L and D - [2001] FMCAfam 172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & D

[2001] FMCAfam 172

FAMILY LAW – Parenting orders – contact – overnight contact – age of child – best interests of child – Family Law Act 1975 s55, s60B, s58F.

B and B Family Law Reform Act 1995 (1997) FLC 92-755

Applicant:

J D L

Respondent:

J M D

File No:

ZP 1454 of 2001

Delivered on:

28 August 2001

Delivered at:

Parramatta

Hearing Date:

24 August 2001

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Givney, Lachlan Macquarie Chambers, DX 28500 Parramatta

Counsel for the Respondent:

Ms Knox

Solicitors for the Respondent:

Ms Perla, Diana Perla and Associates
DX 3627 Double Bay

ORDERS

The parenting orders made on 4 June 2001 are discharged.
The child J C L born 1 November 1999 shall reside with the mother who shall have the responsibility for the care, welfare and development of the said child.
The father shall have contact with the said child as follows:-
(a)from the date of these orders until 30 April 2002:
(i)each Thursday from 9.00 am to 5.00 pm;
(ii)each alternate Saturday from 9.00 am to 5.00 pm, commencing on Saturday 1 September 2001;
(iii)each alternate Sunday from 9.00 am to 5.00 pm, commencing on Sunday 2 September 2001;
(iv)from 9.00 am to 5.00 pm on Father’s Day;
(v)for not less than two hours on the said child’s birthday; and
(vi)at such other times as the parties shall agree; and
(b)from 1 May 2002 until the said child commences school:
(i)each Thursday from 9.00 am to 5.00 pm;
(ii)each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday;
(iii)from 9.00 am to 5.00 pm on Father’s Day where that day does not fall on a weekend when the father would usually be entitled to contact;
(iv)for not less than two hours on the said child’s birthday and
(v)at such other times as the parties shall agree; and
(c)from the time the said child commences school:-
(i)each alternate weekend from after school on Friday to the commencement of school on the Monday, except during school holidays;
(ii)for the first half of each of the Autumn, Winter and Spring school holidays, commencing at 9.00 am on the day after the school term concludes and concluding at 5.00 pm on the middle Sunday of the school holiday;
(iii)for half of the December/January school holidays at times agreed between the parties;
(iv)from 9.00 am to 5.00 pm on Father’s Day where that day does not fall on a weekend when the father would usually be entitled to contact;
(v)for not les than two hours on the said child’s birthday if it falls on a school day or for not less than four hours when that day falls on a day other than a school day;
(vi)from 12 noon on Christmas Eve to 12 noon on Christmas Day commencing on 24 December 2001 and each alternate year thereafter;
(vii)from 12 noon on Christmas Day to 12 noon on Boxing Day commencing on 25 December 2002 and each alternate year thereafter; and
(viii)at such other times as the parties shall agree.
The father shall not be entitled to exercise contact with the said child on Mother’s Day or on the mother’s birthday.
If the father becomes aware that he will be required to attend at his employment for a period in excess of four hours during any contact period he shall contact the mother forthwith to make arrangements to return the said child to her care for that period should the mother so require.
On any occasion when the said child is in the care of the father overnight, the father shall telephone the mother to advise her of the child’s wellbeing or permit the said child to telephone the mother upon the child’s reaching an age where he is able to do so.
Neither party is to criticise or denigrate the other party or any member of the other party’s immediate family in the presence of the child or permit any third person to do so.
Each party shall inform the other of any specialist medical treatment or hospitalisation required by the said child.
The mother shall authorise the principal of each school that the child attends to supply the father with a copy of any school reports, school newsletters and other information relating to the child’s schooling at the father’s expense.
Within one month from the date of these orders both parties shall contact the proper officer of the Keeping Contact Program conducted by Unifam at 27 Hassall Street Parramatta to arrange for mediation between them to ensure appropriate contact arrangements for the said child.
That a transcript be ordered of today’s judgment.
That the matter be removed from the pending cases list.
Liberty to apply on 7 days on respect of any application save for costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 1454 of 2001

J D L

Applicant

And

J M D

Respondent

REASONS FOR JUDGMENT

Application

The application before the court concerns the father's desire for an expanded regime of contact with the child J C L who was born on

1 November 1999. J is 22 months of age, or almost. He will be two on 1 November. He resides with his mother, and has done so for all of his life.
The parties met, formed a relationship, lived together for a matter of months and separated. They remain living separately, and apart. The mother lives with her parents. The father lives with his mother and with his two teenage daughters from a prior relationship.
There are contact orders on an interim basis, currently in existence which were made on 4 June. They provide for daytime contact on two separate days each week and at such other times as the parties shall agree. It is noteworthy, these parties have been able to agree as to other periods of contact on at least three separate occasions. They have arrived at ad hoc arrangements for specific days where J has spent the time in the care of his father which appears to have been beneficial to all parties and which the father graciously acknowledges in his affidavit.
What then are the issues? The father seeks more contact, particularly overnight contact. The mother has concerns about overnight contact at this stage based on J's age and on his state of development. J is not yet two years of age and he has spent less than a handful of nights away from his mother. The issue is complicated by the question of J's hearing. J appears to suffer from a condition known as glue-ear, which is quite a common ailment in young children. It involves a build-up of fluid in the inner ear which affects the child's hearing. It is treatable and most children who suffer from it, one way or another, are able to recover from it. The effects are usually temporary but the hearing loss can result in at least a temporary delay in the child's acquisition of speech and in other areas of learning. Clearly this is an issue of concern to the mother and, in fact, would be of concern to both the parents.
There has been another issue expressed by the mother relating to the father's work commitments. He is a stevedore, he works shift-work and whilst contact arrangements have attempted to have been arranged to take this into account, the mother's concern is that for substantial periods of time it is not in the child's interest for contact arrangements to take place if the father is not going to be there but going to be at work. The court has had presented to it items relating to the father's existing or old roster, new roster and the court has heard a considerable degree of evidence and some argument about these work arrangements. The mother makes the point that contact is for J to have contact with his father not, in her view, with the maternal grandmother.
The affidavit material on each side contains the complaints of abusive language by one party to the other which is denied, including slurs directed at the mother in relation to her race and culture. There is also an allegation by the father, in the affidavit of the father's mother, relating to an incident between the mother and the maternal grandmother in which the mother is alleged to have used highly abusive language to the maternal grandmother. The mother denies this completely. There is also a rather curious account in the father's affidavit of a late night assignation which the mother completely denies and the point of which is still unexplained.
In respect of some of these issues with one and one assertions and denials it is almost impossible for the court to form any view at all. Against this the parents have shown a capacity to co-operate and there has been on-going and quite significant contact between the father and the child. As I said, supplemented by voluntary agreements between the parties which appears to have worked quite well. The parties despite their allegations of abusive language one to the other, are more than capable it seems of co-operating quite well in issues relating to the child.
To some extent this is a matter largely of timing as to when expanded contact arrangements, including overnight contact, should take place. The principles to be applied by courts exercising jurisdiction under the Family Law Act are set out in section 60B of that Act, amongst other places. That section says that the object of this part 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 these objects are that except when it is or 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;
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.
Section 55E of the Family Law Act states that:
“ In deciding whether to make a parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration.”
Section 58F(2) sets out the matters the court must consider when determining what is in the child's best interest. These matters include:
(a)Any wishes expressed by the child. Any factors such as the child's maturity or level of understanding that the court thinks relevant to the weight it should give the child's wishes.
Not a point that should disturb the court in this case, bearing in mind the fact J is just approaching 22 months.
(b)The nature of the relationship of the child with each of the child's parents
(c)The likely effect of any changes in the child's circumstances.
(d)The practical difficulty and expense of the child having contact with the parent
(e)The capacity of each parent to provide for the needs of the child.
(f)The child's maturity, sex and background.
(g)The need to protect the child from physical or psychological harm.
(h)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents.
Paragraphs (i) and (j) relate to family violence and family violence orders, which is not an issue in this case. One issue that has been specifically referred to me by Mr Givney of counsel for the father is 68F(2)(k). Whether it would be:
(a)preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
and —
(b)any other fact or circumstance the court thinks is relevant.
Three sections and there interaction were considered by the Full Court of the Family Court of Australia in B and B Family Law Reform Act 1995, reported in 1997 FLC 92-755, where the court held that:
“ In proceedings relating to parenting orders the best interests of the particular child in that case remains the paramount consideration. Ultimately, it is a question of applying, in a common-sense way the individual sections so as to achieve the best interests of children in a particular case.”
How then should approach this case? Mr Givney of counsel for the father has provided an extensive outline of case document which sets out, in some detail, a schedule of graduated orders which would vary and increase the contact until this child commences school. To include overnight contact on alternate weekends, which is sought to commence now. Then from a greater period of overnight contact from 1 November, ie, J's second birthday. Then from 1 May, when J turns two and a half, through to when he starts school a further period of contact, including contact of a week at a time and then a further period of arrangements from when this child commences school onwards. The orders sought also look at Christmas day, Boxing day and matters of that area.
The mother's solicitor also prepared a response, by way of letter, setting out a proposed schedule of contact arrangements. Somewhat briefer. Setting out contact between now and the age of three years stating each alternate Saturday from 9.00am to 5.00pm and Sunday from 9.00am to 5.00pm, commencing immediately. Then overnight contact commencing from when the child reaches the age of three. Then longer overnight contact, school holiday contact and other times agreed between the parties from when J commences school. I would comment that there has been no issue between the parties other than the fact that J should continue to reside with his mother. Apart from criticism by the mother of the father's absences at work, there has been no issue raised by the parties of the parenting capacity of the other party.
It is regrettable that the mother's solicitor's letter did not include a contact arrangement on Thursdays, which is part of the existing orders. The submission did not become clear to the court until after the mother, who is the respondent, had given evidence-in-chief and been cross-examined by Mr Givney of counsel. It was not in fact until questioning by the court about arrangements on Thursday that the mother indicated that the arrangements each Thursday were in fact for her benefit and the child's benefit. That she had made arrangements to work on that day and that she saw no reason why that existing arrangement should not continue.
This revelation, I was informed, was news to Mr Givney of counsel. So, it is unfortunate that the parties actual positions at the commencement of the hearing, were closer to each other than there legal advisers, at least, believed. In the long run it is a question of setting a schedule, a timetable. Taking into account not just general factors relating to children but specific factors relating to this child and these parents. Of course, the court just cannot impose some form of a rule of thumb which would apply to all children of this age in those circumstances.
The mother, at first, appeared to be quite intransigent in her view that the father should be present for the entire time during contact. But this is not the mother's position, indeed, under cross-examination she said, and quite reasonably, she accepted that at any time people have got to have some time to themselves. Whether it is to go shopping, whether it is to go to the gym, whether it is to go to some other arrangement and that for people to pop out for an hour or two is not a disastrous or unreasonable thing in her mind.
It is far to say that this is an attitude which of course appears to be far more reasonable than the way the mother's case had earlier been perceived to be. The reality was, I may say, a lot more generous. Indeed I hark back to the principles which I had previously referred to, particularly under section 60B(2)(b) which refers to:
“The right of children to have contact on a regular basis not only with their parents but with other people significant to their care, welfare, and development.”
And there are significant other people. The mother's parents, the mother's siblings. The father's parent, the maternal grandmother. The father's two children from his previous relationship who are J's half-sisters. They are not step-sisters, they are half-sisters because they have a common parent. It is quite clear from the evidence that has been submitted that the two elder children seem to have a fond relationship with this little boy and it must surely be to his benefit to have the company of his elder sisters.
At the same time, the mother's concern that the father would be off working for lengthy periods of time, without being in J's presence, especially at this tender age, is a matter which needs to be borne in mind. Contact arrangements are not going to work if one or other parent is so concerned about the welfare of the child that, that parent cannot respond in a calm way. So, this is a matter that needs to be taken into account, based on the position of the mother and of the attitude's of the mother as I heard her give evidence on Friday.
It is also a matter of significance that this child does appear to have some problem with a glue-ear. It is clear that this is a condition that is normally, temporary, and the disadvantages suffered by a child as the result of hearing deficiencies, which could be serious if left untreated, can be remedied by not only appropriate medical intervention but also by action by parents, teachers, carers, etcetera, to ensure that the child does not miss out on what is being said, so that his speech can develop and so that his learning can develop.
It would be quite clear that the father, as a responsible parent, would wish to co-operate with the mother in ensuring not only that this child received the proper medical treatment, but that he should be dealt with in such a way as to take into account the fact that there is some hearing loss so that the effect on the child of the hearing loss can be minimised. These are certainly matters of some concern and they are matters that the court will take into account.
The mother's suggested program in its real form was clearly designed to assist in a graduated response to the child's on-going relationship with his father. The father's program was similarly clearly designed, although set at a somewhat faster pace. I am not persuaded that, at this stage, the child should rush immediately into overnight contact.
Although, I am certainly of the view that leaving overnight contact until the age of three is overly conservative. My view is, that there should be a graduated program, bearing in mind the fact that the child has not spent much time overnight away from his mother, up to now, but that has spent and is spending significant periods of time with the father. It should be clearly in the mind of the parties, and it should be put clearly into J's mind, that he is going to be spending more time with dad and that will involve spending more time at dad's house. That he will have his own room. He can sleep there during the daytime and if he sleeps at night, well his father will be there and his grandmother will be there, his sisters will be there. So that is something he should be able to approach before the age of three.
I am certainly of the view that there is scope at this stage for longer periods of time during the day to be spent with the father. In the orders which I propose to make, whilst I too propose a graduated program, each program is going to include the requirement that contact will take place as such other times as the parties shall agree. This couple, despite their differences, have shown a maturity and a generosity of spirit to put their differences to one side and make other arrangements to benefit J and to benefit themselves for additional contact. They should be given the power to do that, to make those decisions for themselves as responsible adults and there should be some encouragement for them to do so.

What of the requirement that the father should spend a substantial part of his time on contact with the child? Actually present, rather than attending work? It should be recorded, as I said, that the mother was not intransigent about saying the father should not disappear for a minute at a time. She had certainly indicated herself quite comfortable with the idea of a couple of hours if there was a necessity.
I am certainly of the view that the father should not spend lengthy periods of time away. That if he were away for the entire day one would have to inquire whether the contact was appropriate, but it appears the father has some flexibility with his shifts. Although in all work situations he may be called into work or he may have shift changes imposed on him by his employer and there should be some flexibility so that he can contact the mother to make other arrangements.
I am of a view that there is sufficient force in the complaints about the criticism that parents direct towards each other, that I should continue orders or vary them slightly, requiring them to mute their criticisms to each other in the presence of J, especially as he grows older and understands more. There is a need that the parties should keep each other informed about medical treatment.
In fact the glue-ear matter is something where I am of the view that the father needs to be kept constantly aware of so that he can allow for it, and consider it, if there is medication or drops, whatever. He should be in a position where he should be able to imply it and understand why the treatment is necessary. In due course this child will go to school and the father needs to be part of the child's life there.
I am certainly of a view that there is a need for these parties to resolve issues, which may arise out of parenting, through discussion. Perhaps, in fact, through a post-separation parenting program rather than through expensive litigation. I am certainly of the mind that the orders which I make should be ones which can at least set a framework for the parties, rather than set-up a situation whereby in six months, or 12 months or two years they will be back in the court.
Well, all applications except as to costs will be dismissed and the matter will be removed from the pending cases list. Should either party wish to make a costs application I grant liberty to apply on seven days notice.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 13 September 2001