L and P
[2002] FMCAfam 206
•1 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & P | [2002] FMCAfam206 |
| FAMILY LAW – Parent’s different attitudes to schooling – shared parenting – “mutual trust, cooperation and good communications” – “recreational” use of drugs. Family Law Act 1975 Padgen and Padgen (1991) FLC 92-23 |
| Applicant: | P V L |
| Respondent: | T M P |
| File No: | HBM 2563 of 2001 |
| Delivered on: | 1 August 2002 |
| Delivered at: | Hobart |
| Hearing Date: | 10 & 11 July 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr M Turnbull |
| Solicitors for the Respondent: | Ogilvie Jennings |
ORDERS
That the Orders made in this Court on 14th August 2001 be and are hereby discharged.
That the children E BA P-L born 9th November 1994 and A C P-L born 16th June 1998 (“the children”) reside with T M P (“the Mother”).
That the Mother be solely responsible for the children’s day to day care, welfare and development.
That the Mother be permitted to enrol the child A C P-L at the Hutchins School.
That the Mother be permitted to continue the enrolment of the child E B P-L at the Fahan School.
That the Mother forthwith authorise those schools to provide to P V L (“the Father”) copies of all reports, notices, news sheets and other information normally provided to parents of children attending those schools and authorise those schools to communicate with the Father in relation to the education of the children.
That the Mother be permitted to provide the Principals of those schools with copies of these Orders.
That the Father have contact with the children as follows:
(a)During school terms each alternate weekend from Friday at 3.00pm (or after school as appropriate) until 9.00am (or the commencement of school as appropriate);
(b)For the entire Easter school holiday period in the year 2004 and in each alternate year thereafter;
(c)For the entire May/June school holiday in the year 2003 and in each alternate year thereafter;
(d)For the entire August/September school holiday period in the year 2002 and each alternate year thereafter;
(e)For three weeks during the Christmas school holiday period commencing at 9.00am on 14th January in 2003 and in alternate years thereafter and at 9.00am on 24th December in 2003 and in alternate years thereafter;
(f)At such other times as may be agreed between the parties;
That contact as provided for in these Orders will be facilitated as follows:
(i)E will be collected by the Father from school and returned to school or the Mother’s residence at the conclusion of contact, whichever is the more appropriate;
(ii)While A is attending child care, the Father will collect him from the child care institution and return him to the Mother’s residence by no later than 9.00am at the conclusion of contact;
(iii)When A starts school the Father will collect him from school and return him to school or the Mother’s residence at the conclusion of contact, whichever is the more appropriate.
That the Father have telephone contact with the children with the Mother to facilitate the making of the telephone calls as follows:
(a)Between 6.00pm and 6.30pm on each Wednesday and Sunday immediately following the weekend contact provided for in paragraph 8(a) hereof; and
(b)Between 6.00pm and 6.30pm on each Wednesday and Sunday during school holidays when the children are not otherwise with the Father pursuant to these Orders.
That the Mother be able to telephone the children each Wednesday and Sunday between 6.00pm and 6.30pm during all periods of school holiday contact that are provided for in these Orders.
That for the purposes of Orders No. 10 and 11 hereof the Father is to keep the Mother informed of the telephone number where he or the children may be contacted.
That neither party denigrate the other in the presence of the children.
That neither party consume any prohibited substance while the children are in that party’s care.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBM 2563 of 2001
| P V L |
Applicant
And
| T M P |
Respondent
REASONS FOR JUDGMENT
Background & Applications
The Applicant, P V L (“the Father”) and the Respondent, T M P (“the Mother”) commenced living together in November 1993 and they separated on 21st September 2000. They have two children, E B P-L born 9th November 1994 (“E”) and A C P-L born 16th June 1998 (“A”).
It is clear from the evidence of both parties that the relationship was troubled from time to time and I accept that the parties were abusive towards each other. In this regard, the Mother states that the Father was not ever physically violent towards her, but he agrees with the Mother’s evidence that he would call her “a stupid dumb fucking slut” and the like. However, I accept his evidence that things like that were said in the heat of the moment when both parties were being unpleasant to each other.
It is not necessary to detail the particular circumstances of the parties’ separation, but it is clear that the children remained with the Mother after she left the family home. Although the Father criticises the fact that she changed address on a few occasions at around that time, I have no evidence that any of the accommodation provided for the children was inappropriate.
Not long after the parties separated (in early October 2000), the Father was admitted to hospital suffering from a serious depressive illness. At that time he admitted to medical practitioners that he had been binge drinking vodka and indulging in some intravenous morphine and heroin consumption.
In his oral evidence, he conceded that shortly before that hospital admission in Hobart, when he visited Sydney, he went looking for sufficient heroin to enable him to take an overdose, and thereby commit suicide. Fortunately for him, he could not find such a heroin supply.
The Father lost his job in December 2000. The Mother says that it was a result of drug abuse and sexual harassment of a fellow worker. The Father concedes that he resigned because of the sexual harassment allegation, but states that he was not caught taking drugs at work. Given his admissions in relation to his drug taking and the fact that he was working in a social welfare area involving HIV-aids and needle exchange programs, I have no doubt that his employers were at least suspicious of his inappropriate involvement in the drug community.
After he left that employment the Father made a fairly serious attempt at suicide and was again admitted to hospital. He admits that he consumed a bottle of bourbon, took numerous tablets including anxiety medication and analgesics and made an effort to slash his wrists. It is indeed fortunate for him that this attempt to take his life also failed.
The Father had some supervised contact with the children after that and over time that grew to the contact he is currently having.
On 13th June 2001 the Father filed an Application in which he sought the following:
a)that parenting is shared equally between both parents on week about basis;
b)that hand-over of the children take place each Friday afternoon at 6.00pm;
c)that transport of the children between contact is shared equally;
d)that contact with the children at Easter and Xmas alternate each way;
e)on the children’s birthday the non-contact parent sees the child from 5.00 to 8.00pm;
f)that the parents attend mediation in regard to decisions about the children’s education;
g)that information relating to the children’s health must be conveyed to the other parent as soon as practicable.
On 14th August 2001 the parties consented to interim orders which can be summarised as follows:
a)that the children reside with the Mother;
b)that she have responsibility for their day to day care, welfare and development;
c)that the Father have contact with the children as follows:
i)each alternate weekend from Friday evening until Monday morning;
ii)by telephone each Wednesday and Sunday at 6.00pm during the week that contact was not to occur that weekend;
iii)for the second half of each of the school holidays at the end of the first and second Tasmanian school terms;
iv)for part of Christmas Day in each year;
v)for part of the children’s birthdays;
vi)for part of the Easter weekend.
Interim Orders were also made by consent to regulate such things as where the Father would collect the children at the start and return them at the end of contact. In addition, Orders were made about the provision of clothing for contact and a payment to the Father of $10 to defray some of his transport costs.
Although there appeared to be some minor difficulties in relation to contact shortly after the Orders were made, the evidence was clear that the Father has been having contact essentially in accordance with the Orders and on a few occasions in addition to that provided for in the Orders.
The Father also made a subsequent application to restrain the Mother from taking the children out of Tasmania. That was resolved by the Court making orders that required her to return the children to Tasmania after a holiday in Queensland, visiting the maternal grandparents.
The Father commenced and discontinued contravention proceedings.
Strangely, the Mother did not file a Response to the Father’s initial Application until the first day of the hearing. That was probably because of a number of factors, including her change of solicitors and the need to deal with the injunction and contravention proceedings.
In her Response, the Mother seeks orders which can be summarised as follows:
a)That the children reside with her;
b)That she be responsible for the children’s day to day care, welfare and development;
c)That she be solely responsible for all decisions regarding where the children will go to school;
d)That the Father have contact as follows:
i)Each alternate weekend from Friday at 3.00pm until Monday at 9.00pm such to be suspended during school holiday contact;
ii)For the entire Easter school holiday period in 2003 and in alternate years thereafter;
iii)For the entire May/June school holiday in 2003 and in alternate years thereafter;
iv)For the entire September school holiday in 2002 and in alternate years thereafter;
v)For half the Christmas school holidays with Christmas Day alternating;
vi)Telephone contact each alternate Wednesday and Sunday in the week when the Father is not otherwise exercising alternate weekend contact.
e)That the Father be responsible for collecting the children from and returning them to school, day care or the Mother’s home as appropriate;
f)That the Father not denigrate the Mother to the children;
g)That the Father make all reasonable efforts to ensure that the children are in bed by 8.00pm on Friday, 7.30pm on Saturday and 7.00pm on Sunday;
h)Other specific issues in relation to cleanliness, clothes and the like.
At the start of the hearing of this matter, the Mother’s counsel indicated that his instructions in relation to Christmas holiday contact had changed and that contact should be for a period of three weeks commencing on 24th December and 14th January in alternate years.
The Law
Section 60B of the Family Law Act 1975 (“the Act”) states:
60B(1) [Object of Part] 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.
60B(2) [Principles underlying object] 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; 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.
Section 65E of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Family Law Act gives clear guidance to the court in relation to what must be considered when determining what is in a child’s best interests. Subsection 68F(2) sets out a number of matters that the court must consider. They are:
·any wishes of the child and any factors that the court considers relevant to the weight that should be given to those wishes;
·the nature of the child’s relationship with each parent and with other persons;
·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 the child has been living;
·the practical difficulty and expense of the child having contact with a parent and whether that will substantially affect the child's right to maintain a relationship and direct contact with each parent on a regular basis;
·the capacity of each parent (or any other person) to provide for the needs of the child, including emotional and intellectual needs;
·the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court considers relevant;
·the need to protect the child from physical or psychological harm which is or may be caused by abuse, ill-treatment, violence or other behaviour, or by being exposed to such behaviour that is directed towards, or may affect, another person;
·the attitude of each parent to the child and to the responsibilities of parenthood;
·any family violence involving the child or a member of the child's family;
·any family violence order that applies to the child or a member of the child's family;
·whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
·any other fact or circumstance that the court thinks is relevant.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 the Full Court of the Family Court of Australia (consisting of Nicholson CJ, Fogarty and Lindenmayer JJ) considered the interrelationship of Sections 60B, 65E and 68F. They said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”
Evidence
The Father relied upon his affidavit filed 21st May 2002 and the oral evidence of his new partner.
The Mother relied upon her affidavit filed 31st May 2002, an affidavit of her father, an affidavit of the Executive Officer of the Child Care Centre that A attends and an affidavit of E’s class teacher.
With the exception of E’s teacher, all deponents were cross-examined.
Findings & Discussion
From the evidence of the Father, it is quite clear to me that he has not yet accepted and adjusted to the breakdown in the relationship between himself and the Mother. He blames her totally for that breakdown and it is quite clear that, notwithstanding that he has another partner, the wounds have not yet healed.
The Father stated quite clearly that he does not believe that he is at fault at all for the breakdown in the relationship between himself and the Mother. It is also clear that he has not forgiven her for forming another relationship.
The Father stated clearly that he does not trust the Mother and that there will always be a certain element of doubt in relation to anything that she does.
The Father believes that there are some basic differences in the parenting styles of himself and the Mother. In this regard, it is clear that he sees her as being more of a disciplinarian, who is likely to use corporal punishment. On the other hand, the Father is a pacifist and does not believe in any violence whatsoever. However, I accept that the Mother does not use corporal punishment regularly and I find that in matters of discipline, the difference between them is more imagined than real.
It is also clear that in relation to the children’s education, the Mother and the Father are poles apart. The Father claims to have very firm views about not wanting to have his children educated in the private school system. He is a keen supporter of the public school system and his views in relation to this appear to be the product of thirteen years in the Catholic School system and the fact that he is a “devout atheist”. The Father is concerned that the Mother has enrolled E in a non-denominational Christian girls’ school. However, other than obtaining the school prospectus, he has not really made enquiries about how much Christian education she will receive. Further, it became apparent his objections to a Christian education related more to his firm belief that God does not exist than to any opposition to Christian values. It was quite clear that he did not really object to his children learning Christian values, provided that is not “fundamentalist”.
These particular children are fortunate that the Mother’s own father will fund both children’s private school education until they complete their secondary schooling. He sees this as a way of helping his daughter because he helps her siblings in other ways.
The Father made it quite clear that he accepts that E has settled well into the private school that she is attending and it seemed to me that he was not really pressing for her removal from that school. Indeed, I gained the clear impression that the Father’s main objection to her attending that particular school is the fact that he was not consulted in relation to her enrolment.
The Mother had stated in her affidavit that the Father constantly undermines E’s schooling and calls her school the “poo and wee” school. The Father says that he did not say that but that when he was discussing with E the fact that the Hawthorn football club’s colours are the same as “poo and wee”, she noted that her school uniform had the same colours. That may well be how things happened. However, I find it to be an unusual subject for discussion with a seven year old child, and speaking of the school uniform in such pejorative terms can only make the child think that her father does not think highly of her school.
At this stage, A has not yet started school. In his evidence, the Father indicated that if the Court is to permit A to attend a private school, he would prefer that A attends the Quaker school in Hobart. He had heard that the Mother had made some enquiries about enrolling A at an all boys Anglican school and he is opposed to that. He says that that particular school is “elitist”.
The Father would not accept the suggestion by counsel for the Mother that it displayed a certain arrogance on his part to suggest that A should attend the Quaker school in Hobart if he had to attend a private school. This suggestion was put to him on the basis that the particular school is the most expensive private school in Southern Tasmania and the arrogance came from the fact that he would not be paying any of the fees. However, I accept that the Father has not really considered the question of the fees in his preference for that school and that it is the Quaker support for pacifism that appeals to the Father. Further, he prefers co-educational schools to single-sex schools.
As it happens, the Mother has made enquiries of the Quaker school but the waiting lists are such that the child cannot start at that school until high school. She has also made enquiries of the Anglican boys’ school by having a meeting with the Deputy Principal and a tour of the school. She is impressed with the school and it is of some significance that she is currently completing her own teaching qualifications.
The Mother is currently engaged in full-time study at University. She recently completed a “prac” at one of the local State schools that is preferred by the Father. She conceded that it is a very good school but she says that class numbers are high and that, in her view, the children there do not get enough individual attention.
In relation to the children’s education, the legal position is that the parties are equally responsible for the decision making. However, it is quite clear that the parties in this matter have different views and are unable to agree. When such a situation arises, it is clearly necessary for the Court to make a determination.
In this particular case, the children are fortunate that they have a grandparent who is prepared to pay the bills if they are to attend private schools. Further, it is quite clear from the evidence of E’s teacher that she is doing well at the private school that she is currently attending. I can see no reason why her schooling should be changed.
In relation to A, it is clear that the Mother has made reasonable enquiries and has formed a view that A should attend the Anglican boys’ school. The evidence is that the Quaker school is not an option, because A cannot be enrolled at this time. Consequently, I can see no reason why the Mother should not be permitted to enrol A at the school that she now prefers. However, it is clear that the Father should be kept fully informed about the children’s progress at their particular schools.
The other major area of dispute between the parties is whether the children should live equally with each parent (i.e. shared parenting) or predominantly with one parent. Those options must also be looked at carefully, with particular reference to the relevant parts of subsection 68F(2) of the Act.
It does not seem to me that the children’s wishes are particularly relevant. At this stage, they are only aged seven years and four years. Although it is clear that A appears to kick up a fuss when he has to return to his Mother’s home at the end of a contact visit, I do not find that unusual for a boy of his age
It is quite clear from the evidence that both children have loving relationships with both parents. That is stated clearly in the mother’s affidavit and the Father did not seek to deny that when he was given an opportunity to respond orally to that affidavit material.
I need to consider the likely effect of any changes in the children’s circumstances that would be caused by a shared parenting arrangement. In this regard the father says that it will be beneficial for the children but the Mother says that a shared care arrangement would have a devastating effect on the children.
In the past, shared parenting was referred to as “joint custody”. In Padgen and Padgen (1991) FLC ¶92-231, Rowlands J said:
“Counsel for the husband drew my attention to an article on Joint Custody by Mr. Schepis and Ms. Formica in the December 1990 issue of the Australian Family Lawyer. From this learning he developed an argument that the parents' geographical proximity, their compatible parenting values, the adaptability of the child and an ability of both parents to properly supervise him, together with mutual trust, co-operation and good communications suggested that circumstances existed which allowed joint custody in this case.
In considering the joint custody issue I gain assistance by viewing the facts of the present case in the light of these criteria. The list of preconditions mentioned is a useful starting point in a trial where joint custody falls for serious consideration. However the outcome always depends upon the facts of the particular case and the helpful criteria cannot overshadow the factors recited in the legislation in the search for where the welfare of the child lies.”
It is clear that in this particular case “mutual trust, cooperation and good communications” just do not exist.
In Forck and Thomas (1993) FLC 92-372, the Chief Justice of the Family Court of Australia reviewed some of the research into shared parenting. That research seems to come to similar conclusions to the research referred to in a Swedish paper by Lars Tornstam that was provided to me by the father. I have no doubt that when parents can communicate, with the genuine best interests of their children in mind, a shared parenting arrangement can work. However, it is clear that there is virtually no communication between the parties in this case and it does not really matter who is responsible for that. The Father blames the Mother and the Mother blames the Father. As is usual in family law matters, both parties need to take some responsibility for the breakdown of their relationship, and the poor relationship that they currently have.
It is a fact that Courts very seldom make orders for a shared parenting arrangement and it seems to me that the reason for that is quite simple. If the parties’ relationship has reached such a low point that they need a Court to tell them what is in the best interests of their children, they are unlikely to have the necessary “mutual trust, cooperation and good communications”.
It seems to me that there are no significant difficulties or expense associated with contact. However, I am sure that the Father will not agree with me in relation to that. He lives at Kettering in Tasmania and the Mother lives in Hobart. There was clearly a dispute about the costs of travel and the interim orders in this matter provide for the Mother to pay the Father $10 each contact weekend “when the Father is required to pay and is paying to the Mother child support in excess of the minimum statutory amount”.
Kettering is not particularly far from Hobart and it is quite clear that the Mother is primarily responsible for the financial support of the children (apart from the school fees which her father is paying). The contribution being made by the Father is not really a fair contribution towards the cost of supporting his children. As a consequence, it is not my intention to provide for any payment to him in relation to contact visits, notwithstanding that it was his view that the payments to him should be increased to at least $15.
I must take into account the capacity of the parents to provide for the needs of the children, including their emotional and intellectual needs. In this regard, I find that the Father’s negative attitude towards the Mother and his failure to come to terms with the breakdown of their relationship impacts adversely upon his capacity. However, that is a finding that I make relative to the Mother’s capacity. Clearly, he has a capacity to provide for those needs but at present the Mother has a better capacity.
I am required to consider issues of violence and abuse and how they may impact upon the children. In this regard, it is clear that the Mother accepts that the Father was never physically violent towards her and she admitted in her evidence that, on at least one occasion, she punched the Father. That was when he destroyed her mobile telephone so it is clear that the Father was not “innocent” in relation to the incident. However, the parties are now separated and that behaviour is unlikely to occur again. Certainly, there is no evidence that such events prior to the breakdown of their relationship have had any adverse impact upon the children.
I am also required to take into account the attitude of the parents to the children and to the responsibilities of parenthood. In relation to this, it is clear that both parents are trying to do the best they can. They both love their children very deeply. Parenthood is not an exact science and in my view, while there are minor differences in parenting styles, it is clear that both parents are generally good parents.
Having said that, I must express some concern in relation to the Father’s somewhat casual attitude to the “recreational” use of illegal drugs. Although the Father and his partner appear to suggest that they do not smoke marijuana in the presence of the children, I gained the clear impression from his partner’s evidence that there was at least one occasion when they were “caught” smoking it by the children when they returned to the house unexpectedly from playing.
In my view, the Father needs to take a serious look at his attitude in relation to drugs and reflect upon whether that attitude really sits well with responsible parenthood.
It is perfectly clear to me that a shared parenting arrangement will not work in this case. Consequently, it seems important to make orders that will provide for the stability of the children. In this regard, they have been living predominantly with their Mother since separation and that should continue. I will therefore make orders of the type sought by the Mother in relation to residence and contact, with some minor exceptions.
The Mother was of the view that the Easter and school term holidays should alternate on the basis that the children spend the entire holiday with one parent in one year and with the other in the next. She says that this will enable the children to be taken inter-state to visit relatives and to have a reasonable holiday with each parent on an alternating basis. There is some merit in that argument, but the Father is opposed to it.
Further, the Mother says that the Christmas holidays should be shared on the basis of the Father having three weeks contact on an alternating basis commencing on 24th December in one year and on 14th January in the next year. The Father opposes that and it is his view that the children should spend part of Christmas Day every year with each parent. He sees nothing wrong with the children flying all the way to Queensland from Tasmania on Christmas Day to visit the Mother’s parents. It seems to me that his attitude puts his interests before those of the children and that the Mother’s proposals for sharing holidays are the more sensible, given that both parties have relatives living inter- state.
The interim orders provide for the Father to have telephone contact each Wednesday and Sunday in the non-contact week at 6.00pm It is clear that the parties find that a little restrictive and would prefer to have a range of time during which telephone calls can be made. That seems sensible and I will therefore order that the telephone calls be between 6.00pm and 6.30pm on those particular days. Further, the Mother will be able to telephone the children on a similar basis when they are enjoying holiday contact with their Father.
It became clear during the hearing that a number of specific issue orders sought by the Mother are no longer required because the children are now older.
I will make orders to provide for the matters set out in these reasons.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 1st August 2002
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