Harris and Harris
[2007] FamCA 14
•23 January 2007
FAMILY COURT OF AUSTRALIA
| HARRIS & HARRIS | [2007] FamCA 14 |
| FAMILY LAW - CHILDREN – Parenting orders - Equal time |
| Family Law Act 1975 (Cth), s.60B(1), s.60CC(1), s.65DAA(1) and (2) |
| APPLICANT: | Mr Harris |
| RESPONDENT: | Mrs Harris |
| INDEPENDENT CHILDREN’S LAWYER: | Independent children's lawyer |
| FILE NUMBER: | DGF | 625 | of | 2005 |
| DATE DELIVERED: | 23 January, 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 11, 12, 13 December, 2006 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | The father in person |
| SOLICITOR FOR THE RESPONDENT: | The mother in person |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Grant |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | McCormack & Co., DX 17575, Dandenong |
Orders
That the husband and wife have equal shared parental responsibility for the child of the marriage K born in June, 1999.
That subject to any agreement between the parties to the contrary, the child live with the husband as follows :
(a)during school terms, from the conclusion of school on Thursday until the commencement of school the following Monday in each alternate week;
(b)during school terms, from the conclusion of school on Thursday until the commencement of school the following Friday in each other week;
(c)from 4:00 pm. on Christmas Day until 6:00 pm. on Boxing Day;
(d)for one half of the Easter school term holiday, to include the Easter weekend (being the period from Good Friday until Easter Monday) in 2008 and each alternate year thereafter;
(e)for one half of each of the other school term holiday periods;
(f)for a maximum period of one half of the summer school holiday period;
(g)in the event the child is not with him on her birthday, for four hours on her birthday at times to be agreed and failing agreement from 3:30 pm. to 7:30 pm.;
(h)if Fathers’ Day does not fall on a weekend when the child is with him, from 9:00 am. to 6:00 pm. on Fathers’ Day; and
(i)at such other times as agreed between the parties.
That the child live with the wife at all times other than those set out in paragraph (2) hereof and, in addition, and notwithstanding the provisions of any other paragraph of these orders :
(a)from 4:00 pm. on Christmas Eve to 4:00 pm. on Christmas Day;
(b)if the child is not with the wife on the weekend which includes Mothers’ Day, from 9:00 am. to 6:00 pm. on Mothers’ Day;
(c)if the child’s birthday falls on a day on which she is not with the mother, for four hours on her birthday at times to be agreed, and failing agreement from 3:30 pm. to 7:30 pm.;
(d)on the birthdays of each of the wife’s other children, S and H, for four hours at times to be agreed, and failing agreement from 3:30 pm. to 7:30 pm.;
(e)at such other times as agreed between the parties.
That to give effect to the provisions of paragraphs (2) and (3) hereof, the following provisions shall apply :
(a)The child’s first period with the husband in 2007 pursuant to paragraph (2)(a) hereof will commence on the first Thursday of the first term in 2007;
(b)The child’s periods of time with the husband pursuant to paragraph (2)(a) hereof will recommence in the second, third and fourth school terms :
(i)if the child was with the wife for the whole of the last seven days of the immediately preceding term holiday period, on the first Thursday of the new school term; and
(ii)otherwise, on the second Thursday of the new school term;
(c)The child’s periods of time with the husband pursuant to paragraph (2)(a) hereof will recommence in the first term in 2008 and each first term thereafter :
(i)if the child was with the wife for the whole of the last seven days of the summer school holiday period, on the first Thursday of the new first term; and
(ii)otherwise, on the second Thursday of the new school term;
(d)The child’s periods of time with the husband pursuant to paragraph (2)(e) hereof shall be :
(i)if the child was with the husband for the whole of the last full weekend of the immediately preceding school term, the second half; or
(ii)otherwise, the first half;
(e)The child’s periods with her parents during the summer school holidays shall be as follows :
(i)a period of two consecutive weeks with the wife, to commence on or prior to 30 December in each year, the specific commencement date to be advised in writing to the husband no later than 1 December;
(ii)if the husband seeks a period which is longer than a week (and in any event not exceeding two consecutive weeks) he shall advise the wife in writing of this by 7 December and the period (not exceeding two consecutive weeks) shall commence at the conclusion of the period the child is with the wife pursuant to paragraph (4)(e)(i) hereof;
(iii)if the husband does not seek an extended period of time with the child pursuant to paragraph (4)(e)(ii) hereof then the child will live with him during the summer holidays for the week immediately preceding her time with her mother pursuant to paragraph (4)(e)(i) hereof (subject always to the provisions of paragraphs (2)(c) and (3)(a) hereof) and the week immediately following that time.
That neither party remove the child from the Commonwealth of Australia without first obtaining the written consent of the other party.
That the parties keep each other advised in writing of his or her residential address and telephone number.
That the parent with whom the child is not living during a school holiday period may telephone the child on two occasions per week and the other parent shall do all things reasonably necessary to facilitate the child taking the telephone call.
That if a parent will not be able telephone the child pursuant to the provisions of paragraph (7) hereof because there will be no facility for her to take the phone call, then the parent with whom the child is to live during that period must advise the other, no later than seven days prior to the commencement of the holiday period, of :
(a)the place to which the child is to be taken; and
(b)a telephone number at which the other parent can be contacted (or where a message can be left for and communicated to him or her) in the event of an emergency.
That each of the parties allow the child to have reasonable telephone communication with the other during periods she is in his or her respective care.
That if the child is ill and requires medical attention the parent then responsible for her shall take her, if practicable, to her treating general practitioner at the Local Clinic at O.
That the husband and wife each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as practicable of each treating doctor or like professional attended by the child, and authorise him or her to speak with the other parent.
That the wife forthwith authorise the principal of the child’s school to provide to the husband (at his expense, if any) :
(a)a copy of the child’s school reports;
(b)an order form for any school photographs of the child; and
(c)school bulletins, notices and newsletters routinely provided to parents.
That each of the parties be at liberty to attend school concerts, sports days and other school activities routinely attended by parents.
That the parties be and are hereby restrained by themselves, their servants and agents from discussing the Family Court proceedings and any evidence adduced during those proceedings with the child or in her presence or hearing, and from permitting any other person to do so.
That the parties use a communication book to be exchanged at changeovers in which to record information relevant to the child’s care and welfare in the period she is to be with the other parent.
That a copy of the reasons for judgment herein be provided to Ms. D.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.65DA(2) and s.62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 625 of 2005
| Mr Harris |
Applicant
And
| Mrs Harris |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The father and mother have a daughter, K, who is seven. The central issue for the Court is the time the child is to spend with each of her parents.
PARTIES
The husband is 47 and lives in G. Since 2000 he has conducted a components business from a factory in W; prior to that he was a public servant. K is his only child.
The wife is 44 and lives in O. She has two children from an earlier marriage. The wife’s daughter is 17 and lives with the wife; she has just completed year 11. Her son is 19; he has commenced a degree course at University and presently lives with his father who lectures at University. He continues to spend a deal of time with his mother and sisters.
BACKGROUND
The parties married in April 1998, having lived together for a little over a year. They separated on 7 January, 2005, on the initiative of the wife. Their marriage was dissolved by a divorce order which became final in October 2006.
RELEVANT CHRONOLOGY
At the time the parties began living together the wife had been out of the paid workforce for many years. She remained occupied in fulltime parenting and home-making after the child was born. When the components business was purchased in 2000 she juggled part-time work in that business with what she saw as her primary parenting role. The husband may have wished that the business had been more of a joint venture (and, indeed, wished that the marriage had not ended) but was not critical of her focus on the parenting and home-making role, save to submit that it did not provide good role modelling of the importance of paid work.
The wife has now been out of the work force for almost 20 years, save for the period in which she worked in the components business. She anticipated discussing the possibility of obtaining part-time work with Centrelink in February 2007; she envisaged work during school hours on a couple of days a week, or some home based work. She is engaged in voluntary work at the child’s school and in the broader community.
It is clear that the husband was very distressed by the wife’s decision to end the marriage and it is probable he experienced difficulty in understanding and accepting the boundaries she felt to be essential. He saw it as reasonable for him to attend her home to see the child without prior consultation and on weekends when, by prior arrangement, she was to spend the time with her mother and siblings rather than with him. The problem was exacerbated by the husband’s relationship (or lack of a relationship) with the child’s siblings. His own evidence was of that relationship deteriorating during the last years of the marriage and of them wanting nothing to do with him after separation. When with the family reporter, Ms D, the wife’s daughter acknowledged the child’s need to see her father (and mentioned her visits to her own father) and the wife’s son demonstrated goodwill towards the husband and told Ms D she should have time with both parents.
In late April 2005, following mediation, the parties agreed to a contact roster. Described as “interim – not in concrete” it provided for the child to be with her father from 3:30 pm. on Friday until 7:00 pm. the following Saturday on each alternate weekend, and from 3:30 pm. to 7:00 pm. on Monday and Wednesday in one week and Tuesday and Thursday in the following week. That regime operated for a few weeks. At that time the husband was living with his sister in her home. The parties agreed that they would write things down, rather than speak in front of the child and the other children.
Although the husband complained that the wife had discouraged his contact early on, and sought to limit it, it was his evidence that he could not have his daughter overnight at his sister’s home on school nights saying, variously, that this was not possible as he and his sister both worked, that it was not possible because he and his daughter were there as guests and that it was not possible because it was impractical to have her stay.
The wife’s evidence was that the child became very confused about who was picking her up from school, and incredibly clingy; she was unsettled at night and wanted to get into her mother’s bed. Without further discussion the wife delivered a revised schedule to the husband, said to operate from June 2005. Pursuant to this the child was to spend each alternate weekend with her father from 3:30 pm. Friday until 6:30 pm. Sunday and on one afternoon in each week (Tuesday in the first, Thursday in the second) from 3:30 to 6:30 pm.
The letter the husband wrote in response, dated 2 June, 2005 makes it clear that by then he had also received a letter from her solicitor, and discussed the issue with the wife on the day the letter was written. His summary of that discussion notes her indication that the change was “only temporary”. In that letter he made it clear that, having complied with the agreement reached in mediation, he would operate only on that basis unless changes were made by mutual agreement, in the course of further mediation or by court order, and that he would be attending to collect the child from school at the times which had been originally agreed.
As a result of this standoff, both parties went to school to pick up the child on 2 June. I accept the wife’s evidence that the husband tried to discuss the issue with the child at that time saying things like “mummy tells me you’re a bit tired and confused at times”, “mummy wants me to see you less” and “mummy and daddy are not getting on so well”. It was in that tense climate that the wife filed an application on 16 June, 2005, seeking final parenting and property orders.
The parties agreed to obtain a family report from Ms D; she saw the parties, the child, the wife’s son and daughter in August 2005 and prepared a report dated 29 August, 2005. She recommended a phased in routine pursuant to which the husband would add one night onto the then current two nights in each alternate weekend at the commencement of term four in 2005, and another night from the commencement of term one in 2006. She also suggested that the child could have a meal with her father after school on one night each week.
During this period the parties were also trying to negotiate a property settlement, and grievances arising from those negotiations flavoured their dispute about the child.
On 1 September, 2005 interim orders were made, by consent, adopting the bulk of Ms D’s recommendations. Pursuant to those orders the husband was to have “residential responsibility” for the child from Friday to Monday in the last school term of that year, then Thursday to Monday from the start of the 2006 year. In addition, he was to have the child with him from 3:30 pm. until 7:00 pm. on Thursday in the following week, and on Monday in the other week. The orders provided for the child to spend the bulk of the 2005/2006 summer school holiday period with her mother; she was to be with the husband from the last day of school until 12:00 noon Christmas Day, from 4:00 pm. Christmas Day to 9:00 am. 27 December and from 9:00 am. to 7:00 pm. on 23 and 26 January, 2006. This was to accommodate the child having a two week holiday with her mother and siblings, a routine activity for them when the family was together.
The wife’s evidence was that from the time weekend contact was extended to commence on Thursday, the child became distressed and unsettled. On return from her father’s she had trouble sleeping, woke up crying and was distressed. She became fretful before or after the weekend visit and increasingly clingy and it became harder for the wife to get her to school on mornings she was going to her father after school. The child also told her (probably in April or May 2006) that she had wet her bed when sleeping at her father’s home and had not been washed or showered, which the wife believed was corroborated by her presentation at school on the following Monday morning.
It was common ground that the wife assists in the child’s classroom on a Monday morning; she was thus routinely present when the child was returned by the husband. She said the child also came to school on two occasions wearing her pyjamas under her school uniform.
That the child was disturbed and unsettled was corroborated by other witnesses called by the wife. The husband’s evidence was that she was not unsettled at his home, although she was “clingy”, wet the bed once and “commenced nail biting”. Concerned at the child’s presentation, the wife sought to reduce the alternate weekend time back to three nights and for there to be only one overnight stay in each alternate weekend.
PROPOSALS
The wife’s proposal remained constant throughout the trial. She proposed that the child be with her father on alternate weekends from the conclusion of school on Friday until the commencement of school the following Monday and, in the alternate week, from the conclusion of school on Thursday until the commencement of school on Friday. If that were implemented she would spend four nights a fortnight with her father.
The trial was conducted on the basis that the husband sought a week and week about arrangement which would operate for the whole year, save for the three day Christmas period. In order to ensure that the child did not spend a full seven days without seeing one of her parents, he proposed that (save during school holiday periods) she spend time with the parent with whom she was not then living from the conclusion of school on Monday until 7:00 pm.
In his final submission the husband said that he had realised this proposal was a bit “pie in the sky”. In lieu of the seven day per fortnight regime, he proposed that the child be with him from the conclusion of school on Thursday until Monday morning in each alternate week, from the conclusion of school the following Thursday until the commencement of school on Monday and then from the conclusion of school on Monday until the commencement of school on Tuesday, a total of six nights per fortnight. He proposed that the cycle be suspended during school holidays, that the parties share the term holidays and have alternate weeks during the summer long holiday period.
In final submissions the independent children’s lawyer supported the child being with her father in each alternate week for a four day block from the conclusion of school on Thursday to the start of school on Monday, and one overnight stay in the other week, a total of five nights per fortnight.
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The wife relied on her affidavit of evidence in chief filed 7 June, 2006 and on affidavits sworn by the husband’s former brother-in-law, her mother, her former husband and a friend. Neither her former husband nor her friend were required for cross-examination. The wife had filed affidavits sworn by her son and by another friend but following discussion, elected not to rely on them.
The husband relied on his affidavit of evidence in chief filed 14 September, 2006 and an affidavit sworn by his sister. Ms D prepared two reports, one dated 29 August, 2005 and the other 7 September, 2006. Ms D’s evidence was cogent and insightful and I place weight on it.
The husband was concerned that some of the material the wife sent to Ms D had not been filed, meaning he was unaware of it. Much of it (statements of family and friends) was subsequently filed in affidavit form. I am satisfied the wife simply provided material she thought was relevant.
While I understand the husband’s concern, I am satisfied Ms D treated all affidavits and documents supplied as background. It was from discussions with the parties that she gleaned the real issues in dispute and her reports demonstrate that the husband was well aware of the substance of the wife’s complaints. I am not satisfied this prejudiced the husband or rendered the report flawed.
Neither party was legally represented. It is always difficult for parties to cross-examine each other and relatives, as occurred. Both behaved courteously and respectfully. The manner in which each conducted his or her case and gave evidence clearly demonstrated their different personalities and personal styles, a difference reflected in their parenting approaches. Notwithstanding some trenchant criticism of each other, at times they appeared to share a rueful joke or reminiscence.
In both her reports Ms D noted the husband’s focus on creating an equal position between the parents without consideration of the possible destructive impact of this on the child. It was hard to move him from the focus on specific dates recorded in notes and calendars and although he spoke of the need for flexible arrangements it was always in the context of an equal period of make-up time. Two illustrations will suffice.
I am satisfied that during the marriage the wife and three children routinely spent about a fortnight away on holiday at a relative’s home in the summer school holiday period. The husband was not with them; his evidence was of going for some or all weekends. It was clear that the wife wanted to maintain that arrangement, if possible. The husband’s preference was for the week and week about regime he sought to continue over that period. He did not envisage being able to have the child for two weeks in a row, as that was not consistent with his work commitments, and he thought it would be too long away from her mother. He said he would be prepared to vary the week and week about regime to allow the child to holiday with her mother and siblings, but only if he had an equivalent period. When it was pointed out that his own case precluded that occurring, he either could not see the inconsistency or thought the notion of formal equality of time was so important it could be ignored. Notwithstanding that, he maintained that he did not want an order that would allow him to have a block of two weeks with the child during that holiday period.
The second illustration is less significant but points up the problem. The wife sought that the child be able to spend four hours with her siblings on their birthdays, if the child would otherwise be in the husband’s home on those days. In final submissions the husband made it clear that while he did not oppose an order in those terms, he would require make-up time with the child. If an order in those terms were made, the child could, at most, go to her mother’s home from the conclusion of school until 7:00 or 7:30 pm. on an additional two nights a year, in order to celebrate her siblings’ birthdays. But from the husband’s perspective the wife was getting more time with the child, he was losing time with her, and the ledger must be balanced.
The wife presented as much more direct and emotionally open, and very focused on the welfare of her family unit. As noted by Ms D, the child has been nurtured in a developmental way by her mother and cared for very well by her; Ms D once used the word “over-nurtured”, albeit swiftly adding that that had caused “no dis-benefit to the child”. Parenting and making a home for her family has been the wife’s role for almost twenty years. It is inevitable that she has invested a great deal of her sense of self in that role; she has been anxious about the child’s time with her father and the effect on her of being away from her and the family home. While her demeanour was more relaxed than that of the husband, it was clear that she, too, could be obstinate and inflexible.
The three lay witnesses cross-examined all presented as decent people, caught up in the proceedings through ties of blood and friendship. The wife’s mother made no secret of her negative views of the husband although her evidence was that, far from encouraging her daughter to leave, she counselled her to stay in the marriage. When asked about the negative tone and content of her affidavit, her simple response was that she thought that was what affidavits in court were about. Each of the three was understandably partisan towards the person for whom he or she gave evidence but I am satisfied each did his or her best to recall events honestly.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
I make it clear at the outset that I am satisfied the presumption applies. There will be an order for equal shared parental responsibility.
PRIMARY CONSIDERATIONS
When determining what is in a child’s best interests the primary considerations are :
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1).
I will deal elsewhere with submissions going to the issue of psychological harm but only in the sense of the husband’s capacity to fulfil the child’s emotional needs. I do not otherwise find the child is at risk of abuse, neglect or family violence. I also place weight on the first of the primary considerations.
ADDITIONAL CONSIDERATIONS
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is too young for her views to be determinative. I accept Ms D’s opinion that the child is quite young for her age, probably as a result of being a well nurtured child with two older siblings. She is an enthusiastic and happy child, socially well-adjusted and loyal to both her parents. Like many children in her position, when first interviewed by Ms D she said she wanted her parents to live together. She had a perception that both her parents were lonely saying, in the course of the first interviews, that when she was with her father her mother was sad, and when she was with her mother her father was sad. She reported positive things about both parents and about her half siblings. When interviewed nearly a year later, her presentation had not changed. She remained a sweet natured, gentle and affectionate child who perceived herself as well loved by all family members. Her perception was that her parents were friends and that she lived with them both, while adding “. . . more (with) mum”.
It is probable that the child does not fully understand the conceptual or practical reality of different living routines. When asked this year about other possible living routines and what her parents might want for her, she said she was “totally” confused but did recall that her father tells her “I want you a little bit more to sleep over”.
While both parents have spoken to the child about her living arrangements it is probable the mother’s questioning has been more open ended than that of the husband. I accept her evidence that she has, on occasions, asked the child whether she would like to see her daddy more or would like some changes. The husband’s oral evidence was that a constant theme of his discussions with the child was that he should have the same amount of time with her as the mother. In August 2005 he told Ms D that he had told the child he wanted to spend more time with her and that maybe she could stay a couple of days mid-week. Explaining his reasons for having such discussions with the child he said that he had been trying to let her know that he was not “just abandoning her and walking away”. Having regard to the amount of time the child has spent with him, it is improbable she would feel that way about him. I do not doubt he is genuinely concerned but am satisfied his questioning has more to do with his needs than with the child’s.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
I place weight on Ms D’s opinion that the child has important attachments to both her parents and to her siblings. The husband may be saddened by the loss of his relationship with his step-children but he struggled to acknowledge the importance of the child’s relationship with them. It is true that the wife’s son is no longer living at home and that the wife’s daughter is ten years older than the child, but I am satisfied they are very close. The wife’s son and daughter impressed Ms D as intelligent and personable teenagers and I accept her evidence that the child’s relationship with them is strong, secure and reliable.
It is probable that when she is in her mother’s home the child spends much more time with friends and relatives than she does when with her father. He said that people would describe him as “a bit of a loner” and there was little sense of routine frequent involvement with family or friends. The evidence of his sister was that she had only visited his house (in which he has lived for some 16 months) twice and that while he and the child visit her on occasions, that is about once a month or so.
The husband was concerned about the negativity of the mother’s mother and of the child’s siblings. The maternal grandmother lives in Gippsland and sees her daughter and grandchildren about once a month. She has seven children and sixteen grandchildren. While candid about her current view of the husband (“I don’t approve of you now – it’s my personal view”) she was adamant she has never exposed the child to any negativity and she spoke of her with warmth. Neither the wife’s son or daughter suggested to Ms D that their sister should not see her father.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
It was the husband’s submission that the wife had not encouraged his relationship with the child, a submission I do not accept. Each of the parents much accept responsibility for their failure to communicate since separation. Nothing in the child’s presentation suggested to Ms D that the wife had tried (or succeeded) in turning the child against her father and in her opinion there was no evidence that the wife sought to limit the child’s relationship with the husband in the long term.
Despite his complaints about his inability to spend enough time with the child soon after separation, the husband did acknowledge that the wife offered him additional time with her on Australia Day, Labor Day, Anzac Day and the Easter weekend in 2005 and that on the occasion of the child’s first school concert (in October 2005) she offered him overnight contact with her.
I also consider here sub-sections 4 and 4A. It is hard to underestimate the effect the parties’ problems with communication have had on their parenting. Both have been stubborn and intransigent at times. The husband was more critical of the wife in this respect than she of him. He took few steps to resolve impasses. For example, he complained of not being given a phone number where he could contact the child if she were away with her mother, maintaining that “I have not been given her mother’s mobile number”. Further questioning revealed that he knew that the wife’s mobile phone number was written on a piece of paper which was in the child’s bag each time she came to him, “in case of emergencies”.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The evidence satisfies me that it is probable that the child took some time to adjust and settle on each occasion she spent longer periods away from her mother. While I do not doubt that the husband had input into her day to day life while they were together, his own account of his involvement in family life demonstrated his detachment. He barely joined in family festivities on birthdays and at Christmas time; the sense he gave was of withdrawing from much of the warm and sometimes chaotic interaction of family life. I have no hesitation in finding that the wife was the child’s primary caregiver and nurturer, which is not to devalue the role of her father in her life.
I accept the mother’s evidence of the child’s unsettled behaviour in about May 2005 and, again, in first term this year. On each occasion the behaviour eventually settled, or at least diminished to a manageable point. Ms D spoke of four nights away from her mother as being a “significant block” and said that anything longer than that would tend to change the child’s concept of one primary home. Although the mother sought to reduce that to a three night block, she conceded that the significant behavioural problems exhibited earlier in the year have almost all resolved.
It was the husband’s evidence that none of the behavioural problems of which the mother spoke (including problems with sleeping, nightmares, clinginess, distress, reluctance to go to school on some days) occurred when the child was at his home. That may be the case. Although seeming paradoxical, this is not inconsistent with her strong reliance on nurturing by her mother and her strong feeling of security in her mother’s home. Ms D’s evidence was that a child may feel so secure in one home that she can exhibit stress and anxiety, through behaviour as well as words. It is likely that her sense of comfort and security in her mother’s home allowed her to express her anxiety at, in a young child’s terms, a significant change in a routine.
It is possible that the child’s anxiety has also been affected by very different parenting regimes. The mother’s evidence was that during the first term the child came to school on some Mondays with sleep in her eyes, unwashed and with her teeth not cleaned. On occasions she still wore her pyjamas under her school uniform and on at least one occasion smelt of urine. I accept that evidence.
The child did not turn seven until June. She is a child who is used to being the youngest in the family at home with her mother and siblings, and the subject of dedicated nurturing. The husband took the view that she was old enough to dress herself and attend to washing (save that he washed her hair on occasions). He said that there were “numerous times” she went to school from his home with her pyjamas under her uniform. Initially, he said he knew that because the child or the wife told him. He clarified that these were days when she went to school from his home. He did not deny her pyjamas had not been taken off but he either did not notice, or did not think it was important to get her to remove them and dress properly for school. The husband’s evidence was that “I pretty much insist she dresses herself” and that he told the child she “needed to concentrate”, on learning that she left his home with her pyjamas still on.
Similarly, on the one occasion (according to the husband) that the child wet the bed this year, the husband changed the sheets, gave the child a track suit to wear and sent her to the bathroom to wash and dress herself before coming back to bed. He did not check that she had washed, either then or the next morning when she dressed herself and went to school. In those circumstances it would not be surprising that she smelt of urine.
The Court is aware of the wide range of parenting styles and views about the autonomy appropriate to children at different ages. The husband would not be alone in his view that, at six or seven, a child should assume responsibility for what he or she wears and whether and how she or he washes, although many who shared that view might accept the need for a genuine supervisory parental role. However, it is likely that the environment is very different in the wife’s home and the imposition on the child of that additional responsibility alone could have contributed to the time it took her to settle into the extended periods with her father.
The husband’s evidence was that he had seen the child biting her nails at his place and also when he had picked her up from school. He said that “more than likely” its cause was some anxiety, but that he did not think the nail biting itself was of concern. I accept the evidence that the child does not bite her nails or chew her fingers at home with her mother; this is something that occurs when she is at home with her father and, according to him, around the time she is to be collected by him from school. Although he had been critical of the mother’s failure to get professional advice when the child first manifested behavioural problems in 2005, he himself sought no expert advice after reading of the child’s alleged behaviour in the wife’s affidavit or observing her nail biting. Asked as to whether he was concerned at what he learnt and might want to talk about it with someone, he said that “I would have got feedback from the teacher if she had a problem” and he did not see any point in seeing how the child was going with the Seasons for Growth program she commenced through school this year. He did support her attending that program, which was on an afternoon he picked her up from school, but he knew little about it.
I place weight on the evidence of Ms D that a block of more than four days would change’s the child’s concept of a primary home and that for her, a primary residence is very important. The child requires a primary base or home where her basic nurturing occurs. If her sense is of two quite separate homes she will not be able to integrate herself into once sense of identity, an important developmental goal. If she is to move between two homes in which there are different rules and expectations, and her relationships and emotional needs must be managed in quite separate ways, she may have trouble in developing into a girl with a strong single identity.
As Ms D noted in her second report, the risks for the child of a week about arrangement is that she herself would be required to manage the routine in emotional terms while experiencing two quite separate and fragmented lives.
I also place weight on Ms D’s evidence of the importance of the child’s relationship with her siblings and that these are very meaningful relationships from the child’s perspective.
Ms D’s evidence, which I accept, is that the current routine has not damaged the child or been detrimental to her. There is no evidence that the child’s relationship with her father has been compromised in any significant way by her current living routine; that was so when the first family report was prepared in 2005 and remained the case (when he was having more time with her) in 2006.
These factors militate against any significant change in the child’s present living arrangements.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parents live close enough to each other to enable the child to move relatively easily between homes and to attend school and medical clinic. It is probable the husband finds it difficult to acknowledge that it is not necessary for him to spend exactly equal time with the child in order to have a profoundly meaningful relationship with her. In effect, he computes the value of that relationship by reference to days and hours.
(f)the capacity of :
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The wife was critical of aspects of the husband’s parenting of her older children alleging he slapped the wife’s son hard over a minor incident and once “lost his cool” to the extent of picking the wife’s daguhter up, fully clothed, and holding her under a cold shower when she was reluctant to have a shower, when about eight. The husband cross-examined the wife about those incidents, putting to her that the son had been making a threatening gesture to her and that she had collaborated in the shower incident. She did not agree with those propositions. Nevertheless, these incidents occurred fairly early in the parties’ relationship when the husband was dealing with recently acquired step-children and were a long time ago. They are likely to be reflective of different parenting styles. As the husband put it, his style was “more direct” whereas the wife dealt with emotions rather than force, an analysis with which the wife agreed.
The wife also expressed concern about some of the food given to the child by her father and the state of his house, particularly the use of a couple of rooms to hold tools, timber and other objects once stored in a garage or shed. I accept the husband’s former brother-in-law’s evidence of the husband’s comment that he lacked the motivation to impose some order on the mess. It is likely the tools, wood and other items have now been put in the dining room and one of the bedrooms. The husband’s house may be messier than the wife’s and he may have different ideas about food preparation or serving, but I am not satisfied the child is put at risk by him in these respects. I am more concerned about his capacity to deal with her emotional needs.
Ms D’s evidence was that the wife was very child focused and, significantly, demonstrated an ability to separate her own emotional needs from those of the child. Her evidence was that it was difficult for the husband, at times, to understand, acknowledge or perceive what a young child requires to have her emotional needs met, and this was because he had difficulty in separating his own needs from hers. She saw his application for equal time (which prevailed until final addresses) as a need to feel validated as a parent.
In her first report Ms D noted that the wife was focused on finding a routine that best met the child’s social, emotional and educational needs overall. The husband was less focused on meeting the child’s needs as opposed to establishing a living routine that approximated shared care. When she saw the family again, almost a year later, this remained the case. She said the husband’s underlying approach did not appear to have shifted; he remained singularly focused on creating an “equal position” between the parents, without consideration of the possible destructive impact of that on the child.
In her first report Ms D noted the wife’s concession that she was anxious when the child was not with her and Ms D recommended some personal counselling. The wife accepted that recommendation and undertook that counselling; on being told that, Ms D said it confirmed her opinion that the wife had the necessary insights into her own behaviours.
I do note the husband amended his proposal to provide for one four day block of time and two additional overnight stays. I can infer that he took some note (albeit late in the stage) of Ms D’s evidence of the need for the child to have one primary residence and the recommendation that the block of time not be more than four days. The effect of his amended proposal would be that the child spent six nights with him a fortnight instead of seven, in three periods. He may not have realised that the arrangement would mean that the child never spent a block of four nights with her mother and sister, at least during school terms.
Pursuant to his final proposal the child would be with him from the conclusion of school on Thursday until the start of school the following Monday, a period of four nights. She would then spend Monday, Tuesday and Wednesday nights with the mother, Thursday night with him, Friday, Saturday and Sunday nights with her mother, Monday night with him, and Tuesday and Wednesday night with her mother. That is a very disjointed regime for a young child and it is hard to see how the child would gain a sense from it of a primary residence with her mother, as espoused by Ms D.
It is likely the husband is a little less attuned to the child’s emotional needs, particularly her more subtle need for comfort and nurturing. The wife had alleged that the child told her she was not allowed to ring her mother when she asked to do so. The husband agreed that there had been occasions when he had not let the child ring. He said that on 3 September this year the child rang her mother at 8:00 pm. and spoke for 20 minutes. That was after her bedtime and he decided he would not let her make any calls after bedtime in the future. Pressed about this, he spoke of wanting to stop the child using it as a ploy not to go to bed, but that was not at all the sense of his oral evidence.
I do have some reservations about the husband’s understanding of the reality of having a small child in one’s daily care for lengthy periods, including during school terms. He was adamant that he would be able to vary his working hours to deliver the child to school and pick her up. I cannot say whether he had considered the possibility of who would look after her if the school contacted him to say she was sick or on curriculum-free days, or on other days when children are not at school. He has spent little time at school on weekdays in the past, but has contributed to working bees on weekends.
The husband was questioned about why he had not bought another uniform for the child to have at his home, as discussed between the parties, and about purchasing uniforms for her in the future. His evidence was (this on the basis of her living each second week with him) that if she needed another uniform he would either have to find somewhere to buy one at the weekend, or get the wife to buy it and reimburse her. Asked why he could not buy the uniform at the school uniform shop, open on weekdays, he said that he had once tried to do that and, faced with the prospect of queuing for half an hour, decided that was “time I was not prepared to spend”. Looking after children on a fulltime basis involves being prepared to spend time doing necessary but dull things like that.
I place weight on Ms D’s evidence that the husband’s inability to deal with his own emotional needs makes it harder for him to deal with a child’s emotional needs, which has the potential to impact adversely on the child.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This may be a convenient place to consider the husband’s argument that the present arrangement (and any diminution of it) would mean the child was not exposed to sound male mentoring and, living predominately in what he called “a welfare household”, would not develop a proper attitude towards the importance of paid work.
When this was put to the wife she nominated a number of male role models in the child’s life, the first of whom was the husband. She referred to the child’s brother, male relatives, friends and teachers. The orders proposed by the wife, the husband, and the independent children’s lawyer would all result in the child spending regular and frequent time with her father. I am not satisfied that a dearth of male role models is a likely result. In particular, the child will continue to have a strong and meaningful relationship with her father.
Nor do I find substance in the husband’s complaint about the welfare home. The husband pays child support, as assessed, of about $360 per month. The step-children’s father paid (and presumably continues to pay for the wife’s daughter) child support, during the parties’ marriage and after their separation. Otherwise the wife supports the child and her other children on Centrelink benefits. Nothing in the evidence satisfies me that being brought up in those circumstances has any likely correlation with the child’s commitment as an adult to supporting herself, and probably others, through paid work.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Issues referable this have been discussed elsewhere
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
The husband did not agree with the wife’s account of feeling intimidated and frightened by some of his behaviour after separation and when they were in conflict over arrangements for the child. He did put to the husband’s former brother-in-law that when he became upset his voice rose, a proposition with which the brother-in-law agreed. It is likely there has been a good deal of tension around changeovers and it is certainly in the child’s interests for as many of those as possible to be at school or another neutral place. It is also vital that matters relating to her and, particularly, criticisms of the other parent (implied or expressed) are not made during changeovers. I do not otherwise find this sub-paragraph to be relevant now.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The husband initially sought an order requiring the parties to participate in mediation at “mutual expense” if unable to resolve disputes relating to the child’s day to day or long term care, and an order that they abide by any mediated agreement made. He agreed that mediation would not be a practical solution for every minor disagreement and I would certainly not be prepared to impose an order in those terms on a reluctant parent, even were the last part (requiring the parties to abide by any mediated agreement) deleted.
Ms D’s evidence satisfies me that the child’s best interests demand clearly stated orders to provide a framework within which the parties can operate. They can always agree to vary that framework. But if they are not in agreement a framework can ensure the stability and consistency which is necessary for the child’s emotional and psychological development.
(m)any other fact or circumstances that the court thinks is relevant;
The parties could not agree on appropriate orders to operate during Easter, the Christmas period or on the child’s birthday and the birthdays of her siblings. Again, they have very different views about the significance of these events.
The husband’s evidence was that he “tolerates” birthday and Christmas celebrations or tolerates the wife’s attitude to them. His evidence was of taking no part in actual birthday parties for the child, although he did once make a treasure chest to be used as part of a treasure hunt. He does not believe in having a Christmas tree, decorations or Christmas stockings and believes too much is made of both birthdays and Christmas. He said that if the child were with him, he would give her a present on Christmas Day. It was his evidence that the parties’ different attitudes to these celebrations were a source of tension during the marriage. He made it quite clear that, from his perspective, the wife had brought the children up with the misguided idea that these were events to be celebrated in fairly traditional ways.
Notwithstanding these views, and his advice to Ms D that it was not important whether he saw the child in the morning or the afternoon on Christmas Day, he sought orders which would mean the child was with him from Christmas Eve until the afternoon of Christmas Day in each alternate year. Asked why, he said that the wife had brought the child up to believe that Christmas should be celebrated and as the child thus thought it to be important, he should have the opportunity to spend that time with her. He was not, however, prepared to modify his disapproval of such things as trees, decorations and Christmas stockings in order to share those experiences with the child were she to be at his home on Christmas Eve. He said he enjoyed aspects of family celebrations and would take the child to his sister’s home but it must be said that the picture he painted would mean the child had a very different experience on Christmas Eve and Christmas morning than that which she has enjoyed for the whole of her life.
I have earlier referred to the husband’s response to the wife’s application that the child be able to spend time with her siblings and her on their birthdays. It is likely he saw little or no benefit to the child in spending this time with her siblings as he does not actively support or promote such celebrations.
The husband was initially critical of the wife for seeking a number of special issues orders but withdrew most of that criticism after Ms D gave evidence that, far from seeing them as indicative of a lack of trust, she saw them as conducive to the child’s welfare. I am satisfied that a few of the orders sought by the wife have more to do with her need for reassurance that the child is alright when away from her, than with the child’s actual welfare; I include in that category orders relating to detailed information to be provided about the child’s whereabouts on occasions. Nevertheless, most of the orders sought are sensible and practical and are the sort of provisions routinely seen in parenting plans.
I take into account the need to consider whether spending equal time with both parents would be in the child’s best interests. For the reasons expressed earlier I am not satisfied that would be the case. It is important that orders provide for her to spend significant and substantial time with the husband. The proposals of each party would meet the definition of those terms.
CONCLUSION
I am satisfied that the orders proposed by the independent children’s lawyer are those that are most likely to foster the child’s best interests. In terms of residence this would provide for the child to live with her father from the conclusion of school on Thursday until the commencement of school the following Monday and on each alternate Thursday night. The child will thus have the benefit of a four night block of time with her father and will have the intervening period broken in two by seeing him again after school, over night and until she goes to school in the morning.
Counsel for the independent children’s lawyer conceded that it was unusual to submit that a child should be with one parent on each Christmas Eve through to Christmas Day but, in his submission, an order in those terms would be in the child’s best interests. He said that the experience of the child at the father’s home would be very different to that available in the mother’s home with her siblings. I am satisfied that submission is sound. Orders will provide for him to spend time with the child on Christmas Day which will enable him to take her to his sister’s and enjoy whatever celebrations occur there, if he chooses to do so. Having heard what he said about Christmas, it is probable that the view he expressed to Ms D was genuine and it was not of great importance to him whether the child woke up at his home on Christmas Day or he saw her later in the day. In any event, I am satisfied the order proposed by the independent children’s lawyer is in the child’s best interests.
In relation to the siblings’ birthdays I do propose to make an order for the child to spend time with them without any provision for make-up time with the husband.
In relation to Easter I propose to order that the actual Easter weekend period be alternated between the child’s parents. In every second year she will thus be able to spend that time with her father and if he wants to take her on a cycling trip or other holiday then, he can do so. In the year she is with her father there may be less overt celebration, but she will get an Easter egg from him and if they are with others on a cycling trip, will enjoy whatever activities those other people have arranged for their children. In the alternate years she can spend that time with her mother, siblings and other friends and relatives.
The parties agreed that the term school holidays should be split equally between them. The husband was very concerned that there be no lengthy gap in the period between his last school term time with the child and his term holiday contact and I will do what I can to phrase orders to achieve his stated aim.
I am satisfied orders should provide for the mother to be able to spend a fortnight away with the child during the summer school holiday period. The husband’s evidence was that he would be unable to take advantage of any such provision now. The practical solution is to make orders which allow him to do that if his circumstances change, provided he gives notice. If he cannot do that the child will be with him for two periods of one week each in the school holidays, separated by her fortnight with her mother. It is not fair to the child to be deprived of a fortnight with her mother and siblings simply because her father cannot accommodate an equivalent period of time with her. The result will be that she will spend more of the summer holiday period with her mother, but I am satisfied that is in her best interests.
Whatever her earlier stance (there seemed to be disagreement about this) the wife confirmed that she would be content to use a communication book in the future, and I am satisfied that would be in the child’s best interests. It is not to be a vehicle for complaints or criticism but a way of communicating important information about the child, such as dates and times of appointments, current health concerns, and straightforward requests to vary times or dates set out in a court order.
I certify that the preceding
94 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2007.
…………………………………………
Associate.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Harris & Harris
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Procedural Fairness
0
0
1