J and J - [2002] FMCAfam 97

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & J

[2002] FMCAfam 97

CHILDREN – Residence – best interests.

Applicant:

K L J

Respondent:

T S J

File No:

ZT 2878 of 2001

Delivered on:

2 January 2002

Delivered at:

Darwin

Hearing Date:

19 December 2001

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mrs Pack

Solicitors for the Applicant:

Legal Aid Queensland

Counsel for the Respondent:

Ms Pagani

Solicitors for the Respondent:

Wilson Ryan & Grose

ORDERS

That the children of the marriage, L S J born 8 December 1994; and

A L J born 7 August 1996 (“the said children”) live with the wife.
That the husband and wife have joint responsibility for the long term care, welfare and development of the said children.
That each parent have responsibility for the children's day to day care, welfare and development at all times when the children are in his or her care.
That in the event that the husband is living in a different district for city from that of the wife or if not living in reasonably close geographic proximity to the wife, the husband shall have contact to the said children as follows:
(a)for the half of the gazetted Christmas school holiday period in the location where the children are residing in each even numbered year, including Christmas Day and Boxing Day, and for the second half of the gazetted school holiday period in the location where the children are residing in each odd numbered year excluding Christmas Day and Boxing Day;
(b)for a further period of three weeks at a time or times to be agreed between the parties during other gazetted school holiday periods in the location where the children are residing;
(c)regularly by telephone on at least one occasion per week and on Father's Day, the father's birthday, and on each of the children's birthdays;
(d)at any other times as the parties may agree.
That in the event the husband is living in the same district, city as that of the wife or is living in reasonably close geographic proximity to the wife the husband shall have contact to the children as follows:
(a)on each alternate week-end from 5.00pm Friday until 5.00pm the following Sunday;
(b)for the first half of the gazetted Christmas school holidays in the location where the children are residing in each even numbered year and for the second half of the gazetted school holiday period in the location where the children are residing in each odd numbered year with the husband and wife to have Christmas Day contact as follows:
(i)with the husband in even numbered years from 3.30pm on 24 December until 12 noon on 25 December and with the wife from 12 noon on 25 December until noon on
26 December;
(ii)with the husband in odd numbered years from 12 noon on 25 December until noon on 26 December and with the wife from 3.30pm on 24 December until noon on 25 December.
(c)the children shall spend Mother's Day with the wife, and Father's Day with the husband.
That in respect of the contact referred to in orders 4(a) and (b) hereof the wife shall pay the cost of two return air tickets for the children from the place of residence of the children to the place of residence of the husband such tickets to be the cheapest readily available on 21 day advance purchase.
That the husband and wife each advise the other of any change of residence or telephone number within five days of any such change.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

ZT2878 of 2001

K L J

Applicant

And

T S J

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings, the Court is asked to determine competing applications for parenting orders in respect of two children, L S J, who was born 8 December 1994, and A L J, who was born on 7 August 1996. The children are thus presently 7 years and 5 years 4 months old, respectively. The parties to the proceedings are the parents of these children, their mother K L J (hereinafter referred to as “the wife”), and their father T S J (hereinafter referred to as “the husband”).
The wife is the applicant in these proceedings. She filed her application in the Court on 8 August 2001. The orders she seeks from the Court are set out in her Outline of Case Document, and are as follows:
1)That the children, L S J, born 8 December 1994; and A L J, born 7 August 1996 reside with the mother.
2) That the father and mother have joint responsibility for the long term care, welfare and development of the children.
3)That each parent have responsibility for the child's day to day care, welfare and development during such time as the child is in his or her care.
4)That without limiting the parental responsibility of each parent pursuant to paragraph 4 of this order, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the children. For the purpose of these orders a significant parenting issue is:
a)any medical or health matter concerning the children;
b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the children.
c)matters relating to the education of the children including, but not limited to the choice of school and curriculum and the provision to the other parent of all school reports, school photographs, and all communications from the children's school other than with respect to routine or administrative matters.
d)disciplinary matters other than of a trivial nature.
e)matters concerning the social development or sporting activities of the children.
f)matters concerning the religion or faith of the children.
g)the place of residency of the children and telephone number for contact with the children including any change thereof.
h)any intended change in the surname by which the children are commonly known from that which appears on the children's birth certificates.
i)generally any matter regarding the children in respect of which a parent should be informed of or consulted with having regard to provisions of part 7 of the Family Law Act 1975.
5)That the father have telephone contact with the children at all reasonable times.
6)That the father have contact with the children from 5.00pm Friday until 5.00pm Sunday each alternate week-end when the father resides within the same district as the mother and children.
7)That the father shall have contact with the said children at all reasonable times as may be agreed upon between the parties and specifically as follows:
Awhen the father is resident in the same district as the mother and the children:
(a)on each alternate week-end from 5.00pm Friday until 5.00pm Sunday;
(b)for half of the Queensland gazetted March/April, June/July, September school holiday period in each year;
(c)for the first half of the Queensland gazetted Christmas school holiday period in each odd numbered year and for the second half of the Queensland gazetted Christmas school holiday period in each even numbered year with Christmas day contact:
i.    from 3.30pm on Christmas Eve until 12 noon on Christmas Day in odd numbered years with the mother to have the children from 12 noon Christmas Day until 12 noon Boxing Day; and
ii.    from 12 noon on Christmas Day until 12 noon Boxing Day in even numbered years with the mother to have the children from 3.30pm Christmas Eve until 12 noon on Christmas Day;
(d)that the children shall spend Mother's Day with the mother; and Father's Day with the father;
(e)that the father shall have contact with the children for a period of not less than four hours on the children's birthday. In the event that the children's birthdays fall on a school day the father shall have contact with the children for not less than two hours at such times as may be agreed between the parties;
Bwhen the father is resident elsewhere:
a.   for the whole of the Queensland gazetted March/April and September school holiday period in each year;
b.    for the first half of the Queensland gazetted school holiday period in each odd numbered year including Christmas Day and Boxing Day and for the second half of the Queensland gazetted Christmas school holiday period in each even numbered year, excluding Christmas Day and Boxing Day;
c.   that the mother shall arrange for the children to telephone the father on the father's birthday and Fathers Day, which such calls to be made at the mother's cost;
d.   that the father collect and return the children from and to the mother's residence at the commencement and conclusion of each period of contact.
8)That the father and mother each advise the other of any change of residence or telephone number within three days of such change.
9)That travelling expenses associated with any period of contact exercised with the father be borne by the father.
The husband is the respondent in these proceedings. He filed his response to the wife's application on 7 September 2001. He seeks the following orders:
1)That the application filed 8 August 2001 be dismissed.
2)That the children of the marriage, L S J, born 8 December 1994; and A L J, born 7 August 1996, reside with the husband.
3)That the husband and wife have joint responsibility for the long term care, welfare and development of the children.
4)That each parent have responsibility for the day to day care, welfare and development of the children during such times the children are in his or her care.
5)That the wife have contact with the children at all reasonable times as agreed between the parties including regularly by telephone and for one half of all school holiday periods.
6)For such further or other order as this Court deems fit.
7)That the wife pay the husband's costs of and incidental to this application.
In his affidavit, filed on 12 December 2001, at paragraph 76 the husband has elaborated on those orders and he says as follows:
“ I seek an order that L and A reside with me. I propose that K have contact with the children as follows:
1)     by telephone at my expense one week, and K's expense the following week, that is telephone contact at least once per week. I have no difficulty with twice weekly telephone calls.
2)     If K resides with Mr P in the Northern Territory in 2002 at least two school holiday contact periods with K bearing that cost as she will not be paying child support although I will attend to practical arrangements in Sydney, such as taking the children to the airport.
3)     Should Mr P be transferred to Richmond RAAF Base or around the Sydney area contact, at least, as often as each alternate week-end from Friday afternoon until Sunday afternoon and at other times as agreed including for one half of school holiday periods and for birthdays, Mother's Day, etc.”
Those are the positions of the parties at the outset of the proceedings before me in Townsville.

Background

The wife was born on 11 June 1970. She is not presently in the paid workforce. The husband was born on 16 June 1965. He is a corporal in the Royal Australian Air Force. By trade he is a motor mechanic. He has been in the RAAF for 20 years. The parties married in Pitt Town, New South Wales, on 18 September 1993. L and A are their only children. The parties came to Townsville in 1997. The parties finally separated on 26 January 2001. The marriage between them has not been dissolved.
The two children concerned are in good health. L, in 2001, was in Grade 2 at R State School; and A last year attended pre school at R.
The parties separated earlier in late September 2000 but resumed their relationship in late November 2000. During this first separation the wife left the matrimonial home, the children went with her.
In May 2001 the wife commenced a serious romantic relationship with W K P. Mr P is a spray painter, who is currently a member of the RAAF. He is presently based at the RAAF Base at Tindal near Katherine in the Northern Territory. The wife and Mr P are engaged to be married. They became engaged in July of this year. They plan to marry in March of 2002. Mr P has been previously married. He has two children from his earlier marriage. These children are aged 5 and 4. They live with their mother in Caboolture in Queensland.
If the wife is successful in her application she will move, at least initially, with the children to Tindal in the Northern Territory and she and the children will live there as a family with Mr P. The husband has not re-partnered. He has successfully applied for a transfer to the RAAF Base at Richmond outside of Sydney. If he is successful in his application he and the children will move to Richmond in the early part of this year 2002.
Accordingly, which ever party is successful it will mean a geographical change of residence for the children. There will be major implications as far as the other party's contact to the children is concerned. Mr P, in his evidence, indicated that in the long term he wishes to be posted to either Richmond or Amberley RAAF Bases. There is no guarantee of this, however.

Events from separation until November

As I have already indicated, the parties finally separated on 26 January 2001. The husband alleges that at separation the parties agreed that they would divide responsibility for caring for the two children between them on a 60/40 per cent basis with him having responsibility for the care of the children for the majority of the time.
Following separation the parties had a joint appointment at Centrelink on 2 February 2001. The wife signed a form there to indicate that the husband was the primary carer of the children. She applied for a Newstart Allowance. It is common ground between the parties that they tried initially to separate under the one roof. This was not successful, primarily due to the husband's concerns about the wife's socialising.
The husband acknowledges that he requested that the wife leave the former matrimonial home by 9 February 2001. As a result he paid a bond and two weeks rent on a flat she had chosen. The flat was near to the former matrimonial home. The wife left the former matrimonial home in mid-February. She was in receipt of Social Security payments.
It is common ground that the children remained living in the former matrimonial home. The husband continued to work. His hours were from either 7 am or 7.30am until 4.00pm on Mondays to Thursdays, and until 3.00pm on Fridays. He did not work on the week-ends. As a result of the husband's work commitments the wife cared for the children each morning before and after school at her flat. The children are dropped off to the wife early in the morning by the husband before his work, and collected by him in the evening. The children also say overnight on Tuesdays and Thursday evenings with her.
Initially, the wife did not have any weekend contact to the children. She brought an interim application before the Court on 10 September 2001. The parties were able to agree in respect of arrangements for the children pending final hearing of the matter as follows:
1)The children of the marriage, L and A, reside with the father.
2)That the mother have contact with the children at all times as may be agreed between the parties but in particular:
a)each alternate week-end from after school and pre school respectively on Friday until the commencement of school and pre school on the next Monday with the mother to collect the children from R State School and to return them to that school to commence Friday, 14 September 2001;
b)each alternate Wednesday from after school and pre school Wednesday until the commencement of the school and pre school the next day commencing 26 September 2001 with the mother to collect the children from and return them to the R State School;
c)the father shall give the mother the option to care for the children before school from 6.30am and after school until 4.30pm each afternoon, and in respect of A, during the school day from 4.30pm on Tuesdays and Thursdays.
d)for the first half of the September 2001 holidays and the first half of the Christmas 2001 school holidays, with the changeover on each occasion to be at 9.00am Saturday.
3)The children shall reside with the father at all other times including the second half of the September and Christmas school holidays in 2001.
On 17 May 2001, the husband told the wife he had been successful in his application to be transferred to the Richmond RAAF Base. His evidence was that he had made his application at the end of April, some three months after the parties had separated and prior to the wife commencing her relationship with Mr P.
From his brief background of facts, it is clear that since separation both parties have had significant involvement with L and A. It is also clear that the proposals of both of them will involve significant changes for the children and it will no longer be possible for the children to have regular face to face contact with both their parents. Richmond is many thousands of kilometres from Tindal, and as a result contact will be a considerable problem. As I have already indicated the wife and Mr P, in their evidence, indicated a wish to move either to Richmond or somewhere closer in future.

Issues

The significant issues which must be resolved by the Court would seem to be the following:
·the wife alleges that the husband is domineering and controlling. It is her position that the current position in respect of the children has been foisted upon her for the husband's convenience, particularly his financial convenience.
·It is said by the wife that the husband wishes to minimise or obviate any need to pay child support, and for that reason, from a position of financial superiority, imposed the original 60 per cent/40 per cent caring arrangement on the wife. Accordingly, the wife says, in essence, that the husband puts his own financial needs and convenience before the needs of the children.
·It is the husband's position, on the other hand, that the wife has difficulty in managing the children on a day to day basis and attending to their physical and emotional needs. He contends that he is the more stable parent. He is very critical of the wife, particularly, in respect of her conduct following separation. He also contends that, at least, in the initial stages of the separation the wife was not interested in caring for the children preferring to pursue her own social interests.
·It is the wife's position, that although at present the children spend more nights with the husband, she is, in reality, their primary carer, and was throughout the marriage.
·It will be necessary to compare the proposals of the husband and wife for the future care of A and L, and in particular, the role Mr P will play as far as the wife's proposal is concerned, and in the husband's case, how he will cope without the ability to call upon the wife for assistance in respect of before and after school care and in regards to any other emergency situations which may arise when he is at work at Richmond. It will also be necessary to contrast the proposals the parties each have for the other's contact to the children in the context of what will be their distant geographical circumstances from the early part of this year.

Evidence

The wife relied on the following affidavits filed on her behalf:
a)of herself, sworn on 29 November and 17 December 2001;
b)of W P, sworn on 28 November 2001;
c)of D J, sworn of 16 December 2001.

The husband relied on the following affidavits:
a)of himself, sworn 11 December 2001;
b)of J B, sworn 13 November 2001;
c)of S M, sworn 7 November 2001;
d)of C C, sworn 20 November 2001;
e)of A H, sworn 22 November 2001.
Each party was represented by counsel, and in the wife's case, she, Mr P, and Ms J, were cross-examined by counsel for the husband. In the husband's case, he and Mr B, were cross-examined by counsel for the wife. In particular, both the husband and wife were extensively and skilfully cross-examined.
As a result of the evidence I have, no doubt, that both parties love L and A, very much and each has their best interest to heart. As people, however, they have very different personalities. In my opinion, the husband is punctilious and precise. In my view, it is a telling factor that he kept a diary following separation in which he noted significant events regarding the wife and her interaction with the children. All his observations of the wife are essentially negative. He has nothing positive to say about the wife's ability to care for these children. It is very much his position that he is better placed to care for the children than the wife is. It is the husband's position that the wife is neither interested nor emotionally equipped to care for the children.
The fact remains, however, that the wife has had a significant degree of involvement with these children and that her involvement has increased, not decreased, since separation. The wife was compelled to institute proceedings to gain more time with the children.
Notwithstanding the consent contact orders of September, the artificial nature of the care arrangements of the children remained. I say artificial in the sense that the husband was still able to contend that on an arithmetical basis, at least, that he had the care of the children for the majority of the time. I have no doubt that he was in a position of financial ascendancy following the separation. He remained working full-time. He paid no child support. Because of the ready availability of the wife, he did not have to pay babysitters or child care. He remained in control of the family home.
In my view, to a large extent, he imposed the care arrangements for the children on the wife. I have no doubt that the primary reason this particular arrangement was imposed was to suit the husband's financial convenience. As I say he is a precise and exact person. I do not doubt that he was aware of all the financial implications which flowed from the arrangement.
The wife, on the other hand, did not strike me as a particularly methodical person. She has a quick temper and admitted as much. However, it did not seem to me that she was a particularly forceful person. Certainly, not in the sense that she would readily argue her case with someone. It seems to be that when confronted with conflict she would initially flare up and then subside in silent resentment. Counsel for the husband described her as petulant, and with this description I would agree.
Accordingly, in the circumstances, I readily accept that the husband was able to manoeuvre the wife out of the house. In this regard, it is telling that the husband was the major force behind the appointment at Centrelink to which I have already referred. After all, he had the most to benefit from the appointment. The wife has gone along with the before and after school arrangements, albeit with some resentment about being used as a babysitter by the husband as characterised by the note attached to the husband's affidavit. A resentment which I can understand given her position of financial inferiority to the husband.
However, it has been her position, certainly since the filing of the interim applications, that she wanted more contact not less. She has gone along with the husband's arrangements in order to maintain her contact with the children.
The wife did not behave particularly maturely after separation. She went out at night with her friends, and a formed a number of brief liaisons with members of the opposite sex. In my view, there is little evidence, if any, to suggest this behaviour has had any detrimental effect on the children. It may be irresponsible, but it did not expose the children to harm.
It is not my place to make moral criticisms of the wife in such circumstances, otherwise than to say, in my view, she was responding to the end of the marriage and, at least, in the initial period of the separation, she was motivated by her desire to get out of the house and away from the husband. I accept that since she has met Mr P she has curtailed her socialising at attendance at nightclubs.
I have no doubt that the separation of the parties was traumatic for each of them and was no less traumatic for the children concerned, particularly, L. In his affidavit, the husband was able to catalogue each incident when the children indicated they were unhappy to stay overnight with their mother. He did concede in cross-examination that there had been no such incidents since June of this year, at which time the wife seems to have become more stable in her personal life after meeting Mr P. Both parties concede that L's behavioural problems have settled down of late.
I have no doubt that in the earlier stages, moving from the father's to the mother's household, and back again, was an unsettling experience for the children. As I have said, the husband applied for a transfer to the RAAF Base in Richmond in late April 2001, some three months after the parties had separated and after, and I have found, he has secured for himself an advantageous financial position over the wife, and as it seemed to him, a strategic advantage over her in regards to the children.
He had only been posted to his present position in Townsville since January 2001 at that stage. At that time, the wife had no firm plans to leave Townsville. Her position was that she wanted more, not less, contact with the children. In my view, an inference can be drawn from the husband's conduct that he wished to place the mother under pressure in regards to her relationship with the children. He conceded this in his evidence.
As I have said, the husband is able to catalogue each incident of difficulty the mother has had with the children. I accept the proposition of counsel for the wife that in the situation of high level of tension and mistrust between them, the parties have allowed these very young children to determine, on a daily basis, at least in the early stages of the separation, where they would spend the night. In so doing, the children have played their parents off against each other. Either tacitly or directly, the husband has sought to take advantage of this. His aim has been to put the wife under as much pressure as possible.
As I have said, the parties are very different in character. The husband is well organised and meticulous. He is to be given credit for his 20 years of service in the RAAF. He has risen through the ranks and his transfer to Richmond will result in him being promoted to Sergeant. In his evidence, the husband deposed that if successful in his application for residence of the children, and if unable to meet the needs of the children because of his work commitments to the RAAF, that he would seek a discharge from the RAAF. He has attended a re-settlement seminar in this regard.
In my view, in spite of this evidence, the husband is extremely committed to his job and career in the air force. He says as much in his application for posting. Thus far, with the major assistance of the wife, he has been able to keep working without any reduction in his hours of work. He puts forward no proposal as to what he would do if he left the RAAF. He is still young, in his mid-30s. On balance, I think it unlikely that he will immediately leave the RAAF or leave the RAAF in the near future. It is the only life he knows after all.
As I have found the wife behaved somewhat immaturely following separation. It seemed that she was hell-bent on securing another relationship as soon as possible. She first met Mr P in late 2000, however, their relationship blossomed in May 2001, only a few months after she had separated from the husband, and at the time when care arrangements for the children can only be described as fluid.
At the time Mr P and the wife began the relationship he was stationed at RAAF Tindal. To a large extent their relationship has been a long distance affair. Mr P was in Townsville in May attending an exercise and staying with his mother. In June, Mr P took leave for two weeks and came to Townsville. The wife and he then went for a holiday in the Brisbane area, visiting Mr P’ children in Caboolture. The wife has spent four weeks in Tindal, staying with Mr P in his quarters in the single man's accommodation. The children did not accompany her.
Late in August/September, Mr P returned to Townsville and spent a further period of three weeks in Townsville. He spent time with the wife, and L and A. He and the wife bought a car together. I accept that given their circumstances, the wife and Mr P have spent a good deal of time together, however, the fact remains their relationship is a recent one.
I accept the sincerity of their feelings for one another, however, they have not, as yet, settled down to the reality of married life with, as they hope, two children. On any view, Mr P’ involvement with the L and A has been limited and has taken place in a holiday atmosphere. In my view, their relationship is as yet untested, and Mr P’ limited involvement with A and L on a normal day to day basis is a cause of concern to me.
I found Mr P to be a credible witness. I accept that he feels deeply towards the wife. He rejoined the RAAF in October 1999. He has been posted to Tindal for about two years. In his evidence, he indicated his wish to be posted to Richmond at some time in 2002. This would be some distance away from the current place of residence of his two children but no where near as far as Tindall. I accept that he has placed Richmond as his first posting in his application made to July 2001. However, there is no certainty that he will gain this posting. The possibility of his being posted to Richmond is problematic.
In my view, the wife and the husband living in the Richmond is by far the best option for L and A, but as I have said, there is no guarantee that this will take place in the future.
It is also apparent to me that in the event that the wife is granted residency of L and A, and moves to Tindal with Mr P and as a result the wife is occupied in the full time care of the children, she and Mr P will be placed under a deal of financial pressure. Mr P concedes that he has not worked out his finances down to the last cent nor have he and the wife ascertained in any final sense how contact arrangements would work, not only for the husband having contact to L and A, but also how Mr P would have contact to his own children in either Caboolture, Tindal or in Sydney. These contact arrangements pose considerable future logistic problems.
Much was made of the credibility of Mr P and the wife in respect of a number of issues, namely, the fact that the wife has spent time during a holiday with Mr P living in his single accommodation at the RAAF Base at Tindal; the fact that Mr P and the wife have indicated that they have the residence of A and L in their application to the RAAF for married accommodation at Tindal; the fact that the wife indicated a date in December 2000 as the date of the separation from the husband is an application for divorce, although in reality, the date of separation was in January 2001.
In my view, none of these matters affect my view that fundamentally Mr P and the wife are truthful witnesses. The fact that the wife and Mr P lived together on her holiday in his single accommodation appears to be a technical transgression of regulations that has not unduly concerned the authorities. In my view, it has no bearing on the children in any event.
I accept the wife's evidence that her application for divorce contained calculations of the separation date as to include the earlier period of separation. Finally, in applying for housing for themselves and the children in Tindal prior to the making of the final orders in this matter, the wife and Mr P were doing what the husband had done in respect of his application for accommodation at Richmond, and in my view, not a great deal turns on that.
In my view, it is obviously an important factor that in the event that a residence order is made in favour of the wife that she and Mr P have suitable accommodation in Katherine, and in my view, it was important that the evidence of this should be before the Court.
The wife deposed that if granted the residency of L and A, she will not seek to join the paid workforce, but will remain at home to care for the children. This will, of course, mean a high degree of dependency on Mr P’ wages. I accept her evidence in this regard. It is, after all, the situation that prevailed during her marriage to the husband. One, if not the central issue in this case, is who of the parties has been the principal carer of the children both before and after separation.
The wife deposes that she has a strong emotional bond with the children. Under the current arrangements she has the children before and after school each day. They stay overnight with her each alternate week-end and on Tuesday and Thursday nights. As a result she contends that she is the principal carer of the children, although they actually spend more nights in the care of the husband. It is also her case that during the marriage, that when the husband was necessarily at work, she cared for the children.
In his affidavit of evidence the husband deposed as follows:
“I collect the children from K's home in the afternoon after I finish work, and this is usually between 4.00pm and 4.30pm. When we arrive home I play with the children, read to them, ensure they change out of school clothes, and I prepare dinner. L does not have any significant amount of homework, but I help him with what he has. I read to the children prior to their going to bed at 7.30pm.
In the mornings I get the children out of bed and ensure that they are ready for school, including that I prepare their lunches. I do not dress the children in their school uniforms although they are washed and ironed by me. I prepare breakfast and then I take them to K's home, accept on alternate Thursday mornings when they have stayed with K on the Wednesday night.
When the children are with me on week-ends I spend as much with them as possible, and this is usually the whole of the week-end. I do not go out socially except with the children, except if there is a work social commitment which has only been once or twice this whole year. The whole focus of my time at home is with the children. As I spend the whole of my time with the children, I have not had to avail myself of any other babysitter.”
He deposed further:
“ On 26 January 2001, K informed me that our marriage was over, that she couldn't handle the children, and that she didn't love me, that she wanted to go out whenever she wanted, and that she shouldn't have to ask my permission as I'm not her father. She informed me that she had no romantic intentions towards me or anyone else. After these conversations we agreed, at K's suggestion, to stay under the one roof as separate people, and that I would have 60 per cent custody of the children and she would have 40 per cent custody. This was so. K would have the children whilst I was at work or involved in work commitments, and that once I knocked off work she would come and go as she wanted.
I do not accept that the children have an emotional bond with K. I say that this bond is not as strong as the one they have with me, apart from the various relationship which K immediately separation, and her telling me that she could not cope, that the children were upset and were missing me, K has, in fact, had to ask on a number of occasions for me to take the children as they did not stay with her.
That during the marriage he was predominantly the carer of the children when he was at home.”
He denies categorically that he is motivated by the issue of child support in respect of his application.
In support of his position the husband called evidence from J A J B. Mr B was an impressive witness. He is a Sergeant in the RAAF and works as a colleague with the husband. He has seen both parties with the children in a social setting. He said that it was his observation that the wife took a backseat in regards to the parenting of the children and that the husband took a lead role in respect of the children's care.
The fact remains that the last time Mr B saw the husband with the children was two months ago. He has seen the husband with the children in all on about six occasions. He has not been a visitor to the parties' home during the time they were married. His only dealings with the parties was in a social setting.
The wife called D J in support of her position. Mr J has been a friend of the wife for the last 10 years. They are close friends and speak to each other nearly every day. Ms J was a companion for the wife on her social outings to nightclubs in Townsville after the parties separated. In her affidavit, Ms J deposed as follows:
“I have no hesitation in indicating to the Court from my observations over the years, that both T and K were good parents and love their children dearly. I have, however, disagreed from time to time over aspects of their parenting techniques. I can recall on occasions seeing both parents allow their children to get away with things that I believe they should not have and should have been reprimanded, and on the other hand, the children having been reprimanded for things that they have done which I thought that did not need such attention. Nonetheless, the children are fairly good children and that is as a result of the parenting of both parents.
I recall that over the years T has made no secret of the fact he refused to allow K to work when they had the children. He indicated to her and to others, including myself, that it was his view that the mother should be the full-time carer of the children. In consequence he demanded the home be kept spotless, the children properly cared for, and I observed him to appear to have the view that there was a place for everything and everything in its place. I have difficulty in understanding T's stance now given his previous stance with respect to the children needing to have a full‑time mother/carer.”
Ms J deposed further as follows:
“ It was obvious to me that K was the principal carer for the children. In general conversation she has indicated to me her concerns for the children's health and the children's illnesses and treatment.”
Ms J was a down to earth witness. She conceded that she had been out until the early hours of the morning with the wife in the period following separation. She gave evidence of some of the wife's liaisons after the end of the marriage. It seemed to me that she had no axe to grind. It seems to me that her evidence, on balance, is most likely to reflect the true position that both parties were good parents who loved their children and who both had substantial input. However, it was the wife who was the principal carer of these two children during marriage. A finding that would follow from the traditional division of their roles during the marriage, the husband being the breadwinner and the wife remaining at home.
Since separation, in what I regard as difficult circumstances, the wife has continued to have significant involvement with the children. I do not accept the proposition that she is not interested in having the care of the children. or that she has any significant difficulties in providing for their care. The fact remains that the husband was content to allow the wife to have significant contact with the children following separation albeit that he retained the upper hand.

The law

The application of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare, and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include:
“Except where it would be contrary to a child's best interests:
a) children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married, or have never lived together and;
b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare, and development and;
c)parents share duties and responsibilities concerning the care, welfare, and development of their children and;
d)parents should agree about the future parenting of their children.
In the present case, regrettably, the parties are unable to agree about the future parenting arrangements for L and A.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the children concerned as being the paramount consideration in the making of any determination concerning the care of the children.
In deciding the parenting arrangements that will promote interests of their particular child, the Court must consider the various matters set out in section 68F(ii) of the Family Law Act. The various sub sections contained in section 68F(ii) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph l permits the Court to take into account any other fact or circumstance that the Court thinks is relevant.
This ensures that the infinite variety of individual children's circumstances can be addressed in any orders made by the Court, and in this regard I refer to the case of: B v Band the Family Law Reform Act (1997) FLC 92 755.
I now turn to consider each of the matters listed in section 68F(2) in the light of the evidence and the future proposals of each of the parties:

(a)The wishes of the children

L is 7 and A is 5. They are children of tender years. There is no family report available to assist me in this matter. Clearly, as the children are still young their wishes should not be a given a high degree of emphasis.
The only evidence that the children have expressed any preference as to where they wish to live has come from the husband, and has occurred in the context of discord between the parties. As result those wishes can be discounted. In my view, the wishes of the children are not a relevant consideration in this matter.

(b)The nature of the relationship between the children and their parents and other significant persons

In this regard I accept that both parties enjoy a close and loving relationship with both children. As I have found, both have been significantly involved with the care of the children, both before and after separation. In spite of a high level of mistrust between them they have been able to manage what, in my view, amounts to a joint care arrangement in respect of the children.
On the evidence before me, the children have adapted to this arrangement, albeit that L, in particular, had some initial difficulty with it. A difficulty that has resolved as time has gone on. The parties are each to be given credit for being able to manage this joint care arrangement in what much have been difficult circumstances at time.
The central difficulty of this case, is that both the husband and the wife are good and loving parents who are each significantly involved with the care of L and A, but by reason of the separate plans each of them has made for their future, it is inevitable, no matter what order the Court makes, that one of them will have significantly less contact with the children than he or she currently enjoys, at least in the short term period of the next six to 12 months. Sadly there is no answer to this dilemma.
However, as I have found, the wife was the primary carer of the two children prior to separation, and has continued to be significantly involved after separation in spite of the husband's wish to sideline her in this regard. This is an important matter.
There is little evidence of the nature of the children's relationship with Mr P. As I have found his relationship with the wife is still in its nascent form, and as a result the children's exposure to him has been limited. However, there is no evidence to indicate that Mr P has a detrimental affect on the children. To the contrary, the evidence seems to be that the children have enjoyed spending time on holiday with him, and that as far as the evidence goes, he enjoys a positive relationship with them. I have no reason to believe that the children will not adapt to him.

(c)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from his or her parents

As I have said the proposals of each of the parties necessarily involved fundamental changes for L and A, and must involve them being separated from one of their parents, apart from periods of holiday contact, for a period of between six or twelve months. This period being dependent on the success of Mr P in his application for a transfer to Richmond, a matter still shrouded in doubt.
The children will go from a situation where they see both their parents on an almost daily basis in a domestic situation to one where the only face to face contact will be in school holiday periods separated by periods of several months in duration. As is obvious, there is no way for the Court to ameliorate this invidious position. For quite justifiable and legitimate reasons, both the husband the wife have chosen to leave Townsville.
If the children go with their mother and Mr P to Tindal, this will be a great change in their circumstances. Similarly, if they go to Richmond with their father. In the case of the husband's proposal, he will not have recourse to the wife's assistance for before and after school care. He will, by necessity, become a sole working parent, dependent upon babysitters and after and before school care. I mean no criticism of him in this. After all, such a life is the reality for many hardworking and capable parents in this country.
I accept that the husband's parents are available and willing to assist him but they do live some hours drive away from Richmond. I also accept that the RAAF is likely to be sympathetic to the husband's lot and will try to accommodate his needs as a sole parent. However, as I have found, it is in my view unlikely that the husband will relinquish his career in the RAAF. I have found him to be a career minded person. Again, I mean no criticism of him for this. Indeed, as I have already said, he is to be commended for his years of service and advancement in the RAAF.
The husband’s future proposals for the care of the children must be compared to those of the wife. As I have found, she has been closely involved with the care of the children both before and after separation when the husband has been involved in the workforce. She has remained home to be available for the children, and it is her intention to remain so. The current care arrangements, which I found to be ones imposed on the wife, had as one of their central rationales, that they would enable the husband to maintain his full-time position in the RAAF.
On balance, I think it more likely than not that the husband's career in the RAAF will call for him to be deployed on exercises and the like, away from his future home in Richmond. Inevitably, there will be emergency situations. The husband, in his evidence, attempted to gloss over these eventualities. However, in my view, the husband's proposals for the care of the children in Richmond are more experimental than those of the wife in respect of her care of the children in Tindal. The husband will live in B P, five or six kilometres from his work at the base. He will have to arrange child care or be dependent on friends or his parents.
I accept that he is well organised and capable, but such arrangements will be a major departure for him from what he currently knows. On the other hand, the wife has been the children's primary carer. She was not involved in the workforce after the birth of L and A. She will be available before and after school at Tindal to administer to the children's needs as she currently is. Thus, the children will have the benefit of this stability and sense of continuity at a time of great transition in their lives. The wife will also have the benefit of support from Mr P.
In my view, it is a significant thing to separate the children from either of their parents as the parties propose. However, it would be a more significant thing, in my view, in the circumstances of this case, for the children to be separated from their mother.

(d)Practical difficulties and expenses of the children having contact

Both parents express support for the children having regular contact with the other parent, whatever the outcome.
Both indicate that if successful in their application they would wish the other party to have contact for, at least, half the school holidays. The wife and Mr P have indicated a willingness to pay for the cost of two return air tickets for the children to have holiday contact in 2002 with their father, as well as to pay for telephone contact at least twice per week if the wife is successful in her application.
If the husband is successful in his application, he would want the wife to bear the cost of the air travel on the basis that the wife would not be paying child support to him due to her lack of income. Clearly, given the present state of the respective proposals of the parties as to where each of them will live in the short term, the other's contact to the children poses considerable logistic difficulties.
In the wife's case, these difficulties are compounded when the prospect of Mr P having contact to his children either in Caboolture or Tindal is factored into the equation. The cost of air travel between the Northern Territory and New South Wales is considerable. In my view, neither of the parties is well placed financially and the cost of such travel will be a considerable burden.
Putting aside the issue of Mr P and what arrangements he will make to exercise contact to his children and how this will impact on A and L's contact with their parents, it is hard to see any real differences between the husband's and wife's proposals for contact other than the wife has made a commitment to pay for, at least, some of the costs of contact.
Which ever party is successful there will be considerable expense and complexity of arrangements associated with the other having contact to the children. That is the sad reality of the parties living some 3,600 kilometres apart from each other. Having said that, Mr P has to my mind, displayed some aptitude in travelling around the country to maintain his relationship with both the wife and his children.
I accept his evidence that he wishes to be posted to Richmond as soon as is practicable. This course would alleviate the current state of dislocation in respect of contact arrangements for the children. On balance, I think it more likely than not that the RAAF will post Mr P down south sooner rather than later given the period of time he has already served in Tindal. I think it unlikely that he and the wife, if successful with their primary application for the residency of the children, would seek to continue with the posting to Tindal in order to limit the husband's contact to the children.
In this regard, I note their undertaking to pay a considerable amount towards the costs of contact. I am not so confident about the husband's commitment to the children having contact with their mother if he is successful. I reach this conclusion by reference to the fact that the husband applied for his posting to Richmond at a time when the wife had no plans to leave Townsville. As I have found, he wished to place the wife under as much pressure as possible by that posting. He did not consult her in reference to it.
At that time, by inference, he had no hesitation in making the wife's continued contact with the children more difficult for her. I have concerns that if granted residence of A and L that such an attitude would possibly permeate his future stance in respect of the wife having contact.

(e)The capacity of each of the parents to provide for the needs of the children including their emotional and intellectual needs

As I have already indicated, I have no doubt that both parties are good parents and are both able to provide for the emotional and intellectual needs of the parents. They are both attentive, caring, committed, and loving parents. However, for reasons already provided, in my view, the wife is better placed to provide for the needs of these children who are still quite small.

(f)The children’s maturity, sex and background or other characteristics relevant

In my view, neither L or A, have any special characteristics which make this sub section relevant in this case.

(g)The need to protect the children from physical or psychological harm or family violence

There is no evidence that either party has knowingly or unknowingly exposed either L or A to any physical or psychological harm, or that there are any issues concerning family violence between the parties.

(h)The attitude to the children and the responsibilities of parenting demonstrated by each of the children’s parents

As I have been at pains to point out to the parties, I am satisfied that each of them is a good parent and that in the absence of agreement between them the Court is placed in the invidious position of having to compare competent and loving parents and make a decision as to the residence for L and A. In respect of this particular criterion, however, this is, in my view, a clear distinction to be made between the parties.
There are a number of factors in the husband's behaviour since separation which seem to me to inhibit the quality of his parenting and into which he has a limited insight. The evidence I have heard demonstrates to me that certainly since separation the husband has had a very negative view of the wife's ability as a parent, notwithstanding, that he has been content to use her services for his own convenience when he has been at work.
In seeking his transfer to Richmond without consultation with the wife he sought to subvert her relationship with the children. On any view she had been substantially involved in the care of the children. On separation he was prepared to divide the responsibility of the care of the children on an extremely artificial basis to secure his own financial advancement. Any additional contact the wife has sought to the children has been grudgingly given.
He shows a limited ability to empathise with the position the wife found herself in and has sought to take advantage of a change of her circumstances and financial difficulty.
From these matters there arise concerns in my mind that if granted the residence of A and L he would possibly attempt in future to erode the relationship between the children and their mother, either consciously or unconsciously. To some extent it appears to me that he has put his own needs before those of the children. He has attempted to put conditions and qualifications on the children's contact with their mother which have suited his interests, particularly, his financial interests.
He has to some degree attempted to subvert the wife's role with the children as a primary care giver, a role that came about because of the traditional division of roles between the parties during the marriage, he being breadwinner, she being homemaker. I have no such concerns in respect of the wife and her attitude to the husband maintaining his relationship to the children.
Having said that, it is to the parties' credit that in difficult circumstances lines of communication still appear to be open between them. They seem to have cooperated together over L's behavioural difficulties at school. I also accept the wife's evidence that in the long term she would seek to return to Richmond so that the children may have as fulfilling a relationship with their father as is possible, given the circumstances of their separation.

(i)Orders least likely to lead to further proceedings

The circumstances of this case make it necessary to make specific orders in respect of the residence of L and A, and for the other parent to have contact to them at specific times. Whether this will lead to further proceedings cannot be assessed at this time. However, alternative orders are not a viable proposition at this time.

Conclusions

This is a difficult and finely balanced case. It is a difficult case because both parties are clearly capable and loving parents who are devoted to their children's best interests. By reason of their connection to the armed services – the husband, through his career in the RAAF – the wife through her engagement to a serving member of the RAAF – both of them are moving shortly to vastly different geographical locations within Australia, although I have some confidence that the wife will relocate to Sydney at some time in the future.
Because of the inability of the parties to agree about the future arrangements for their children, a difficulty that is readily understandable given their different plan and choice of residence in future, it falls to the Court to make a decision about where L and A will live and with whom. This has to be done after consideration of the various factors set out in section 68F(2) of the Family Law Act which, in my view, for the reasons given, favour the wife's application.
Ultimately, the decision which has to be made is that which is in the best interests of the children. As to that, I have come to the view, that this would be achieved by the children living with the wife. She has been their primary carer from the time of their respective births by virtue of the joint decision of the parties that she would remain at home and the husband would continue as breadwinner.
After separation, she has continued to have daily input into their lives. I do not believe that she has ever intended to abandon her role in these children's lives. It would be a very significant thing to remove these children from the primary care of the wife, something that would be done only if there were compelling reasons or evidence that would indicate that such a case should be taken. In my view, there is no such evidence. Added to that, the wife is, in my opinion, better equipped to cater for the emotional needs of these children than the husband is and more likely to better support their relationship with their father.
I reiterate, however, that the husband is central to the children's well-being and their future balance and development, and for that reason it is essential that he have the maximum amount of contact that is available to him. For that reason, in my opinion, it would be of assistance to these children that Mr P be posted back to Richmond as soon as possible.
Accordingly, the orders that I will make will cover the eventuality of the husband and wife living in the same location. I also believe that in the circumstances of this case that it is appropriate that the wife bear the costs of two return air tickets each year for the purposes of contact in the evidence that she and Mr P remain in the Northern Territory or otherwise absent from Richmond or the Sydney area.

For all these reasons, subject to any submission as to form, the orders of the Court will be as set out at the beginning of these reasons for judgment.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Lynnette Chin

Date: 5^th April 2002