December 2001;
(c)For half of each of the school term holidays at times to be agreed, and failing agreement for the first half of the school term holidays;
(d)For one-half of the Christmas holidays at times to be agreed between the parties;
(e)On each of the children's birthdays and the mother's birthday from 3:30pm to 6:00pm should the birthday fall on a weekday;
(f)For Christmas 2001 from 6:00pm Christmas eve to 4:00pm Christmas day and each alternate year thereafter;
(g)For Christmas 2002 from 4:00pm Christmas day to 6:00pm Boxing day and each alternate year thereafter;
(h)Telephone contact twice each week
THAT the children reside with the husband at all other times;
THAT each party have the sole responsibility for the day to day care, welfare and development of the children while they are residing with them;
THAT orders be made in terms of the minute marked 'Exhibit A' and placed on the court file.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
ZE 949 of 2001
| E G H |
Applicant
And
| D A H |
Respondent
REASONS FOR JUDGMENT
The proceedings
These applications are competing residence applications. The wife seeks an order that the children reside with her from 7:30pm Friday to the commencement of school on Monday each week or Tuesday if the Monday is a public holiday. The husband initially sought an order for a continuation of the current regime, that is that the children reside with the wife from 7:30pm on Friday to 8:00pm Sunday, but during the course of the proceedings he amended his application to accord with the counsellor's proposal that the wife have contact from 11:00am Saturday morning to the commencement of school on Monday or Tuesday if a public holiday.
The parties agreed on half the school holidays and Christmas arrangements and there was a minor issue in respect to birthdays and special days during the week. The husband's position was that the children should have from 3:30pm to 6:00pm in the event that their birthdays or the mother's birthday fell on a weekday. The mother sought an overnight order.
Affidavits relied upon
The wife's application is supported by her Order 30 affidavit which was sworn and filed on 16 November.
The husband's application is supported by:
a)his affidavit sworn on 3 August and filed on 6 August; and
b)his affidavit sworn on 23 November and filed on 26 November.
There is also a report from Robert Munro, a Family Court Counsellor. That report is dated 16 November 2001.
The history
The history of this matter is that the husband is 60 years of age. He was born on 15 February 1941 and is employed on a part-time basis as a caretaker at the G W Secondary College. He lives in the former matrimonial home at 20 A Street, B. He originally came to Australia from the United Kingdom in 1968. He enjoys good health, save that he suffers from asthma. His working hours are 11:30am to 8:00pm on Saturday and 10:45am to 7:45pm on Sunday each week. He also works during some of the school holidays. He has been employed at the G W Secondary College since 1997.
The wife is 47 years of age, having been born on 5 February 1954. She is a taxation analyst who is employed by the Taxation Department. She lives at 13 H Street, B S, about a five-minute walk from the husband's home. She has two older children from an earlier marriage. She came to Australia from the Philippines in 1986. She works five days a week, although has some flexibility in relation to those working hours.
The parties first co-habited early in September of 1986. They married on 12 September 1986 and separated finally on 29 April 1999. There are three children of the marriage, S R H born on 23 April 1988, aged 13; C A H born on 24 July 1989, aged 12 years; D C H born on
27 September 1994, aged 7.
There is some disagreement about the reasons that the children were left with the husband and further disagreement about the arrangements that have existed for contact up until the making of the orders on 6 August 2001. I make no finding in relation to those disagreements and they played no part in the determination that I am asked to make.
The orders that were made on 6 August were to the effect that – they were interim orders which entitled the wife to have contact from
7:30pm Friday to 8:00pm Sunday each week and for half school holidays, telephone contact twice a week and otherwise contact by agreement. The children were to reside with the husband at all other times.
The law
Residence, contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles with underlie those objects. They are subject to section 65E in that in determining the outcome, the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(a) provides that children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never been married or never lived together. Paragraph (b) of that same section provides that 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.
In deciding residence, contact and parenting arrangements that will best promote the interests of a particular child, the Court must consider the various matters set out in section 68F(2). Its various subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account any other factor or circumstances that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed. B v B, the Family Law Reform Act (1997) FLC 92755.
The substantive issue in this matter is a very narrow one. It is whether the wife ought to have three nights a week during the school term or two nights. It is a matter of whether the children's time with her commences on Friday evening or on Saturday morning. While there is some disagreement between the parties about how well the contact has worked, I am satisfied that it has taken place in accordance with the orders.
The wife's case in respect to the additional night is that she says the children want to spend some more time with her and that she wants to be able to take them to school on Monday. Certainly I am satisfied that it is better for the children to remain with their mother till Monday morning. They will be able to enjoy one morning a week where their mother takes them to school and I am not convinced that the short time that the children enjoyed with their father after 8:00pm on a Sunday before going to bed at 9:30pm would have been quality time as the husband describes. It is a pre-school night where there would have been little opportunity for relaxed leisure time. The children presumably would be tired and would need the limited time to ready themselves for bed and school the next day.
The wife's case is that the children want to spend some additional time with her and this is supported to some extent by the counsellor's report. At page 7 of that report the counsellor says:
While S tended to prefer staying with her mother, her main complaint about her father was that he seemed to be becoming more interested in a girlfriend and so S was not so much the centre of attention she wanted.
The counsellor said at page 8 in respect to C:
He was keen to stay at his mother's on Sunday nights and to go to school from there on Monday mornings, but said his father said they could not.
Again at page 8 the counsellor says about D:
D had the strongest expression of wanting to spend time with his mother. This was recognised by his brother and sister and by his parents. He said that he slept with his mother and says he often stays awake until after his mother has gone to sleep.
Whilst the counsellor in cross-examination indicated that there may be some inconsistency in what S said at various times, and whilst he indicated that the views of the older children about having more time with their mother were not very strong, he nevertheless indicated that all three children had asked to spend extra time with their mother and that D, the youngest child, had the strongest expression of wanting to spend time with his mother.
The husband's proposal was initially for a continuation of the current arrangements, he then altered his proposal to allow the mother to have the time she sought on Sunday night and Monday morning in exchange for Friday evening and a short time on Saturday morning. However, it really would provide the children with no extra time with their mother as they sought. The husband's case is that it provides a bit more quality time with the children. There is no doubt that they would be more relaxed on Friday night compared to Sunday.
However, it is significant, I find, that the husband when cross-examined by the wife as to why he would not agree to her having an extra night, indicated to the effect that any loss of time to him would mean a decrease in the child support he received. He went on to say he had been told not to give that statement. When pursued on the issue of why he wanted more time, he eventually added "I need more time with my kids."
Counsel for the husband said in her final address that I should conclude that the mother's motivation was also financial as a result of what she told the counsellor. I refer to page 5 of the counsellor's report towards the end of the fourth paragraph:
But while identifying that the financial situation was tight with the father, the reporter asked the mother that if the father was prepared to offer for her to have the children on Sunday evening, whether she was prepared to forego that bit of adjustment to child maintenance. She said, "No, I am looking after the children."
I do not accept that this statement can be construed as evidence that the mother's application for additional time with the children is primarily financially motivated, nor was it an issue that she was cross-examined about. The counsellor stresses the need for the father to have some quality time with the children and assesses that need in terms of the father's work times, yet he seems to place less emphasis on the restrictive nature of the mother's work commitments when looking at a timetable which would provide the children with the extra time they want with their mother.
I also find it pertinent to the father's case that in the final paragraph of his report the counsellor recommends that he have additional school holiday time with the children. Taking into account that the mother has the standard four-week annual leave provisions in her employment and in order for the father to have full weekend-like days to share with the children, it is recommended that when it comes to school holidays, the mother be able to choose with priority which four weeks she has each year and that the father have the remainder of the school holidays.
It needs to be remembered that because of the weekend work, this would result in him having the children for only five days during those weeks, thus the father would have about seven of these five-day weeks per year spread over 12 months in order to give him the quality time through weekend-like days. The father would also be able to nominate which weekend he would wish to use when he takes the children on their fishing trip. At no stage of the proceedings did the husband pursue an application for more quality time in the holidays.
Conclusion
Accordingly, I am satisfied that there should be an extension of the time the children spend with their mother. While the mother's primary submission was that she should have every weekend from Friday to Monday, she indicated a fall-back position that she would be content with Friday to Monday alternate weeks and Saturday to Monday in the other weeks. In my view, that provides some minimal increase in the children's time with their mother and does not dramatically impact on the father's quality time with them and I will make orders accordingly.
The other minor issue I have been asked to determine is the amount of time that the children should spend with their mother on their birthdays if such days fall during the week. The father's proposal is from 3:30pm to 6:00pm. I am satisfied that it is in the children's best interests as it will allow the children to spend time with both parents. The mother's proposal for overnight contact would deprive the father of any time with the children on their birthdays.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate:
Date: 29 November 2001
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