K and K
[2001] FMCAfam 142
•6 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & K | [2001] FMCAfam 142 |
| RESIDENCE – Competing proposals for residence – best interests of the child. |
| Applicant: | R P K |
| Respondent: | K J K |
| File No: | ZE 245 of 2001 |
| Delivered on: | 6 September 2001 |
| Delivered at: | Dandenong |
| Hearing Date: | 30 August 2001 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr DeVries |
| Solicitors for the Applicant: | Mercader, Barristers & Solicitors, 4 Gaynor Court, Boronia 3155 Telephone: 9779 4398 |
| Counsel for the Respondent: | Ms Weiner |
| Solicitors for the Respondent: | David Wilkinson & Co, Suite 2, 30–32 Alchester Crescent, Boronia Telephone: 9761 2355 Fax: 9761 2643 DX 15503 Boronia |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
ZE 245 of 2001
| R P K |
Applicant Father
And
| K J K |
Respondent Mother
REASONS FOR JUDGMENT
Introduction
This matter concerns competing proposals for residence between the parents of the child M L K born 12 July 1997 (“M”).
Applications
The father relied upon an application filed 27 March 2000. He submitted to the Court through his Counsel minutes of the precise orders sought by him which are as follows:
(1)The child M L K born 12 July 1997 reside with the husband.
(2)The child have contact with the wife as follows:
(a)Until the child commences school:
(i) From 10.00 am Sunday till 5.00 pm Tuesday and from 8.30 am to 6.30 pm Thursday for the first two weeks of each three-week cycle;
(ii) From 10.00 am Monday to 6.30 pm Thursday during the third week of each three-week cycle;
(iii) Each alternate week of the Christmas school holidays.
(b)Once the child has started school:
(i)From the end of school every second Friday to the commencement of school on the following Monday;
(ii)From after school to 7.00 pm each Wednesday;
(iii)For three weeks during the Christmas school holidays commencing 5.30 pm on Christmas Day on those years M has Christmas Day with the husband and for the second half of the Christmas school holidays in other years.
(c)On Mother’s Day if it is not already a contact day from 10.00 to the commencement of school the next day.
(d)On the child’s birthday and the mother’s birthday:
(i)For three (3) hours after school if a school day;
(ii)For four (4) hours from 10.00 am if not a school day.
(e)For the first half of each school term holiday.
(f)From 11.30 am to 5.30 pm Christmas Day each alternate year commencing 2002.
(g)From 5.30 pm Christmas Day to 5.00 27th December in each other year.
(h)That contact be suspended each Father’s Day between 10.00 am and the commencement of school the next day.
The wife’s response was filed on 8 May 2000. She also indicated at the commencement of the case through her Counsel the orders that she now seeks, which are as follows:
(1)That the child M L K reside with the wife.
(2)That the husband have contact with the child, until school starts:
(a)Each weekend from the conclusion of school on Friday until 5.30 pm on Sunday;
(b)One half of all school holidays;
(c)Christmas Day, birthdays and special days be shared.
(3)Once school commences:
(a)Each alternate weekend from the conclusion of school on Friday until 5.30 pm Sunday;
(b)Overnight on one (1) night each week.
Background
The husband was born on 16 October 1974 and is 26. The wife was born on 29 November 1977 and is 23.
The parties began cohabiting in January 1997 and M was born on
12 July 1997. The parties married on 17 October 1998 and separated on 14 November 1999. A decree nisi became absolute on 30 June 2001.
The parties reached agreement in relation to property issues and on 12 April 2001 orders by consent were made dealing with property matters. Suffice it to say that there is very little, if any property, to be divided between the parties and the orders in essence provide for the husband to indemnify the wife against various liabilities.
It is common ground that the wife was the primary caregiver for M until separation and then for most of the separation until August 2000.
The wife lived with her parents immediately after separation. In or about August she moved from her parents’ home in order to acquire independent accommodation for herself and M. At this time she asked the husband to care for M. There is a dispute between the parties as to the length of time for which it was intended the husband should care for M and whether or not the wife changed her mind before the expiration of the period. However, it is common ground that since August 2000 M has lived with the husband and the wife has had contact with her.
Following the separation of the parties, proceedings were commenced in the Family Court of Australia and on 8 May 2000 the following orders were made by consent:
(1)That until further order, the child M L K have contact with the husband as follows:
(a)Each alternate weekend from Friday at 5.30 pm to Sunday at 7.00 pm commencing on 19 May 2000;
(b)Each Wednesday from 5.30 pm to Thursday at 8.00 am commencing on 10 May 2000.
(2)That the child reside with the wife at all other times.
(3)That until further order, whilst the husband denies the necessity for same, he not leave the child M L K unsupervised with his sister B L.
The matter came on before the Court again on 5 June 2000 and on that occasion the previous orders were discharged and again by consent the parties consented to the making of the following orders:
(1)That until further order, M live with the wife.
(2)That until further order, the husband have contact with her as follows:
(a)Each Wednesday from 5.30 pm to Thursday at 8.00 am;
(b)Each weekend from 5.30 pm commencing Friday 9 June 2000 to 8.00 am Monday 12 June 2000;
(c)Such further times as agreed.
(3)That until further order and whilst the husband denies the necessity for same, the child not be left unsupervised with the husband’s sister B L for a period longer than 10 minutes.
(4)The applications were adjourned to 7 September 2000.
At the time the matter came back to Court on 7 September 2000, the wife had moved out of her parents’ home and asked the husband to care for M. The parties agreed that the applications should be adjourned to 5 December 2000, that there should be counselling pursuant to s 62F(2) of the Family Law Act and that until the adjourned hearing on 5 December, M reside with the husband.
The Court also ordered that until the adjourned hearing, the wife have contact with M as follows:
a)From 10.00 Sunday until 5.00 pm Tuesday in the first two weeks of every three-week period commencing 10 September 2000;
b)From 10.00 am Monday until 5.00 pm Wednesday in the third week of every three-week period commencing 25 September 2000; and
c)Such other times as the parties may agree.
For the purposes of contact, the husband was to collect M from the wife at the conclusion of each period of contact.
The matter came back before the Court on 2 February 2001, on which occasion it was transferred pursuant to s 33B of the Family Law Act to the Federal Magistrates Court. It was listed for hearing on 12 April 2001.
On that date, orders were made by consent concluding issues relating to settlement of property between the parties. The issues in relation to residence and contact were listed for final hearing on 30 August 2001 and pursuant to s 62G(2) of the Family Law Act, a family report was ordered.
The orders made on 7 September 2000 in relation to M were varied to provide that the mother have contact:
a)On M’s birthday for a period of not less than four (4) hours;
b)On Mother’s Day from 9.00 am until 5.00 pm if not otherwise a contact period;
c)For the first week of the June/July school holidays.
Issues
Both parties sought residence of M. Neither party suggested that the other was an inappropriate parent or unable to adequately provide for M. This is a case in which the question is which party can provide the best arrangements for M, rather than a case in which one or other is an inappropriate parent. The parties conceded that each of the parents are capable parents and neither was critical of the other’s parenting. In addition neither party was critical of the other’s partner. The mother relied upon the fact that she had been primary caregiver to M prior to separation and after separation for the first eight months. She asserted that she and her partner can offer the stability and the availability of a full-time parent as she would not be working and would be available full-time both now and in the foreseeable future to care for M.
The proposals of the parties
The mother lives in W with her de facto partner S T. She and S T have lived together since September 2000. At the present time they are sharing their premises with a friend A V, who is 26 years of age and single, and S T and the wife are presently looking at obtaining their own home to rent. In their home there are three bedrooms and M is able to have her own room. Mr T is employed full-time as a motor vehicle stylist or designer of motor vehicles for GMH. He is providing financial support for the wife and prepared to assist in M’s support. He is supportive of the wife’s proposals for M to live with them and it is their intention to marry.
The mother does not work and has no plans to do so. She proposes to devote all her time to the care of M and she and Mr T also hope to have further children. It is not her intention to seek employment.
The husband has been living with K M and her children J, aged 7 and J, aged 6 since April 2001. They live in the home in which the parties lived prior to their separation, which is principally owned by the husband’s mother. M has her own bedroom and J and J share a room.
The husband is presently studying accountancy full-time at S University at the K Campus. He has the following commitments to his studies:
Monday — 9.00 am to 3.00 pm
Tuesday — 9.00 am to 2.00 pm
Wednesday — 9.00 am to 3.00 pm
Thursday — 9.00 am to 4.00 pm
He has Fridays off. It takes him 15 minutes from the conclusion of his lectures to get home. In addition to his lectures he has assignments to do which he indicated involved about three hours’ homework a day, which he said was done after the children were in bed.
He anticipates that he will complete his full-time studies at the end of 2002. He is contemplating a further 18 months’ full-time study, but ultimately hopes to get a job working full-time at an accountancy firm. K M works Mondays and Wednesdays.
At the present time M is attending kindergarten from 8.30 am to 3.00 pm each Wednesday on two weeks out of three, because in the third week she is with her mother on Wednesday. In addition to kindergarten she attends creche on Thursday.
The husband relied upon the status quo established since August 2000, and what he described as the wife’s habit of changing her mind about wanting M to live with her.. He also relied upon the close bond between himself and M as described by the counsellor. His case was presented on the basis that he could provide a stable, effective household in which M was thriving and as a full-time student he had the capacity to care for her. His proposals took account of the existing relationship between the mother and child and in addition to the existing contact, he included contact on Thursday, the day on which M had been attending creche. It was submitted on his behalf that whilst it might be said there had been some inflexibility on his part about contact between M and the wife, he had taken to heart the comments in the welfare report and could see the benefit of M spending Thursdays with her mother rather than going to creche.
The wife’s case is that the husband has exhibited a significant degree of inflexibility in allowing contact to take place between mother and child, that he had done nothing to foster the mother/child relationship and preferred M to spend time with his stepchildren in preference to her mother. The wife was critical of his attitude to involving her in M’s activities, particularly with the creche and childcare and described him as trying to “freeze her out”. Insofar as the counsellor suggested that there was a stronger bond between M and the husband than with the wife, it was argued for the wife that the counsellor had failed to take into account the husband’s attitude to contact with the wife, and that his assessment was wrong.
Evidence
The husband relied upon two affidavits sworn 10 April 2001 and
23 April 2001 respectively. He gave evidence and was cross-examined.
The wife relied upon two affidavits sworn and filed 5 April 2001 and
27 August 2001 respectively and an affidavit of S A T filed 27 August 2001. The wife gave evidence and was cross-examined. Neither party sought to either cross-examine the partner of the other, nor to impugn their character in any way.
The report prepared by the counsellor dated 20 July 2001 was admitted into evidence and the counsellor was cross-examined by counsel for both parties.
The husband said in his evidence that at separation the wife had left M with him, but after a couple of days that changed. In August 2000, he said that she suggested M remain with him, informing him that she couldn’t cope and thought that she might be right by December. He said that she did not ask for M to be returned and said that he had been asked once by the wife before April 2001 if M could stay on Tuesday night with her.
The wife’s affidavit filed 27 August 2001 contained an annexure which is a letter from the wife’s solicitors to the husband’s solicitors dated 18 July 2001. The letter asserts that despite protests by the wife, the husband prefers that the child be place in daycare on Thursday rather than in the care of the mother. It further asserts that the husband has not informed daycare of the wife’s details and refuses to do so.
The husband said that he had not seen the letter until his solicitor got the family report and by that stage it was so close to the hearing, there was no point in responding. He conceded that on one occasion the wife had asked him if M could stay with her on Tuesday night to enable her to take her to kindergarten on Wednesday but that he had refused, saying that it was against the kindergarten’s rules for her to drop her off, and she was not on the relevant form as a contact. When asked why this was so, the husband responded by saying that he was never formally provided with her address so that he could give it to the kindergarten. He said that they needed her full address, mobile phone and landline number and that he only had her mobile and didn’t know her address until he had seen her recent affidavit.
The wife filed an affidavit on 5 April 2001 in relation to the proceedings in which she gave her address, which is the address at which she is still living in W. The husband’s response to this was to say that he was not given a copy of the document by his solicitors and took no note of the address when he read it at Court. He conceded he had her mobile number. He conceded that he did not ask her for her address, nor did he ask his solicitor for the address or to obtain it. It is clear that he made no effort to provide details to the kindergarten, which would have enabled the wife to collect M and his excuse that he did not know her address appears to be an excuse which enabled him to avoid having to allow her further time with M.
Although there was some issue between the parties as to how often the wife had asked him to increase the time she spent with M, it was not in dispute that the husband had not agreed to do so, despite the fact that M spent a day in kindergarten and a day in creche when in two weeks of three at least, she could have been with her mother. It is further clear from the evidence that the husband did not provide the mother with any details of what activities M was doing at kindergarten or creche and none of the usual drawings or work the children do was provided to the wife. The wife complained that he did not alert her when M was sick so that she could care for her, but the husband said that she had not in fact been ill since she had been in his care. It was not until the hearing commenced that the husband made a concession that M should spend Thursdays with her mother rather than go to creche.
He said that she had asked him only once to have her overnight on Tuesday so she could take her to creche, and this was on short notice. He also explained that he had no details. The wife’s evidence was that she had asked him one week and when he refused she asked him why it could not occur the following week.
In relation to M’s birthday, the husband and wife reached an agreement that M would spend all day with the wife, the day before the birthday, namely 11 July. Sometime shortly after 10.00 pm on
10 July, she received a text message on her telephone telling her that the husband would be dropping M off at 8.15 am and picking her up at 1.00 pm, contrary to their agreement that she spend all day with her mother. The wife sent a reply saying, “What happens if I had anything planned for her in the afternoon?” She received no reply. The husband said that he thought he had given two days’ notice but having heard the wife’s evidence and there being no challenge to the wife’s evidence as to the the text message on her mobile phone, I am satisfied that the wife’s version is accurate and it was not until late the night before that the husband changed this arrangement unilaterally. When asked about the issue, he said that he had changed it because his great-grandmother was going away for a trip for four weeks to Tasmania and wanted to see M.
There are two problems, in my view, with the husband’s behaviour on this occasion. The first was that having reached an agreement with the wife, he unilaterally changed it without any consultation with her at all and without any regard to arrangements she might have made. It was common ground that he had arrived the next day and took M at one o’clock, apparently while she was still eating her birthday cake. The second problem, in my view, is that the reason for doing so was to visit a family member who was going for a four-week holiday in circumstances in which it must have been obvious that it was far more important for M to spend that time with her mother.
The husband then instructed his Counsel to cross-examine the wife about an incident which he asserted showed the wife changing arrangements at the last minute. He said that the wife had indicated that she didn’t want M on Mother’s Day, but rang the night before and said she had changed her mind and would collect her at 9.00 am. Prior to that, she’d apparently said that M could be with the husband until 5.00 pm. The wife’s evidence was that she had offered to the husband that he may wish to take M to see his mother on Mother’s Day and to a nephew’s birthday to which she was looking forward. She later rang to say that she had been invited out to lunch and would like to have M with her. The husband told her that M was going with him and didn’t return her until 4.00 pm.
The husband raised this as an example of the wife changing arrangements at the last minute as well. However there is a significant difference between the two incidents. The husband changed the arrangements unilaterally and carried out his changed arrangement, that is to say, that having decided without consultation that he would collect M at one o’clock rather than the agreed time, he did so. Although the wife sought to change the arrangement, the husband did not allow her to do so and he continued to keep M with him until 4.00 pm. The difference of course is that he changed the arrangement and implemented the change. When the wife sought to make a different arrangement, which would have given her an opportunity to see M on Mother’s Day, he refused to allow her to do so. The incident, in my view, says a lot more about him than it does about her.
There was some dispute between the parties as to what extent the wife had asked the husband for more contact with M. She wife said in her evidence that she hadn’t asked for M back because she had asked the husband for more time with M, which he refused and she knew that he would not agree to M coming back to her. The counsellor understood that she had asked once and that she told him the husband would not agree and there was no point in asking him again, or asking for M to be returned to her. It appeared to be common ground that if the wife had asked for M’s return, the husband would have refused.
There was a dispute between the parties as to the precise arrangement whereby the husband looked after M for a couple of days immediately after separation. The husband told the counsellor that the wife had agreed that M would stay with him and then changed her mind. The wife’s evidence was that he had asked for M to stay with him and she had agreed to this taking place for two days. The fact that she stayed with him for a couple of days is not in dispute. The inference from the husband’s evidence is that the mother was going to leave M with him and then changed her mind. He would suggest that this is consistent with the August arrangements. The inference from the wife’s evidence was that she had never intended to leave M with him and did so at his request for a couple of days. In the end, it may be nothing turns upon this, however, I am satisfied on the evidence that the wife did not intend to leave M with the father for any length of time immediately upon separation.
There was somewhat more dispute between the parties as to the position in August when M came into the husband’s care. The husband says that in August, the wife said that she couldn’t cope with M and accordingly asked him to care for her. He says that she thought that she might be right by December, and that she didn’t ask for her back. I have already described the wife’s response to requests for the return of M. The wife denies that she said she couldn’t cope and described the need to have M cared for by the husband arising from the fact that she felt the need to move from her parents’ home, as it was overcrowded and not an ideal position in which to remain with M. The wife was then living with her parents and two older brothers and younger sister. She thought that it would be too stressful for her to be looking for other accommodation with M and that it would be best for M if the husband cared for her. She says that there was no time frame expressed and she told the husband that M was with him temporarily.
I do not accept entirely the wife’s explanation. It is difficult to see logically why it would have been more stressful for her to look for accommodation when M was with her if there was no pressure from her parents to move out, as she said.
I also note that Mr T deposes to the fact that he’s lived with the wife since approximately September 2000. It is likely, in my view, that the wife’s departure from the home of her parents was more to do with the establishment of the relationship with Mr T, which occurred at that time, than a need to move from her parents’ home, although that may also have been a factor. It would make more sense of her decision to ask the husband to look after M in circumstances in which she was setting up a new home with Mr T than simply looking for independent accommodation of her own in which to house M.
Despite the fact that I do not entirely accept the wife’s version of why she asked the husband to look after M at that time, nevertheless she did make arrangements for M to be cared for by her father in circumstances which were good for M and, if she was at that time trying out a new relationship with Mr T, her actions in not taking M with her may well have been best for M. I am satisfied from the evidence that the arrangement was understood by both to be of a temporary nature. In addition, the fact that at that time she thought it best that M live with the husband does not, of course, preclude her from now submitting that as she has been living with Mr T for twelve months and they have established a good relationship, that M should not now be living with her.
Overall, the husband presented as a caring father but one who had some reluctance to acknowledge the importance of the wife’s role in M’s life and the importance to M of promoting that relationship and allowing an adequate degree of contact between them. The counsellor noted that the husband had told him that together with his own commitments and requirements, M needed to spend time with his partner’s children. Despite the fact that the counsellor suggested to the husband that the wife and M’s relationship was more important, at that time at least he was not able to compromise and allow her more contact.
My impression of him and the evidence that he gave was that he was inflexible regarding contact and did not sufficiently value the relationship between the mother and child, or the child’s need for contact with her mother, particularly where the mother was available and the child was otherwise in creche being cared for by third parties.
The wife’s proposals for contact would involve significantly less time between M and the husband than is presently occurring and in my view those proposals were ill thought-out given the nature of contact at present. Nevertheless, her general attitude is more flexible than the husband’s and she acknowledged the importance of the father/child relationship much more readily than he was prepared to do. These observations were consistent with the observations by the counsellor regarding the attitude of the parties.
The counsellor noted that the husband wasn’t particularly flexible about M spending more time with the wife and had firm views about how he wanted the time to be spent with him and his family, and had a clear preference to creche over M spending time with the wife. It was his view that M should have as much time with each parent as possible and that he hadn’t seen the same flexibility in the husband as the wife appeared to have. In his evidence, he said in particular, “I don’t think that the mother would be quite as difficult or that there would be the same inflexibility on her part.”
The counsellor found both partners of the parties to be impressive. He observed that M got on well with J and J and got on well with each of the partners of the husband and wife. The counsellor formed the view, however, that M had a closer bond with her father. He formed this view after observations of interaction and a particular incident in which when the husband left the room, so that observations between M and the wife could occur. When this happened, M asked for him a number of times, both when with the wife and when with the counsellor. He found this request surprising because the wife had just had M with her the whole of the previous week and she’d only been back with the father for a few days.
However, an incident occurred during the course of the interviews which bears some explanation. When the counsellor asked the father to hand over M to the mother for observation in the playroom, it seems that M wrongly got the message that her father was not staying around. He left the area and it took M a little while to settle down with tears and protestations about wanting to go with her father. Ultimately, this difficulty was sorted out and the counsellor observed that S T was supportive in distracting M and settling her down. The counsellor said he took this into account when assessing the strength of the relationship between M and her father. The counsellor thought that the wife’s care of M seemed to have gone through patches of availability and non-availability. He felt that this had probably affected her bonding with the child and may have been the reason that the child was observed to have a greater bond with the father.
I am not satisfied on the evidence that it could be said that there were patches of availability and non-availability, apart from M going to her father in August 2000. I am satisfied that initially the wife had intended to take M with her and had not changed her mind at that stage. In August, however, there was clearly a period of non-availability to which I have referred. The counsellor also felt that the wife had not pursued the return of M to her in a way that suggested some ambivalence about it. From my observations, I am not satisfied that that is the case. There was clearly a period late last year, after August, when the wife was probably uncertain as to precisely when she would be in a position to have M returned to her, but by the beginning of 2001 she was clear that she wanted M returned. Although she did not make formal application to the Court, she had asked the husband for greater contact and that having been denied, she was entitled to assume that no agreement was going to be forthcoming by the husband to return M to her. In any event, at that stage the proceedings were well advanced and it appeared that the matter would be heard in April 2001 and a final determination made. The fact that the wife did not then apply for an order for interim residence does not, in my view, indicate a lack of interest in pursuing it.
The counsellor also observed that although each parent loved M and wanted what is best for her, it was as they saw it, and that both parents at times had put their own needs ahead of the needs of M, particularly her need to spend time with the other parent. The counsellor recommended that the current arrangements continue substantially in place for the next 18 months, that is for M to reside with her father, because that is where she has been for much of the time since separation, because she seems happy there and there seems to be a greater bond between M and her father. He suggested some minor arrangements and in particular that the wife be given the option to have M with her when she would otherwise be at creche on a Thursday. He suggested that by the time she attends school in 2003 the arrangements would need to change to alternate weekend contact with her mother, with a weekday from after school until the evening.
The law
Residence and contact orders are parenting orders. They arise from proceedings that result from Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underlie those objects. Subject to s 65E, that in determining the outcome, the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) provides in effect that children have the right to contact on a regular basis with both their parents and other people significant to their care, welfare and development. In deciding the residence and contact arrangements that will promote the best interests of the particular child, the Court must consider the various issues set out in s 68F(2). Each subsection comprises a list of matters that must be considered in the context that each is relevant to the particular case.
They all permit the Court to take into account “any other fact or circumstance that the Court thinks is relevant.” This ensures that the infinite variety of children’s circumstances can be addressed. (B & B; Family Law Reform Act 1997, FLC 92-755.)
(a) The wishes expressed by the child
In this case, M is four years old and it is not suggested that her wishes, if expressed, would be a relevant factor.
(b)The nature of the relationship of the child with each of the parents and with other persons
M has a good relationship with each of the partners of her parents. She also has a good relationship with her step-siblings, K M’s children, J and J, although the counsellor does not suggest that that relationship is so important that it should prevent her living with the wife. The counsellor’s assessment of the bond between M and her parents is that the bond with her father is closer. It was largely on that basis, together with the fact that M seemed happy in her present home and has been there for the past 12 months, that he thought the husband should have residence. In the end, however, this factor must be weighed up against others and is only one of the factors that I must consider. Section 68 F (2) of the Family Law Act does not elevate any one factor over another. Whilst the counsellor’s views were said to include observations of the interaction between M and the husband, the main influence on him seems to have been the fact that M was asking for her father after he had left the room. He acknowledged that the bond with the mother was strong, but thought it was stronger with the father. Nevertheless, I must take into account in relation to his observations, that there had been some misunderstanding on the child’s part as to where her father would be and the relatively limited opportunity in the context of the interviews, for the observations to be made.
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other person with whom she has been living
It was not suggested that any change in residence would result in a particular difficulty for M, notwithstanding the counsellor’s assessment of the closer bonding with the husband. Indeed, provided that the orders ensure that each of the parties spends as much of the time as they have available with M prior to her commencement at school, there will not be a drastic change in her current circumstances. The greater change will come when she commences school in 2003.
(d)The practical difficulty and expense of having contact
It was not suggested that in this case this factor was a relevant issue.
(e)The capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs
Both parents are capable of caring for M’s needs in their respective households. Similarly, their partners enjoy a good relationship with her and are equally capable of assisting in her care. She is extremely fortunate in that she has not only two parents who can both provide for her care, but two households which can also do so. Despite the husband’s eleventh hour indication that he has taken the counsellor’s recommendations to heart and now agreed to the mother spending more time with M, the history of the matter indicates that he is less flexible about M’s need to spend more time with the other parent and less understanding of her emotional needs. This applies not only to the amount of physical time she would spend with her mother, but also the promotion of that relationship as a positive element in her life. To some extent both parties can be criticised for this, which led to the counsellor commenting that M appeared to be unable to talk about her mother when she is with her father, or talk about the other parent even with the counsellor.
(f)The child’s maturity, sex and background and any other characteristics of the child that the Court thinks are relevant
It was not submitted that there were any particular characteristics that were relevant in this case.
(g)The need to protect the child from physical and psychological harm
It was not asserted that this was a relevant factor in this case.
(h)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Both parents have in general terms, in my view, responded responsibly to the care of M. Whilst there was a period following August when the wife felt that she was unable to care for M as well as the husband could do so during that period, I do not think she can be criticised in that regard. Whilst I have not entirely accepted either of the versions of how this came about, the wife acted in the best interests of M by placing her with the husband who she knew could look after her. Further, I am satisfied that she is more likely to encourage M’s relationship with her father and to be flexible in allowing time that M needs with him than he would be towards her.
(i)& (j) Any family violence
It was not submitted that there is any relevant factor that I need to consider under these subheadings.
(k)Whether it would be preferable to make the order that will be less likely to lead to the institution of further proceedings
I raised with the parties the question of whether I should make orders until M commences school and then perhaps require the parties to either negotiate what would happen once she commenced school, or come back to Court in the event they could not agree. This is because prior to her commencing school, the parties’ own arrangements and availability is much clearer than it will be in 18 months’ time when she starts school. For example, in 18 months’ time, it is unclear whether the husband will be working full-time or will be studying. If he is working full-time and the wife is not, then an arrangement imposed upon the parties now may no longer be appropriate in three years’ time. In the end however, in my view, it is better that there be some certainty for the parties and, as Counsel for the husband quite properly submitted, a change in the parties’ circumstances would enable them to return to Court if they could not otherwise reach agreement.
Conclusion
The husband has cared for M well since August 2000 when she was placed in his care. K M, his de facto wife, has also assisted him. Nevertheless he has not always been prepared to consider the best interests of M, particularly in regard to her relationship with her mother and his attitude to their contact has, right up until the hearing, been inflexible. In my view, this is not adequately overcome by simply making orders which will provide M with more time with her mother. The attitude of the husband which lies behind his inflexibility is what is important and I am not satisfied that he sufficiently values the relationship between M and her mother and adequately understands the need to promote it.
The husband’s Counsel submitted that as the counsellor had recommended that M remain with her father and that he have residence, the Court should move away from that recommendation only with the greatest hesitancy. As I have previously indicated in these reasons, the counsellor’s view as to the bond between the husband and M has to be seen in context and is only one of the factors which I have to take into account. It was not suggested that the mother did not have a strong bond with M, rather that the husband’s was stronger. I also take into account the limited opportunity of the counsellor to observe them together and the possibility of some interference in the process caused by M’s uncertainty as to whether her father was leaving completely.
Prior to August 2000, the wife was the primary caregiver for M and no criticism has been made of her care. She had this primary role during their marriage and subsequent to their separation until August 2000. As the parties separated in mid-November 1999, M spent nine months living with her mother after separation.
The wife is available full-time to care for M. Prior to her commencing school and whilst the husband is a student, he has Fridays off and finishes at varying times in the afternoon. Orders can be made which will optimise the time he spends with M during that period . At the conclusion of his current studies at the end of 2002, he may do another 18 months study. If he did, presumably that would also enable him to have some flexibility, but he is ultimately working towards a career as an accountant and a full-time position. That will either be in 2003 or 18 months later on the evidence. The wife is available full-time to care for M and has no plans to return to work. Whilst Counsel for the husband submitted that this would not matter if M was at school in 2003, she will then only be five years old and still require a great deal of attention from a parent. Increasingly, the husband will be unable to give her that attention and if she is living in his household it will fall to his de facto wife. Whilst they have a good relationship, M’s mother is available to care for her on a full-time basis and in my view, that is a significant factor when I look at the longer term arrangements for her care. When coupled with the husband’s reluctance to acknowledge the importance of M’s relationship with her mother, I am satisfied that M’s best interests will be met by the wife having an order for residence.
Finally, it is clear that the parties would benefit from some assistance in the improvement of their communication in the interests of M. They have had great difficulty in negotiating over her needs to date and some improvement in their relationship is desirable. I propose to make orders that the parties attend counselling to assist them in improving their communication and to enable them to better appreciate and respond to M’s needs.
The orders I propose to make are as follows:
(1)That the child M L K (“M”) born 12 July 1997 reside with the wife.
(2)That M have contact with the husband as follows:
(a)Until she commences school:
(i)From 5.00 pm Thursday until 5.00 pm Sunday for the first two weeks of every three-week cycle;
(ii)During the third week of each three-week cycle from 5.00 pm Thursday to 5.00 pm Saturday;
(iii)In each alternate week of the Christmas school holidays;
(b)Once M has commenced school:
(i)From the end of school each second Friday to the commencement of school on the following Monday;
(ii)From after school to 7.00 pm each Wednesday;
(iii)For three (3) weeks during the Christmas School holidays commencing at 5.30 pm on Christmas Day on those years when M has Christmas Day with the wife; and
(iv)The last three (3) weeks of the school holiday period in each other year.
(c)On Father’s Day if not already a contact day from 10.00 am to the commencement of school next day.
(d)On M’s birthday and the father’s birthday:
a.For three hours (3) hours after school if a school day;
b.For four (4) hours at a time when the father is available if not a school day.
(e)The first half of each school term holiday.
(f)From 11.30 am to 5.30 pm on Christmas Day each alternate year commencing Christmas 2002.
(g)From 5.30 pm Christmas Day to 5.00 pm 27 December in each other year.
(h)The contact in paragraph (a) (i) & (ii), and (b) (i) & (ii) be suspended during school holiday periods and each Mother’s Day from 10.00 am to the commencement of school the next day.
(3)That pursuant to Section 62F(2) of The Family Law Act 1975 parties attend confidential counselling in order to improve the relationship and the communication between them, with the date and time to be arranged by the Primary Dispute Coordinator of the Federal Magistrates Court.
(4)That pursuant to S65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
(5)That the applications otherwise be dismissed.
(6)That the matter be removed from the Pending Cases list.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Bryant CFM
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