H and Z

[2001] FMCAfam 137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & Z [2001] FMCA fam 137

FAMILY LAW – Contact dispute – Child 3 years of age – Competing proposals.

Applicant: J H

Respondent: S Z

File No: ZB 2996 of 2001

Delivered on: 3 August 2001

Delivered at: Brisbane

Hearing Date: 3 August 2001

Judgment of: Baumann FM

REPRESENTATION

Applicant in Person

Solicitors for the Respondent: Mr Maguire of Payne Butler Lang

ORDERS

1. That the CHILD, R B H, born 22 May 1998 reside with the MOTHER.

2. That both parents share responsibility for the long term care, welfare and development of the child.

3. That the FATHER have responsibility for the day to day care, welfare and development of the child, except during periods that the child is in the MOTHER’s care.

4. That the FATHER have contact with the CHILD at all times as may be agreed but at least:

   (a)Each Sunday from 9.00am to 5.00pm commencing from Sunday, 5 August, 2001 up to and including Sunday, 3 November 2001;

   (b)Each alternate weekend from 9.00am Saturday until 9.00am Sunday commencing from Saturday, 10 November 2001;

   (c)Each alternate weekend from 9.00am Saturday to 5.00pm Sunday commencing from the first contact weekend in February 2002 and thereafter.

5. That when the CHILD is in the care of one parent, that parent is to facilitate the CHILD telephoning the other parent, or receiving a call from the other parent, when the CHILD wishes to do so.

6. That the parties shall seek to ensure that the CHILD:

   (a)Spends Mother’s Day with the MOTHER;

   (b)Spends Father’s Day with the FATHER;

   (c)Shares his birthday, Christmas day and Easter with the MOTHER and FATHER and other significant family events with the MOTHER and FATHER as may be appropriate.

7. That unless otherwise agreed, the MOTHER and FATHER shall share equally the responsibility for transport to changeover, with the MOTHER to deliver the CHILD to the FATHER’S residence at the commencement of contact and the FATHER to return the CHILD to the MOTHER’S residence at the completion of contact.

8. That the MOTHER shall keep the FATHER informed of any medical or dietary requirements of the CHILD.

9. Pursuant to S65DA(2), 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 to these orders.

IT IS NOTED:

1. That the parties shall attend any sessions with the child psychologist attached to the B Base Hospital as recommended by the psychologist.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

ZB2996 of 2001

J H

Applicant

And

S Z

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case which involves parenting orders in relation to a child, R B H born 22 May 1998.  R, as a result, is currently aged 3 years.

2. The background to the matter is not seriously in dispute.  The parties were married in February 1997 and separated approximately three months after the birth of R.  There is some dispute on the evidence as to the reasons why contact was somewhat sporadic from the time of separation;  however, the effect of it is that until the order of Federal Magistrate Rimmer on 30 April 2001, the regularity and length of contact was not in any particularly solid or clear routine.

3. Certainly, since the order was made, I am satisfied both parties have attempted to comply with the order and the intent of that order.  Although each party does indicate some failure which they associate with conduct of the other party to comply strictly with the order, the nature of those disagreements are not significant and as Mr Maguire indicated in his submissions, and in fact in his case outline, one of the more pleasant aspects of this case is that it is bereft of the usual level of character assassination or negative comment made by one party to the other.

4. The principles of the Act are, of course, that a child is entitled to maintain and develop a relationship with each of, in this case, his parents, whether those parties have been married, have lived together, or never lived together.  I do not sense in any of the evidence I have heard that at this stage the mother is anything other than a mother who is promoting that contact.

5. She was, I think, frank and honest enough to acknowledge at an earlier date she had been hurt to some degree by what she described as some “vicious rumours”.  But the parties have moved on since that time, and so when I am considering the objects of the Act, and in particular the requirements of Section 68F(2) of the Act, there does not appear to be in any real sense a significant disagreement between the parties.

6. For the sake of completeness, and as required by the authorities, I identify the relevant findings and relevant factors under Section 68F(2) to be as follows:

   a)In relation to the wishes of the child:  I do not believe the wishes of a child of this age should carry any significant weight. As I explained to the mother, and no doubt heard by the father, a child of 3 is wanton to generally say whatever the child thinks the parent that they are with at the time likes to hear. Having said that, of course, bearing in mind that there was in fact a slight conflict between what is alleged by the father as said to him, namely "I'd like to stay overnight" and some concerns which R has expressed to the mother about going with the father, none of this should be seen as any bit surprising.

   b)In respect to the nature of the relationship of the child with each of the parents:  it is clear, on the face of the material, that the primary care-giver and primary attachment for the child is with the mother.  This arises not only from the fact that the period of separation occurred so shortly after R's birth, but also it would seem, for whatever reasons, the lack of contact that the father had with R until regular contact occurred after the order of 30 April 2001. It is clear, however, that in the short period of time that there has been this regular contact, the mother acknowledges that the child has developed a good relationship with the father.  Whereas in the earlier parts of the evidence it's suggested that the father was not known to the child, it is clear now that the child recognises the father, both as a father figure by the use of the word "daddy" or "dad", and as the mother quite happily concedes enjoys the contact with the father. The father is anxious, as he said, to continue to play a major role in the life of the child, and I am satisfied that there is nothing in the mother's conduct which suggests to me that she does not support that occurring.

   c)The likely effect in the change of the children's circumstances:  this is, of course, the nub of this case.  The mother's position is that any overnight contact, and in particular any holiday contact, should not occur at this stage as it is her fear that the child would not cope with contact at this level at this stage. In support of her position, she relies upon the affidavit of the child's Paediatrician, Dr W.  Dr W was not the subject of cross-examination, but to some degree the weight that can be attached to Dr W's opinion has to be tempered by the fact that the doctor has had little contact with the child since certain post-natal difficulties in diet, (an intolerance to milk products), which are now under control.  Dr W in June of this year saw R and the mother again. Also Dr W has not had the opportunity, of course, to have any discussions with the father.  With these reservations, however, the doctor indicates in her report the importance of a system whereby contact is graduated to allow the child to cope with the change in circumstances. The view of the doctor is supported by the literature and the evidence often received in this Court, particularly in circumstances where a child of this age has had limited, for whatever reasons, contact to the other party. 

   i)The father says it is his view that the child would cope with overnight contact at this stage. The father says this is based on the level of enjoyment he experiences with R during the periods of contact that he has had, namely approximately 7 unsupervised visits in the father's care, the longest visit being of some 6 hours. He also urges that there be an order made for, in effect, block contact in the form of holiday contact in September/October school holidays, and thereafter in December/January holidays, and all subsequent school holidays.

   ii)The mother's proposition appears to be based on a view that the child will be able to cope with the extended holiday contact when he turns 4.  There is, of course, nothing magical in the ages when children can cope with the changes in contact.  Each case must be based on its own circumstances, bearing in mind that many children have special needs, many children have had a different regime of contact during the course of their life, and so forth.

7. All I can do today is consider the evidence as I find it and to try and create a regime which bests suits this child.  I am satisfied that there are no special needs of the child save for what might be some dietary issues, (which the mother has shared with the father) which I am satisfied the father, would certainly comply with.

8. I am also satisfied, having seen the parties in the witness box, that notwithstanding the fact that they are, in a sense, first-time parents with little experience of parenting, that they both have a fairly realistic and responsible attitude to the duties of parenthood, and that as Mr Maguire has said, those capacities have improved over the last few months where contact to the father has been more regular and has increased.

9. In terms of what I believe is the appropriate order, bearing in mind the findings in respect of the Section 68(4)(2) factors, it is my view that the child would be capable of coping, on the evidence before me, with overnight contact slightly earlier than the mother proposes.  However, I do not believe that the child would cope with the contact overnight at this stage, and in fact the mother would also, I think, need some time to adjust to the change, and therefore I would not propose to make contact overnight immediately as proposed by the father.

10. One must remember, of course, that what is important in a matter of this nature, especially with a child this age, is building a long-term relationship.  Often it is said in the Court by many experienced experts, that it is better to hasten slowly so as to ensure that the rebuilding of relationships and bonding is built on a basis which can endure all the other stresses which will inevitably be faced with this child over the coming years of his life.

11. What is clear, and I am satisfied and congratulate the parties, is that this child is much loved, that both the mother and father are very child-focused, that any difficulties or issues which the father may have had earlier in relation to the level of contact he was either capable or wishing to enjoy have now been displaced by a very real interest and passion in the welfare of the child.

12. One should also, of course, recall that contact provides the principal carer, in this case the mother, with an opportunity herself to be relieved of the responsibilities of parenthood for but a small time so as to enable her, and she is only a young woman, to again develop her own life.

13. So in the circumstances, the regime which I propose to adopt will be that the father will have contact each Sunday from 9.00 am to

    
    5.00 pm until 3 November.  From Saturday, 10 November, until the first week-end in February 2002, the father shall have contact each alternate weekend from 9.00 am Saturday to 9.00 am Sunday. which is to occur from 9.00 am Sunday to 5.00 pm Sunday, shall occur from the first contact week-end in February, Week-end contact being alternate weeks.

14. It seems to me that when the child moves into a more regular routine in terms of pre-school and the like, he will be able to cope with the expanded contact.  The orders will provide no particular order for telephone contact other than when R is in the care of one parent, then that parent is to facilitate the child telephoning the other parent or receiving a call from the other parent when the child wishes to do so.

15. I will make an order that the parties shall seek to ensure that the child spends Mother's Day with the mother, Father's Day with the father, and shares his birthday and Christmas Day, and Easter with the mother and father, and any other significant family events with the mother and father as may be appropriate.

16. I propose to order that unless otherwise agreed, the mother and father shall share equally the responsibility for transport to change-over with the mother to deliver the child to the father's residence at the commencement of contact, and the father to return the child to the mother's residence at the completion of contact.

17. I will order that the mother shall keep the father fully informed of any medical or dietary requirements of the child.  I do not propose at this stage to order any block contact.  I do that for this reason:  based on the evidence available to me at the moment, it is not possible for me to properly assess when the child would be able to cope with longer contact than overnight contact.

18. My impressions on the current evidence would be that the child would cope with, say, three or four days block contact over the Christmas holiday period increasing overtime.  But I was comforted by what I felt was a very appropriate and responsible attitude of the parents, and as my order will note that the parties shall attend any sessions with the Child Psychologist attached to the B Base Hospital as recommended by the Psychologist, I am satisfied that these parties can agree on when the child will be able to undertake the extended contact.

19. If of course they can't, they have other options available to them, and the option that they should adopt would be counselling and/or mediation before Court intervention.  But it is, bearing in mind the current evidence before me, too arbitrary a decision to say when this child may cope with longer contact than overnight contact.  So rather than make an order which is somewhat arbitrary, I feel confident to leave that decision to the parties initially.

20. I will make an order for residency in favour of the mother.  I will make special issues order that the parties bear joint responsibility for the long-term care, welfare, and development of the child, and that the day-to-day care, welfare, development of the child rests in the parent with whom the child is at the time.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date: