ISH & KAT
[2005] FMCAfam 340
•6 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ISH & KAT | [2005] FMCAfam 340 |
| FAMILY LAW – Parenting – father seeks increased contact. |
| Family Law Act 1975 |
| B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 |
| Applicant: | ISH |
| Respondent: | KAT |
| File Number: | NCM 636 of 2004 |
| Judgment of: | Sexton FM |
| Hearing date: | 5 July 2005 |
| Delivered at: | Newcastle |
| Delivered on: | 6 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bates |
| Solicitors for the Applicant: | Boyd Wooi Olsen Lawyers |
| Counsel for the Respondent: | Mr Williamson |
| Solicitors for the Respondent: | Charlestown Lawyers |
THE COURT ORDERS ON A FINAL BASIS:
That all previous parenting Orders be discharged.
That the child, SLH, born 24 July 1996, reside with the mother and have contact with the father as agreed between the parties.
That the children, JAH, born 12 December 2002 and KH, born 28 February 2004 [“the children”] reside with the mother.
That the mother and father in consultation with each other have responsibility for making decisions for the long term care welfare and development of the children.
That each party have responsibility for the day to day care welfare and development of the children whilst in that party’s care.
That the children have contact with the father as follows:
(a)The children remain with the father until 6.00p.m on Saturday
9 July 2005.(b)From midday Friday 22 July 2005 until 6.00p.m Sunday 24 July 2005 and fortnightly thereafter for the same period until Order 6 (c) applies.
(c)From midday Thursday 29 September 2005 until 6.00p.m Sunday 2 October 2005 and fortnightly thereafter for the same period until Order 6(d) applies with the exception of the Christmas period when the children shall have contact with the father from midday 22 December 2005 until 3.00p.m 25 December 2005.
(d)From midday Thursday 19 January 2006 until 6.00p.m Monday 23 January 2006 and fortnightly thereafter until 1 February 2008 when Order 7 applies.
When JAH commences school, the children have contact with the father as follows:
(a)During school terms, each alternate weekend from 6.00p.m on Friday until 6.00p.m Sunday and substituting 6.00p.m for 7.00p.m in daylight saving time in respect of the conclusion of contact.
(b)For one half of each school holiday period being the first half in odd numbered years (from 9.00a.m on the first day after the last school day of terms 1, 2, 3 and 4 until 6.00p.m on the middle day of the school holidays) and the second half in even numbered years (from 9.00a.m on the middle day of the school holidays until 6.00p.m on the day preceding the day the children are required to commence school).
(c)At such other or alternate times as the parties may agree.
Weekend contact periods be suspended during all school holiday periods and resume after each school holiday period as though there had been no interruption to weekend contact.
For the Christmas period:
(a)In 2005 and each alternate year thereafter the children have contact with the father from 9.00a.m Christmas Eve until 3.00p.m Christmas Day, noting that the children will have contact with the father in 2005 in accordance with order 6(c).
(b)In 2006 and each alternate year thereafter the children have contact with the father from 3.00p.m Christmas Day until 7.00p.m Boxing Day.
That for the purposes of changeover on Christmas Day each year, the father shall collect the children from McDonalds Restaurant in the Western Sydney area at the commencement of contact periods and the father shall deliver the children to the same location at the conclusion of contact periods except in 2005 when the father shall deliver the children to the mother at McDonalds Restaurant in the Western Sydney area at 3.00p.m on Christmas Day.
That except as provided in Order 6 (c) herein, weekend contact periods be suspended to the extent necessary for the parties to comply with Order 9 during the Christmas period.
That in the event Father’s Day falls on a non-contact weekend, the children have contact with the father for the weekend period including father’s day in substitution for the next contact period.
In the event Mother’s Day falls on a contact weekend, the father’s contact shall be suspended and such contact shall occur on the following weekend.
That, subject to order (10), for the purposes of contact changeover, unless otherwise agreed between the parties:
(a)For a period of twelve months from the date of order, the parties shall collect and deliver the children to and from the McDonalds Restaurant on the Central Coast of New South Wales.
(b)Thereafter the parties shall collect and deliver the children to and from the McDonalds Restaurant in the Western Sydney area.
(c)This Order does not prohibit either party from arranging for a third party to transport the children for contact changeover if necessary.
After 1 February 2008, that the children have telephone contact with the parent with whom they are not residing on each Tuesday and Thursday between 6.00p.m and 6.30p.m with such contact to be instigated by the parent with whom the children are residing.
That both parties will ensure that the other party is kept informed of:
(a)Any significant medical event involving either child, whether illness or accident, including details of diagnosis, treatment and any medication prescribed.
(b)Any correspondence or reports from the school concerning either child.
(c)All special events in which either child is involved.
(d)Any other matter of significance relevant to either child’s welfare.
That each party be restrained from speaking or permitting any other person to speak to or about the other party or member of their household or family in a negative, offensive or unpleasant fashion in the hearing of any of the children.
That both the father and the mother be restrained from using alcohol to excess whilst the children are in their care.
That each party advise the other and keep the other advised of their current street address and contact telephone numbers, both landline and mobile, and advise the other party of any changes in those details within 7 days of any such change occurring.
That each party shall upon the written request of the other provide the name, addresses and contact numbers of any treating medical practitioner or other health professional and authorise such professional (whether medical or otherwise) to release to the other party the children’s medical or other records.
That upon each of the children commencing formal school the mother shall forthwith do all acts and things so as to authorise the school at which the children attend to provide the father with all information as to the child’s progress including but not limited to copies of school reports, photographs, notices, information sheets and circulars as to current events.
That the parties attend a post separation parenting program as directed by the Director of Mediation Services in the Newcastle Registry and each party to contact the Newcastle Registry within fourteen (14) days to arrange their attendance for intake at such a program.
That pursuant to section 65DA(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 and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
That the solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 636 of 2004
| ISH |
Applicant
And
| KAT |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for parenting orders in relation to two children of the relationship, JAH, born 12 December 2002 [“JAH”] and KH, born 28 February 2004 [“KH”]. The eldest child of the mother, SLH, born 24 July 1996 [“SLH”], is not the biological child of the father and the parties agreed at hearing that SLH would have contact with the applicant father as agreed between the parties.
The proceedings were commenced by the father who filed an Application on 9 March 2004. The father filed an Amended Application on 6 August 2004. Counsel for the father submitted a different Proposed Minute of Order at hearing. In essence, the father sought orders that the children reside with the mother and JAH and KH have contact with him from midday Thursday until midday Tuesday each alternate week until 1 February 2008 and thereafter each alternate weekend from 6.00p.m Friday until 6.0p.m Sunday and for half of each school holidays.
The mother filed a Response on 13 April 2004 opposing the orders sought by the father. The mother filed an Amended Response on
29 June 2005 seeking that the children reside with her and have contact with the father each alternate weekend from 9.00a.m Saturday until 5.00p.m Sunday.The parties agreed on all specific issues orders at the conclusion of the hearing, including orders for changeover, contact on Christmas Day and for school holidays.
Interim orders were made by consent on 14 April 2004 providing for the children to reside with the mother, SLH to have contact with the father as agreed, JAH to have alternate weekend contact for one night, KH to have 2 hours each alternate weekend until he was 12 months and then contact as between JAH and the father. These orders were amended but only as to changeover arrangements on 16 November 2004.
Both parties have sought Apprehended Violence Orders against the other and the proceedings are due to be heard later in July.
Both parties were represented by Counsel at hearing.
Background
The father was born on 3 November 1969. He is 35 years old.
The mother was born on 4 July 1973. She is 32 years old.
The parties commenced living together in June 2000.
There are two children of the relationship, JAH, born 12 December 2002 and KH, born 28 February 2004.
The father is self employed as a maintenance worker. The mother is not presently in paid employment.
The relevant law – parenting
Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the children as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering what parenting arrangements should be ordered, the court must make the order which it considers to be in the best interests of the children.
In deciding the parenting arrangements that will promote the best interests of the children in this case, the court must have regard to the factors in Section 68F(2) of the Act to the extent each subsection is relevant. I have dealt with the relevant subsections later in these reasons.
In B & B Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court said:
9.51In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s60B.
9.53The wording of s 68F(2) makes that clear – the Court “must consider” the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (l) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and no children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to Section 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in subsection (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in S68F(2) and to the overall requirement of S65E. The matters in S 68F(2) are to be considered in the context of the matters in S 60B which are relevant in that case. But Section 65E defines the essential issue.
9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.”
The issues
During the course of the hearing, the parties reached agreement in relation to residence and all specific issues orders. They also reached agreement as to the contact arrangements between the children and the father from the time JAH starts school, anticipated at this stage to be February 2008. The only question for determination by this court was the length of time the children should spend with their father between now and the time JAH starts school. The mother would agree to no more than one night per fortnight and the father wanted 5 nights per fortnight.
The matters relevant to this issue required consideration of:
·The nature of each child’s relationship with each parent.
·The likely effect of any change in the children’s circumstances.
·The practical difficulty and expense of a child having contact with a parent.
·The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs.
·The need to protect the children from physical or psychological harm.
·The attitude of each parent to the responsibilities of parenthood.
Evidence and findings
The father relied on:
·His affidavits sworn 26 August 2004, 12 November 2004 and 22 June 2005.
·The affidavit of his father, JH, sworn 12 November 2004.
·The affidavit of JS sworn 13 November 2004.
Mr JH and Ms JS were not required for cross-examination.
The mother relied on:
·Her affidavit sworn 29 June 2005.
Both parties tendered material that became exhibits in the proceedings.
The mother was pregnant with KH when the parties separated in October 2003. The mother remains angry with the father and their communication is strained and difficult. Neither party trusts the other. They are unable to consult with each other for the children’s benefit. There was evidence of the father through his solicitor, repeatedly requesting the mother to provide the children’s doctor with an authority to enable the father’s doctor to obtain medical information about the children. There was evidence of a number of letters between solicitors attached to the father’s affidavit evidence, repeating this seemingly simple request. It reached almost bizarre levels. There was no explanation as to why the mother refused to provide this authority. It was a rather sad example of the parlous state of affairs between these parties.
Both have openly displayed their frustration, disappointment, anger and sadness to each other and the high degree of acrimony between them has at times caused SLH and JAH in particular, considerable distress. Both parties complain bitterly about the other’s behaviour in their affidavits which detail countless incidents of what is perceived by each party to be inappropriate behaviour by the other. The father said that the mother has screamed abuse at him. The mother said she found the father rude, abrupt, demanding and his approach at times, threatening. Neither has sought professional help in relation to improving their communication. I am satisfied the anger, despair and frustration felt by each party has dominated their communication for a long time and they have both at times lost sight of their need to focus on their children rather than on each other. At the commencement of the hearing I suggested to the parties they might be assisted by attending a post-separation parenting program, and to their credit, both agreed to an order that they do so as soon as arrangements can be made. It is important the parties find ways to communicate their concerns to each other calmly, constructively and effectively so the children are no longer subjected to their conflict.
Since separation, JAH has lived with his mother and the mother’s daughter SLH. JAH and KH have had contact with their father in accordance with interim orders made in April 2004, although there have been difficulties with those contact arrangements, particularly in the first few months when the father was trying to exercise 2 hourly alternate weekend contact with KH. The father also complained of significant difficulties in attempting to exercise telephone contact. The mother complained of the father not always having contact in the early days after separation, when it was offered to him.
SLH has had little contact with the father, although she lived with him during the parties’ relationship and I am satisfied developed a close attachment to him. SLH has little if any contact with her biological father. On the basis of the father’s evidence, I am satisfied the father loves SLH and would like to continue to play a role as her father into the future. The mother had trouble conceding there was anything of value in SLH’s relationship with the father but I am satisfied this is not so. Although the parties both sought an order that SLH see the father in accordance with their agreement, an order I will make, I am hopeful that if the parties’ communication can improve, SLH might join her brothers on contact occasions with the father from time to time as it may well be of considerable benefit to her.
The parties lived together on a 40 acre farm in the Hunter Valley area during their relationship. The mother moved to the Central Coast of New South Wales soon after the parties separated to be closer to her family for emotional and physical support. She was pregnant with KH at that time and understandably apprehensive about the possibility of another birth by caesarean section. The parties now live about 2 and a half hours apart. The father is self-employed as a handyman and has flexible hours. The mother is not presently in paid employment and is dependent on social security for her support in addition to child support paid by the father.
Addressing the relevant section 68F(2) factors:
The nature of the relationship of the children with each parent.
There was no challenge by either party to the fact that the children have a close and loving relationship with each of them and I find accordingly.
The likely effect of any change in the children’s circumstances
There was no evidence to suggest the children would not manage a change in their present circumstances which involved an increased amount of time with the father. The father frankly conceded the children did not express excitement when they first saw him for contact visits but said they soon relaxed and spent their weekends happily together. The mother raised no concerns about the children being distressed when separated from her. It was not submitted that the children would suffer if separated from their mother for longer periods than is presently the case.
The practical difficulty and expense of a child having contact with a parent
The parties agreed that the father would bear the costs of travel for contact periods for the next 12 months. The parties agreed they would then share the travel equally between them. Given the distance between the parties’ homes, there will be limits on how much contact can be arranged once the children start school. However, as the parties also reached agreement on this issue, practical difficulties did not remain an issue in this case.
The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs
There was little dispute that both parents have the capacity to meet the children’s day to day physical and material needs, although the mother was critical of the father for delivering JAH after contact with splinters in his feet on one occasion. Neither party raised any issue in relation to the other being incapable of meeting the children’s intellectual needs. There was a question as to each parent’s capacity to provide for the children’s emotional needs. The mother gave the father no credit. She did not make a positive comment about him during the proceedings nor in her affidavit material. Mr Bates for the father submitted the mother’s emotional capacity to provide for the children’s needs is hampered by her lack of insight into the importance of the father in the children’s lives, and to her lack of insight into the impact of her conduct during these proceedings in relation to SLH. I agree with his submission.
I also agree with him that the mother lacks confidence in the father, does not trust him, does not feel she can rely on him, and is probably still adversely affected by the breakdown in the parties’ relationship.
I am hopeful the mother will be assisted by her attendance at counselling shortly. I find the mother’s life is focussed on the children, and, despite her present reluctance to accept any meaningful role for the father in the children’s lives, I am optimistic her position will change with professional help.The father supported the mother’s essential role in the children’s lives. The father agreed he had at times become upset and been less than responsible in his reactions, particular at changeover when he found the mother’s attitude in front of the children distressing. He agreed that on one occasion, when angry with the mother, he said he may not bring JAH back after contact. He said he always intended to bring JAH back and agreed his comment would have caused the mother unnecessary distress. However, I find the father has shown considerable insight into the inappropriate nature of some of his reactions, an important first step in ensuring such behaviour can be avoided in the future. I am satisfied the father has the capacity to provide for the emotional needs of the children.
The need to protect the children from physical or psychological harm
As I have already said in these reasons, there has been significant tension between the parties since separation which at times has erupted into violent abusive and intimidatory behaviour involving the parties. There were a number of examples.
There was ample evidence to support my finding that the father has been frustrated by the mother’s reluctance to cooperate with him in relation to his contact with KH before his first birthday. Both parties described the awful events of 4 September 2004 when the father arrived at the mother’s home to collect JAH and KH for contact. The mother refused to let the father take KH, because, she said, he had not provided any notice as the mother believed was required by the interim orders. In fact, there was no such order for notice, but there was a notation included in those interim orders. In any event, the father said he had given the required notice and approached KH to pick him up. On the father’s version, the mother screamed and swore at the father telling him to get out of the house. The mother called the police. The father deposed to the mother kicking him in the ankle causing him severe bruising requiring medical treatment. Both children witnessed this altercation, and JAH was crying. The father contacted the police himself and DOCS. On the mother’s version, the father punched her in the cheek or mouth and was abusive towards her. She denied kicking the father. The father’s father said he accompanied the father for contact changeover after the events of 4 September. He was present on the morning of 5 September when the mother said the father banged and yelled outside her home that morning. Mr JH denied the father had behaved in the way alleged by the mother. I am satisfied there was an awful altercation between the parties in front of the children on
4 September when the father’s level of frustration reached boiling point. I am satisfied both parties behaved reprehensibly and their behaviour was damaging to the children in a way impossible to quantify.
I am satisfied the parties have argued on many occasions at changeover and the children will have been adversely affected by these altercations. It is essential the parties learn to communicate effectively with one another for the sake of these very young children. They will have to associate for a long time to come. I was told both parties now seek apprehended violence orders against each other which is a clear indication of the parties’ need for professional help.
The attitude of each parent to the responsibilities of parenthood
The father acknowledged the importance of the mother in the children’s lives and the importance of speaking positively about the mother when with the children were with him. He properly acknowledged the mother’s strengths as a parent, and her role in successfully raising three delightful children. He gave his evidence in a calm and relaxed manner. I found him to be frank and careful in his responses in cross-examination and I accepted his evidence.
The mother on the other hand, was highly critical of the father and of his parenting style. She had nothing positive to say about him. She displayed a level of anger towards the father which she had difficulty controlling. She was inflexible in her attitude to parenting arrangements between now and when JAH starts school and, despite her agreement to weekend and half holiday contact after that time. The mother gave her evidence in a defensive and aggressive manner. Her answers were often unhelpful and at times silly. I did not accept her evidence about the date of the parties’ cohabitation, about the nature of the father’s relationship with SLH nor about her alleged concerns for the safety of the children when in the father’s care. I found her involvement of SLH in these proceedings inappropriate and of considerable concern. The mother instructed her counsel to use as an example of the father’s lack of parental responsibility, a gift by the father to SLH of a CD which contained a swear word in one of the songs [Ex 1]. I accept the father’s evidence which was not challenged that SLH knew the CD as the mother already owned it, and he was not aware it contained inappropriate language. I am not satisfied the gift of this CD is relevant in any way to the father’s attitude to the responsibilities of parenting, nor am I satisfied the mother holds a different view from mine.
The mother demonstrated very poor insight into the importance of the children building a strong, positive and loving relationship with their father and of how that might best be achieved. She was rigid in her view that there was no advantage to the children in increasing contact time with their father. The orders sought by the mother were a clear demonstration of her lack of insight into the importance of her children’s relationship with their father.
The father lives on a farm with lambs, sheep, a dog, chooks and wild life. He said when the children spent time with him in the Hunter Valley, they loved the sandpit and pottering about. JAH liked chasing the chooks and being with the dog. The children shared a room, [though there is another room when they want to sleep separately] and they slept and ate well. The father conceded that when he collected them for contact, the children were not initially enthusiastic about seeing him, but after a short time, they relaxed and enjoyed their time with him. The children are presently with him for a week and he said they were quite happy, showing no signs of concern at being away from the mother.
Parenting arrangements
The mother acknowledged the children need to know and spend time with their father, but she did not accept the children would benefit from more time with the father than a few hours on a Saturday and Sunday each fortnight.
There is no evidence before me to satisfy me the children will not benefit from a significant increase in time they spend with the father. There is considerable evidence to the contrary. I am satisfied the father has a lot to offer. I am satisfied he loves the children, wants a strong relationship with them and is committed to their long term welfare and is a capable parent. I am satisfied the father recognises the benefits for the children having strong relationships with both parents. I have therefore made orders for a gradual increase in the children’s contact with the father. I have taken into account the strong opposition to any change expressed by the mother. For about two months the children will see the father fortnightly for two nights, for a little over three further months they will see him for three nights each second weekend, and thereafter they will spend four nights each fortnight with him until February 2008. It is unfortunate that the distance between the parties will prevent that level of contact continuing after 2008. Should the parties in time move closer together, which would assist the children, it may be the children can see their father more frequently than provided in the orders I will now make.
I am satisfied in all the circumstances of this case, the Orders I have made are in the best interests of the children.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 6 July 2005
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