H and K - Re Donald a child - residence and contact

[2002] FMCAfam 385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & K
Re Donald (a child – residence and contact) [2002] FMCAfam 385

FAMILY LAW – Children – parenting orders – residence and contact – male child living with father and having regular contact with mother – whether there should be a change of residence – whether the child would enjoy a greater variety of experiences, opportunity and social contacts in the mother’s care – whether the child would be happier living with the mother – allegations of violence, neglect, prostitution, alcohol abuse and use of pornography.

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

B & L [2001] FMCA fam 84
In the marriage of Raby (1976) 12 ALR 669

Applicant: H

Respondent: K

File No: NCM3038 of 2002

Delivered on: 11 December 2002

Delivered at: Sydney via telephone to Newcastle

Hearing Date: 18 & 19 November 2002

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr G Gorton

Solicitors for the Applicant: Armstrongs

Counsel for the Respondent: Mr R Wilkinson

Solicitors for the Respondent: Gordon Garling Moffitt

ORDERS

1. THAT “Donald”, born 3 December 1997 (“the child”), live with the father up to and including 31 December 2002 and that he live with the mother on and from 1 January 2003.

2. THAT the child have contact with the mother pursuant to orders 2, 3 and 4 made by the Family Court on 8 April 2002 for the remainder of 2002.

3. THAT the child have contact with the father from the commencement of 2003:

   (a)until the child starts school, from the second Saturday of each month at 12.00 noon until the third Sunday of each month at 12.00 noon unless Mother’s Day fall on a contact weekend, in which case contact is suspended until 5.00pm on Mother’s Day;

   (b)after the child starts school:

   (i)during the first half of all school holiday periods, other than the summer school holidays;

   (ii)during the second half of the summer school holidays.

   (c)from 5.00pm on 24 December until 5.00pm on 26 December in even numbered years;

   (d)from 5.00pm on the day immediately preceding Father’s Day until 5.00pm on Father’s day, if it is not otherwise a contact weekend;

   (e)for not less than five hours on the child’s birthday, provided that such contact is to occur at the mother’s house unless otherwise agreed between the parties;

   (f)by telephone at any reasonable time, to be initiated by the father;

   (g)at such other times and places and subject to such other conditions as may be agreed between the parties from time to time;

4. THAT the mother is to give the father at least 28 days notice in writing of any proposed change in residence by her, or any proposed travel by her with the child outside Australia.

5. THAT contact pursuant to orders 3(a), (b), (c) and (d) is to begin and end alternately at the southbound KFC Restaurant, Hume Highway, Liverpool, and the residence of the father.

6. THAT the father is not to consume alcohol while the child is in his care and is to ensure that the child is not exposed to pornography.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM3038 of 2002

H

Applicant Father

And

K

Respondent Mother

REASONS FOR JUDGMENT

Introduction

1. The father and the mother are the parents of one child, Donald (not his real name) born 3 December 1997.  This child was the subject of interim consent residence and contact orders made in the Family Court of Australia at Newcastle on 21 February 2002 and further orders on 8 April 2002. Pursuant to these orders the child lives with his father in the Newcastle area.  The mother has had contact with her son for seven days of each calendar month since those orders were made.  The parties now request that the Court make a final residence order and make alterations to the present contact arrangements, in particular, concerning the “drop-off point” and “pick-up point” at the commencement and conclusion of contact periods.

Background

1. The parties commenced a relationship in Thailand in 1996.  The father had come from Australia to work in Thailand.  The couple lived together in Thailand for two years and after the father’s employment terminated the couple decided to move to Australia.  They came to live in Australia in 1999.  They continued to live together, in the Newcastle area, until December 2001, when the mother decided to go to rural New South Wales fruit picking.  The mother never returned to the matrimonial home and since then has resided in the western slopes region of New South Wales.

2. While in that area, the mother met Mr H and commenced a defacto relationship with him.  Mr H is a partner in an orchard.  He has recently separated from his wife and has two adult sons and one daughter from this marriage.  He also has one grandson.

3. The father has not repartnered but there was some evidence of him having a Thai ‘lady friend’ who has sometimes come to stay.  She has now returned to Thailand.  He was formerly married twice, once to an Australian woman and once to a Thai woman.  There are two adult children from the first marriage but none from the second.

4. There has been some tension between the parties since their separation but generally both have made strong efforts to make the interim contact arrangements work and have generally had the child’s best interests at heart.

5. The father seeks to retain the care of his son on a full time basis and have the Court make minor changes to the present contact orders that are in place.  The mother wishes to have the child reside with her and Mr H, with contact visits to the father on a regular basis, at least until he starts school and thereafter, during each school holidays.

6. On 18 November 2002 the parties agreed to the following list of relevant documents in these proceedings:

   ·father’s application filed on 15 January 2002 and supporting affidavit filed on 12 November 2002;

   ·mother’s response filed on 19 February 2002 and affidavit filed on 8 November 2002;

   ·affidavit of the paternal grandmother filed by the father on 12 November 2002;

   ·affidavit of Ms C, friend of the family filed by the father on 12 November 2002.

   ·affidavit of Mr H (mother’s partner) dated 8 November 2002 filed by the mother on 13 November 2002;

   ·affidavit of WD (friend) dated 13 November 2002 and filed by the mother on 14 November 2002;

   ·affidavit of BG (friend) dated 13 November 2002 and filed by the mother on 14 November 2002;

   ·interim order of the Family Court dated 21 February 2002;

   ·interim order of the Family Court dated 8 April 2002;

   ·Family Report by C R Thompson dated 7 November 2002 and filed 8 November 2002.

Relevant Law

1. I referred to the relevant principles in a parenting case in B & L [2001] FMCA fam 84.  Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The overriding principle in such proceedings is that the best interests of the child is the paramount consideration: s.65E of the Family Law Act. Subject to that, s.60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:

   (1)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.

   (2)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.

   (3)Parents share duties and responsibilities covering the care, welfare and development of their children.

   (4)Parents should agree about the future parenting of their children.

2. These are only principles, not prescriptive rules, and the best interests of the particular child in this case remains the paramount consideration.  Nevertheless they are important and I must pay due regard to them.  I also encourage the parties to think carefully about these principles when they are dealing with each other in future on matters concerning the child.

3. In deciding the residence and contact arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s.68F(2). It is clear from that provision that the list of factors is not closed and that the infinite variety of individual children’s circumstances can be addressed.

Consideration and findings

The child’s wishes

1. At the time of the hearing the child was four years old and he is now five. He has not expressed a clear preference as to where he wants to live. Mr Thompson, the family reporter, concluded that the child has strong attachments to both parents and would like to live with both of them (paragraph 54 of the family report). Section 68H of the Act makes clear that children cannot be required to express their wishes. I would not give much weight to any expressed wishes of a child of this maturity level. At such a young age, the child is hardly likely to understand the nature of these proceedings nor able to make a sound judgment of his best interests.

The nature of the child’s relationship with his parents

1. The child presently resides with his father and, from the family report, appears to have a ‘normal’ and strong relationship with his father.  The report also says (at paragraph 49) that he has a:

   …very pleasant and outgoing disposition and does not show any unfortunate behaviours that are not accounted for by the distress that any child would have in the situation that [the child] has been sometimes placed.

   It was made clear through the evidence in Court that the mother’s move was a traumatic event for him and that changeover after contact times have also been an upsetting time for him, as is to be expected.

2. I also heard evidence from the family reporter and family friends that the mother and the child have a very strong affectionate attachment to one another.  Mr H particularly emphasised this in his evidence and gave examples of times where he witnessed this. He mentioned that while the child is staying with them on the farm the mother and the child sleep together in the same bed.  He explained that he thought that this may be inappropriate as the child gets older but at the moment it is an opportunity for the mother to give as much love to her son in the short periods she has with him.  Indeed, it is common that young boys have a great bond with their mothers and it is even more expected in this situation where the child only sees his mother once a month for a period of seven days.

3. The family reporter described the child as ‘happy’ while in the presence of both parents yet expressed that he was particularly pleased to see his mother.  In the circumstances, this is a ‘normal’ response for a child who rarely sees one parent and has daily contact with another.

4. A change of residence will have the same effect on the child in terms of his relationship with his father.  The separation from either parent is detrimental, but as both parties have already shown in the last six months, there has been a concerted effort to make contact arrangements work.  There is a common understanding from both parties and I accept that it is in the child’s best interests to have regular contact with both parents.  This was confirmed by Mr Thompson in the family report when he says (at paragraph 51) that:

   “[the child] was able to show appropriate responses to his parents in the presence of the other parent which indicates that there has been a great deal of deliberate focus upon [the child’s] needs by both parents when he has been changing from the care of one parent to the other.”

The likely effect of any changes in the child’s circumstances

1. Mr Wilkinson, counsel for the respondent mother, drew my attention to a case where the issue of whether the ‘status quo’ should be disturbed in a residence application was considered.  In the Marriage of Raby (1976) 12 ALR 669 outlines some of the arguments for and against disturbing the status quo and in particular states that when deciding this issue one must look at the ‘quality’ of the status quo. Factors such as, the age of the child; whether the status quo has operated for a considerable length of time; whether there had been a beneficial development of the child during that time; and finally, whether the relationship with the status quo parent is based on affection, are all relevant matters to be taken into account when deciding what weight to give to the status quo argument.

2. Indeed, the best interests of the child would certainly have to outweigh any argument that one should refrain from disturbing the status quo.  A change of residence for the child would be a major adjustment for him, as it would be for the parties. He has been in the sole care of the father since December 2001, except for the short monthly periods he has spent with the mother and Mr H on the farm.  The father has been responsible for all of the child’s daily needs and from the evidence presented he has done a good job in providing these. The child has also had weekly contact with his paternal grandmother and grandfather and aunts, uncles and cousins who live in the Newcastle area.  In contrast, the mother’s extended family all reside in Thailand and although it seems that the maternal grandmother has visited Australia on two separate occasions to help with the parenting of the child, the fact is that Thailand is a long journey and flights are an expensive commodity.  The lack of extended Thai family in Australia is a relevant consideration.

3. The mother and Mr H did, however, give evidence that there is strong support network where they live.  Mr H has adult children of his own and one young grandchild and they have friends in the area who are also married to Thai women.

4. The mother lives in a well settled rural area in the western slopes region of New South Wales.  I was told that the local primary school has approximately 30 students and two teachers.  If he lives with the mother, when the child reaches secondary school level he would need to continue his education some 30 kilometres away.  I have also heard evidence from both parents that the child only has one or two friends his age that he plays with.  I do not see it as a problem for a boy of five to meet new friends should his residence be changed.  He has not started school yet so it would not be too disruptive to move him at this age, as there is no worry about interrupting his education.  Furthermore, I have formed the view from the evidence that was presented that the child will have a greater opportunity to be involved in outdoor activities if he lived on Mr H’s farm.  There he has a pet dog and a pony, which I see as beneficial in his development as a child.

5. The child would be able to attend primary school, very close to the father’s home.

6. A change in residence may initially be unsettling for the child, but as soon as he is enrolled in school and begins to make his own friends I think he would adjust to the change.  This assumes that both parties continue to make every effort to make contact periods with the non‑resident parent workable.  It is a concern that a change of residence would mean that the child would be living far away from his father and grandparents but I see no reason why this cannot be remedied by orders that make sure he has regular contact with his father and, by extension, his extended paternal family.

Practical difficulties and expense associated with contact

1. The parties live about six hours away from each other by road.  The present orders require monthly contact between the mother and the child for a period of seven days, with the changeover occurring at either the father’s home or the mother’s home.  Generally, the arrangement has been that the father drives to the mother’s home at the commencement of contact and the mother and Mr H drive the child back to the father’s home at the conclusion of contact.  This has occurred on almost every occasion except the last where it was reversed for reasons of convenience.  Wherever the child is, he should enjoy regular contact with the other parent.  The parties will incur expense and inconvenience in fulfilling their contact obligations whatever residence order is made.

2. Mr H generously offered to drive all the way to the father’s home fifty percent of the time and that for the other fifty percent of the time the parties could meet at Liverpool KFC for drop-off and pick-up.  This seems like a good arrangement considering Mr H is in a better financial position than the father.  He also has a friend who owns a motel in the Newcastle area.

Capacity of the parents to meet the child’s needs

1. I am satisfied that both parents have the capacity to meet the child’s physical needs.  They both live in appropriate accommodation and the child would have his own room.  It is however, evident that the mother’s current residence is dependent on her relationship with Mr H continuing.  As to his psychological needs, there is strong evidence from the parties, the family report and from Mr H and the father’s mother that both parents love the child and make every effort to make him feel loved.  Although they have different methods for discipline, both parties respect the need for it and endeavour to teach the child what is right and wrong the best way they can. 

2. The father is currently unemployed and does not know whether he will be able to get employment.  He is a 51 year old man and has not had paid employment since being made redundant in Thailand, and may find his chances quite limited.  He plans to undertake a computer course at TAFE.  He currently receives benefits for himself and the child from Centrelink of $770 per fortnight plus rental assistance.  A child support assessment is also in place in favour of the father at the rate of $21 per month.

3. The mother asserts that the capacity of the father to care for the child is inhibited by excessive alcohol consumption and exposure to pornography and firearms.  I heard evidence on all these matters and I am not satisfied that any of them are severe enough to warrant the father being labelled as not capable of parenting the child.  I accept the father’s evidence that he is actively dealing with his former abuse of alcohol, that he has disposed of his firearms, and that he has not retained pornography that might inadvertently be seen by the child.  An alcoholic relapse is my greatest concern but I will not speculate on the likelihood of this occurring.  A relapse may occur but it seems not to have done so thus far.  The effects of alcohol abuse on a child are severe and therefore I have given some weight to this risk factor in making my decision.  There remains some risk that the child could be neglected if the father reverts to his abuse of alcohol, and some risk that the child could be exposed to pornography should the father continue to make use of it.

4. Neither parent has a very strong focus on sport or education for that matter. Even though the child is only just five years old I am concerned that both parents, in particular the mother, have not given much thought to the child’s future education or recreational activities.  I note that the father gave evidence that he had investigated enrolling the child into a local soccer team, but I was not convinced that this was a high priority.

5. I have some concern about the age of the father.  He is a 51 year old man who lives on his own and doesn’t like too much disruption in his life.  He suffers from hypertension, which is controlled by medication.  He may not be able to be as active with the child as he gets older.  On the other hand, the mother is a 26 year old who works picking fruit on a farm and could be expected to have no physical difficulty in the future in caring for the child.

6. I have some concerns about the parental capacity of the mother and father.  On the one hand they have proven to me that they both have the child’s best interests in mind, and this is most evident by their undoubtedly strong love for the child and their commitment to contact arrangements.  Yet, on the other hand I heard evidence of the father looking at pornography websites on his home computer and keeping firearms in the house.  Allegations were also made that the mother had been a prostitute while working in a bar in Thailand when the parties first met.  Furthermore, I heard evidence that both parties have children from previous relationships and both have little involvement in their lives.  The father has two adult children from a previous marriage aged 21 and 18 years.  He has limited contact with them.  The mother also has a child in Thailand who is aged 8 years whom she has had limited contact with since his birth.  I do, nonetheless, accept that at the age of 18 working in a bar in Bangkok, the mother may not have been in the position to look after the baby.  I am satisfied that the mother now has a more mature approach to her parental responsibility.  Whatever the mother may have done in Thailand, she was considered suitable by the father as a partner and mother.

1. Mr H’s testimony was important.  He impressed me as a warm, caring and responsible man who would provide strong emotional support for the child and the mother.  With the support of her partner the mother has the capacity to meet the child’s physical and emotional needs.  The father has an adequate, but lesser capacity to meet those needs, in particular the child’s emotional needs.

The child’s maturity, sex, background and other characteristics

1. The most relevant point to consider here is the issue of the child’s cultural heritage.  It is desirable that the child has knowledge of Thai culture.  It is also desirable that the child visit Thailand to meet his Thai relatives and learn about his heritage.  The child would benefit from contact with the Thai community and the father has alluded to the fact that he remains in contact with Thai people in Thailand.  However, the mother would be the best person to expose him to Thai culture.  The mother speaks to the child in Thai and English, while the father admitted that his Thai is more limited and that his pronunciation is poor.  I view cultural heritage as important in a child’s development and by living with the mother, the child will be exposed to both Thai and Australian culture, whereas with the father, it seems more remote that his Thai culture will be embraced. I consider that his mother is in a better position to introduce Thai culture to the child. She is able to speak Thai with him and she has expressed wishes of taking him to Thailand for a holiday early next year for three to four weeks.  She is in a better financial position to do this than the father.

The need to protect the child from physical or psychological harm caused by abuse, ill treatment , violence or other behaviour

1. There was an allegation that the father hit the child on one occasion with a soft drink bottle and gave him a nosebleed.  There was not enough evidence to substantiate this allegation and therefore I am unable to attach any weight to it.

2. I am not satisfied that the child is at risk of physical or psychological harm in either the father’s or the mother’s home at present.  However, the father needs to be vigilant in ensuring that the child is not exposed to pornography whilst in his care.

The attitude to the child and to the responsibilities of parenthood demonstrated by each parent

1. In his closing submissions Mr Wilkinson gave me a concise comparison of the father’s household and the mother’s.  He put to me that the comparison is between a 51 year old man, unemployed with limited hope for future employment, who likes his privacy and quiet lifestyle versus a 26 year old woman with a loving partner, a farm and substantial financial security.  He also put it to me that in any event, if the father got a job in the future, the only family member that would be able to care for the child was his own mother, who is 78 years old.  He compared this with the extended support network offered by Mr H.  He noted that the ‘status quo’ favours the father yet sought to reinforce fears about alcoholism and pornography.  The evidence of BG and WD was presented to support these contentions.  They were, however, partisan witnesses and their evidence is less useful than that of the parties.  The father was frank and open in his evidence about his past abuse of alcohol and use of pornography.  These remain risk factors but they should not be blown out of proportion.  The father is a quiet, reserved, middle-aged man who is generally a capable and responsible parent.  The mother is a young, attractive and outgoing person with a strong emotional bond to her son and a loving and supportive partner.

2. The issue raised by Mr Gorton, for the father, that the mother doesn’t really want to fulfil her duties as a mother, was put to me with evidence that in the December 2001 period of contact, she was too busy working, going to parties and going out with Mr H to entertain spending any time with her son.  The evidence of Ms C was presented in support of this assertion.  She proved to be an unimpressive witness, even taking into account that she gave her evidence in Thai, by telephone.  She seemed not to understand her obligations as a witness and when I attempted to point these out to her I received a torrent of Thai in response, most of which was mercifully untranslated.  At one point she consulted some other person with her about the answer she should give to a question.  I place little weight upon her evidence.

3. I have not given much weight to the father’s argument in any event because I believe that the mother was just trying to get one area of her life secure, that is, the relationship with Mr H, before she had the capability to sort out the other, that is, her relationship with her son.  In my view this shows no lack of love for the child; nor does it show her to be incapable of parenting the child.

Any family violence involving the child or any member of his family and family violence orders

1. Allegations were made about the father having been violent towards the mother while they were living together.  There was one specific incident and the mother gave evidence of an apprehended violence order she took out subsequently.  She also gave evidence of staying in a woman’s refuge for three weeks.  Yet she later withdrew the AVO application and resumed living with the father because she said that she was scared that the father would go to gaol and she did not want that to happen.  There was conflicting evidence from the parties about what happened that led to the AVO application, although their evidence tended to converge under cross-examination.  I find that the father pushed the mother during an argument, causing her to fall.  I also find that this was an isolated incident.  I place little weight on it.

2. There is no current issue of family violence relevant to these proceedings.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children

1. Both parties have co-operated with one another to make contact arrangements successful and I have little doubt that if this continues there will be no problem with the implementation of any future contact orders.  A change of residence should have no impact on this.

Any other fact or circumstance the Court thinks relevant

1. On balance, I agree with Mr Thompson’s recommendation that the child live with the mother.  The mother’s relationship with Mr H is an important factor in support of a change of residence.  The evidence of Mr H indicates that that relationship is a strong and continuing one.  The father is nevertheless concerned that the mother may in the future leave Mr H, may return to Thailand, or may resume prostitution.  There is no credible evidence that the mother has resorted to prostitution since leaving Thailand.  The mother admitted that she planned a holiday in Thailand next year, but gave evidence of a strong commitment to remain in Australia.  She has permanent residency and no apparent reason to leave.  There is a risk that if the relationship between the mother and Mr H were to break down, the factors which support a change of residence would be removed.  With that in mind I have considered whether I should link a residence order in favour of the mother to her continuing residence with Mr H.  I have decided not to draw that link in the orders that I will make, based on my assessment that it is unnecessary and unreasonable to do so.  The mother should not be made to feel compelled, by orders of this Court, to remain in a relationship with Mr H if she does not want to.  I will, however, require the mother to give notice to the father of any proposed change of residence, or proposed trips overseas, so that he may consider whether any further application to the Court is warranted.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 December 2002