M and C
[2002] FMCAfam 39
•13 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & C | [2002] FMCAfam 39 |
| CHILDREN – Best interests. |
| Applicant: | H J M |
| Respondent: | G L C |
| File No: | ZD2213 of 2000 |
| Delivered on: | 13 February 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 6 February 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Allan |
| Solicitors for the Applicant: | North Australian Aboriginal Legal Aid Service |
| Counsel for the Respondent: | Ms Harbour |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
ORDERS
That the children S J C-M born the 20th February 1996 and D K C-M born the 11th May 1997 (“the said children”) reside with the mother and she be responsible for making decisions concerning their day to day care, welfare and development.
That the parties be jointly responsible for decisions regarding the said children’s long term care, welfare and development.
That the father have contact with the said children as follows:
In the Northern Territory commencing December 2002:
(a)For the first half of each gazetted Queensland Christmas school holiday commencing with the first half in 2002 and continuing with the second half in 2003 and alternating between the first and second halves each year thereafter;
(b)For the whole of the Queensland mid year school holiday commencing in 2003;
In B, Queensland:
(c)At times agreed between the parties provided that the father provide 14 days written notice to the mother of his intention to travel to B, details of the venues at which contact is to occur and a telephone contact number for the children;
(d)By forwarding to the children letters and gifts;
(e)By telephone with the telephone calls to be initiated by the father:
(i)Each Saturday 5.00pm Queensland time;
(ii)Each year on the children’s birthday;
(iii)On the father’s birthday;
(iv)At 10.00am B time on Father’s Day.
That the father pay all costs associated with the travel costs of contact in the Northern Territory and Queensland other than the following expenses:
(i)If the mother judges it appropriate that the children be accompanied by a flight attendant on any travel to and from the Northern Territory she shall pay the costs of such accompaniment.
(ii)The mother shall pay the sum of $150.00 in respect of the cost of each child travelling to and from the Northern Territory pursuant to Order 3(a)(b) of these orders.
The father is to book all airline travel for the children and provide the mother with details of the flights 14 days in advance of travel.
That the mother and father do all acts and things necessary to ensure that the children board the flights on which they are booked and collect the children from the airport at which they are scheduled to arrive.
That each party keep the other informed at all times of that parties current residential address and telephone contact number.
During the first period of contact as set out in Order 3(a) the father return and collect the children to and from the maternal grandparents at the maternal grandparents home as follows:
(i)During the first week of such contact each evening from 7.00pm until 9.00am the following morning;
(ii)During the second week of such contact each second evening from 7.00pm until 9.00am the following morning;
(iii)During the third week of such contact each third evening from 7.00pm until 9.00am the following morning; and
(iv)That otherwise during subsequent periods of contact the father ensure the children have contact, including telephone contact with the maternal grandparents of not less than 48 hours in duration.
That the mother first consult with the father before changing the school which the children attend.
That the mother and the father notify the other parent forthwith if either child is hospitalised and/or referred to a medical specialist for treatment.
That the father refrain from consuming illicit drugs during any period of contact and ensure that the children are not exposed to an environment in which illegal drugs or substances are consumed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD2213 of 2001
| H J M |
Applicant
And
| G L C |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern what contact orders should be made in respect of two children S J C-M born 20th of February 1996 and D K C-M born the 11th of May 1997.
The parties to the proceedings are the parents of the two girls concerned. Their father H J M “the father” and their mother G L C “the mother”.
The two girls currently live with their mother in B. The father lives in D. The father seeks that he should have defined periods of contact to the girls in D during school holidays. The mother does not oppose such contact provided certain conditions are imposed. There are also issues between the parties that relate to the payment of the costs of the contact. It is the determination of what, if any, conditions should be imposed on contact and what, if any, contributions should be made by the parties towards the costs of implementing that contact that are the issues before the Court.
Applications
The father is the applicant in these proceedings. His counsel submitted a minute of the orders he is seeking at the commencement of the proceedings on the 6th of February 2002. The orders he seeks are as follows:
(1)That the applicant father have contact with the children of the relationship S J C-M born 20 February 1996 and D K C-M born 11 May 1997:
(A)In the Northern Territory:
(a)For two weeks during the Queensland mid-year holidays each year starting in 2002 with the applicant father having contact from 22 June until 8 July 2002,
(b)For half each Christmas holidays gazetted for Queensland schools each year with the applicant father having the children either during the first or second half of the holidays and in particular of:
(A)for the first three weeks of the holidays starting in an even numbered year the first such contact to start on 14 December 2002; and
(B)the last three weeks of the holidays starting in December of odd numbered years the first such contact to start at the end of the last term in December 2003; and
(B)in B at reasonable times as agreed between the parties provided that the applicant father give the respondent mother forty-eight (48) hours notice of his intention to travel to B.
(C)By forwarding them letters and gifts,
(D)By telephone:
(a)Each Saturday at 5.00pm
(b)Each year on each child’s birthday; and
(c)On the applicant father’s birthday and father’s day each year
(2)That for the purposes of contact provided for in the previous order:
(A)Once both children have attained the age of five (5) years they, unless the parties agree otherwise, travel to and from the Northern Territory by air unaccompanied and the applicant father shall book the children’s flight,
(B)That the cost of airfares be borne equally between the parties,
(C)The applicant father inform the respondent mother of flight details and the respondent mother do all acts and things necessary to ensure the children board the flights on which they are booked including delivering the said children to the relevant check in counter 40 minutes prior to departure and collect the said children from their return flight,
(D)The applicant father inform the respondent mother of the phone number and address where the children will be staying during contact prior to contact taking place,
(E)Nothing in these orders prohibits the applicant father from taking the children to D R or the T I to visit their paternal grandparents provided he has given the respondent mother notice of his intention to do so in accordance with paragraph 2 (b) of these orders,
(F)The applicant father ensure that the said children are not required to share a bedroom with anyone else and will have a bedroom of their own during contact,
(G)While the said children are in D the applicant father ensure that they have contact with the maternal grandparents P and M C; and
(H)The applicant father keep the respondent mother informed of his address and phone number and the respondent mother shall phone the applicant father so that phone contact can take place each week, on each child’s birthday and on the applicant father’s birthday.
(3)That the respondent mother keep the applicant father informed of the children’s residential address and phone number.
(4)That the respondent mother be restrained and an injunction be granted restraining the respondent mother from changing the said children’s residential address or school without first giving the applicant father thirty(30) days notice in writing.
(5)That the respondent mother notify the applicant father forthwith if either child is hospitalised or referred to a specialist for diagnosis or treatment.
(6)The Court notes that without admission both parties undertake not to expose the children to an environment in which illegal drugs or substances are consumed.
The mother is the respondent in the proceedings. Her counsel also submitted a minute of the orders she is seeking from the Court. The orders she seeks are as follows:
(1)That the children S J C-M born 20 February 1996 and D K C-M born 11 May 1997 reside with the mother and she be solely responsible for decisions regarding their day to day care, welfare and development.
(2)That the parties be jointly responsible for decisions regarding the children’s long term care, welfare and development.
(3)That the father have contact with the children as follows:
(A)In the Northern Territory:
i.For the whole of the Queensland mid-year school holidays;
ii.For the first half of the Queensland Christmas school holidays in the year 2002/2003 and alternate years thereafter, otherwise for the second half of the said Christmas school holidays.
(B)In B, Queensland at times agreed between the parties provided that the father provide 14 days prior written notice to the mother of his intention to travel to B, details of the venues at which contact is to occur and a telephone contact number for the children.
(C)By forwarding to the children letters and gifts.
(D)By telephone:
(a)Each Saturday at 5pm Queensland time to be initiated by the father
(b)Each year on the children’s birthdays
(c)On the father’s birthday
(d)At 10am B time on Father’s Day to be initiated by the father.
(4)That for the purposes of contact provided for in paragraph 3 herein:
(a)The father pay all costs associated with contact including travel costs and provide to the mother at least 14 days prior to the commencement of any contact in the Northern Territory, a copy of the children’s return airline tickets from B to D and the addresses and phone number where the children will stay during contact.
(b)Where contact occurs in the Northern Territory, the father arrange for the children to be escorted by a flight attendant and provide written notification to the mother confirming such arrangements at least 14 days prior to the children’s departure.
(c)That the mother and the father do all acts and things necessary to ensure that the children board the flights on which they are booked and collect the children from their respective airports.
(d).
i.that for the first two contact occasions in Darwin the father’s contact as referred to in paragraph 3(I)(a) and (b) and 3 (b) herein be from 9am to 7pm each day, the father to transport the children to and from the home of the maternal grandparents, P and M C during contact in the Northern Territory and from and to an agreed venue when contact occurs in B.
ii.Thereafter during contact in the Northern Territory the father and the children have reasonable contact, including telephone contact, with the maternal grandparents with face to face contact at times agreed between the father and the said grandparents, such contact to be no less than 2 days in each contact occasion.
(e)that the mother be permitted to have reasonable telephone contact with the children while they are in the father’s care.
(5)That each party keep the other informed at all times of that party’s current residential address and telephone contact number.
(6)That the father be restrained and an injunction be granted restraining him from taking the children to the T I or D R, Northern Territory during contact occasions or from leaving the children in the care of either the paternal grandmother or the paternal grandfather.
(7)That the mother first consult with the father before changing the school at which the children reside.
(8)That the mother and father notify the other parent forthwith if either child is hospitalised and/or referred to a medical specialist for treatment.
(9)That the father take all steps necessary to ensure that the children are not exposed to an environment in which illegal drugs and substances are consumed.
During the course of the hearing the father indicated that he was not in a position to commence contact to the children in D until the Christmas school holidays in 2002/2003. He also indicated that he would seek telephone contact on Father’s Day as proposed by the mother. Finally he indicted that he does not oppose the making of a residence order in favour of the mother.
Background
The father was born on the 18th of October 1976 and is currently 25 years of age. The mother was born on the 11th of May 1977 and is currently 24 years of age. Both parties were born in D and grew up here. The parties met at secondary school in 1995 when they were both very young. They were involved in a relationship between 1995 and late 1999, during which S and D were born. The mother was 18 when S was born and the father was 19.
Both parties have in part an Aboriginal ancestry. In particular the applicant’s father was born in the vicinity of D R but was removed from there at an early age and grew up at G P on the T I. Mr M Senior lives at W, an out station in the P area near D R. The applicant’s mother was born in A S but now lives at S B on the T I where she is employed as a Drug and Alcohol Counsellor. The father has a large extended family in Darwin.
The mother’s parents, M and P C live in Alawa, a northern suburb of Darwin. In the event that contact with the father and the children takes place in Darwin it is the mother’s wish that Mr and Mrs C be involved in that contact.
The mother left Darwin with S and D in May of 2000 and went to live in B. Neither she or the children have returned to Darwin since that time and the father has not been to B. As a result the father has not had physical contact to the girls for a considerable period of time.
Both the father and the mother have re-partnered since they separated. The father has commenced a defacto relationship with L T. He and Ms T have a five-month-old son, H Junior. The father, Ms T and H live in a rented unit in B, also a northern suburb of Darwin.
The mother has commenced a defacto relationship with D C-C. She, Mr C-C, D and S live in A a suburb of B. They share the home with the mother’s sister, K C.
The father is employed as an aboriginal resource officer. Ms T is not in the paid workforce. Both the father and Ms T receive some government benefits to augment Mr M’s income.
The mother receives a government parenting payment. Mr C-C is employed by the Queensland Government in information technology. He receives a modest salary.
Neither party is in a robust financial position.
The father commenced these proceedings in December of 2000. He initially sought a Commonwealth Information Order in order to ascertain the whereabouts of the two children concerned and that other interim contact orders be made.
On the 5th of February 2001 Federal Magistrate Scarlett made the following orders:
b)That the secretary of Centrelink or such person as is authorised by him or her so to do provide to the Registrar of this Court such information regarding the location of the children S J C M born 20 February 1996 and D K C M born 11 May 1997 as is contained in or comes into the records of the said Department.
c)That the Manager of the Australian Central Credit Union Darwin provide to the Registrar of the Federal Magistrates Court such information relating to the whereabouts of the said children as is contained in or comes into the records of the credit union.
d)That leave be granted for the Registrar of this Court to disclose to the solicitor for the applicant any address supplied by Centrelink or the Australian Central Credit Union.
e)That the mother give the father phone contact with the said children;
i)At least once a week;
ii)On each child’s birthday;
iii)On the father’s birthday;
And that for the purpose of this contact the mother phone the father.
f)That the father have contact with the children by sending them letters and gifts.
g)That the father have face to face contact with the children in Darwin twice each year to include 25 December every second year.
h)That the father ensure that the children have contact with the maternal grandparents P and M C while they are staying with him.
i)That the mother notify the father forthwith if either child is hospitalised or referred to a specialist for diagnosis or treatment.
j)That the mother keeps the father informed of the children’s residential address and phone number.
Thereafter it is common ground between the parties that regular weekly telephone contact has taken place between the father and S and D, but not as yet any physical contact.
The issues
It is the mother’s position that during the relationship that the father had limited involvement with the care of S and D and that certainly for a period in excess of 2 years he has had no physical contact with them at all. As a result, she is concerned about the ability of the father to provide adequate care for the girls for extended periods of time in Darwin. In addition, she asserts that there is as yet no strong relationship between the girls and Mr M and that as a result there should be a period of carefully monitored introductory contact. For these reasons, she wishes the children to return to her parents home in A each night during the first two periods of block contact in Darwin. The father opposes what he sees as an undue restrictions on his contact. He asserts that his relationship with the two children was established during the time prior to the mother leaving Darwin and has been further fostered by the telephone contact he has enjoyed with the girls each week since February of 2001.
As the evidence reveals neither party is financially well off. The cost of air travel between Darwin and B represents a significant financial burden for both of them. The mother wishes to have a flight attendant accompany the children to and from Darwin. This service will also have to be paid for. It is the mother’s view that the father should bear all the costs associated with travel to and from Darwin. It is the father’s position that as the mother has chosen to live with the children in B, she should pay half of the travel costs.
The mother has raised concerns about the father’s use of marijuana and seeks orders to prevent the children being exposed to marijuana use during all periods of contact.
As has already been indicted the father is of Aboriginal ancestry. His father identifies as part of the Stolen Generation. Mr M Senior has established himself on his traditional country near D R. The applicant’s mother is also a person of aboriginal ancestry. She lives and works on the T I. The father wishes in time to take S and D to both the T I and to his father’s out station at W. He wishes the girls to form a bond with his parents and to visit their country. The mother has raised concerns about the children visiting both the T I and W. She believes that these communities are unsafe for children. As a result she has sought orders from the Court to prevent the children going to either the T I or D R or being left in the care of the paternal grandmother or paternal grandfather. The father opposes these orders and believes that they are unduly restrictive of his contact and given their nature are not in the children’s best interests.
The evidence
Both parties were represented by counsel at the hearing before me on the 6th of February 2002. The father relied on the following affidavit material:
i)An affidavit of himself filed on the 4th of February 2002.
He also gave additional evidence in the witness box and was cross examined by counsel for the mother.
The mother relied on the following affidavit material:
i)Two affidavits of herself filed on the 30th of October 2001 and the 22nd January 2002 respectively;
ii)Of her mother M C filed the 22nd of January 2002;
iii)Of D C-C filed the 22nd of January 2002
She and Mr C-C gave evidence from B by way of a video link. Mrs C gave evidence in Darwin. The mother, Mrs C and Mr C-C were each cross examined by counsel for the father.
One of the most striking features of this case is the age of the parties when they became involved with each other. The mother met the father when she was in Year 10 at high school. Both of them were still in their teens when they became parents.
My impression of the father is that he is still somewhat immature. On several occasions during his thorough and competent cross examination by counsel for the mother, he broke down in tears, especially when he was asked questions about his relationship with his daughters. As a result, I have no doubt about the depth and strength of his feeling for S and D and his desire to see both of them. However, it seemed to me, that he has not attempted in any practical way to turn his mind to the very real practical difficulties that confront him in bring his plans for contact to his daughters to fruition. Nor has he considered in any depth the feelings and apprehensions of the mother in this regard.
On the other hand, both the mother and Mr C-C were impressive witnesses. In particular, the mother struck me as a mature and thoughtful person. It is to her credit that she wishes S and D to have a meaningful relationship with their father. As a result of my impressions of the mother, it is my view that her expressed concerns regarding contact should be regarded seriously. She did not seem to me to be a mother who was inventing concerns to prevent contact.
I found both parties to be basically truthful witnesses. However the father’s evidence was coloured to a large degree by his emotional involvement in the matter and to some extent by a level of resentment towards the mother. Where there is a divergence in the evidence between the parties, I prefer the evidence of the mother. This is particularly so in the case of their respective accounts of what occurred between them in Darwin prior to the mother leaving with S and D in May of 2000.
Clearly the parties were very young when they became involved with each other and as a result their relationship was unstable and turbulent. The mother categorises it as being an on/off relationship and this seems to me to be an apt description.
I accept the mother’s evidence that the father was violent towards her on several occasions. The father acknowledges that he struck the mother at least once and to his credit is deeply regretful of it. It is not necessary to catalogue the other instances of violence that the mother has raised, however I accept the mother’s evidence in regards to these matters and accept that she was frightened of the father from time to time.
As a result of the nature of the relationship between the parties I am satisfied that it was the mother who bore the brunt of the responsibility for caring for S and D during the time the girls where in Darwin and that the father’s involvement was not as extensive as he would have the Court believe.
I also accept that Mr and Mrs C were heavily involved with the care of both children from the time they were each born. The mother was aged 18 when S was born. She was living with her parents in A at the time. It would seem inevitable that in those circumstances Mrs C in particular would play a significant role in S’s life.
The only time the parties lived together alone was for about a year from February 1997 to February 1998 when they lived in a flat in M. However during this time the mother returned to her parent’s home from time to time. She was living with her parents when D was born on the 11th of May 1997. I accept the mother’s evidence that the father was a significant user of marijuana at this time and was also away from home for considerable periods of time. When cross-examined about his use of marijuana it seemed to me that he was extremely evasive in his answers regarding this topic.
From February 1998 to May 2000 the mother again lived with her parents in A. It seems that she had not finally determined to end her relationship with the father. She made her decision to finally separate from him in September of 1999. She continued to live with her parents in A apart from a brief trip to Sydney at the end of that year.
The father deposed that it was his belief that the mother finally left Darwin at the end of 1999. However, it is clear from the A school records that were tendered on behalf of the mother, that she and the children remained in Darwin until May of 2000. It was Mrs C who enrolled S at the A Primary School. As a result of this evidence it seems clear to me that from the time of separation and certainly from the end of 1999 that the father had little if any contact with the two children. Certainly in the first five months of 2000 it is clear to me that Mr and Mrs C had daily contact with the two girls.
As a result of all these matters it is clear to me that by Christmas time 2002, when it is planned that the father will have his initial period of contact with the girls, that it will be well over 3 years since he last saw them. Given their tender years, on any view, this is a significant period of time. In December 2000, Mrs C travelled to B and spent 3 months with her daughter and grand-daughters. Mrs C is planning to travel to B in the middle of this year (2002) to spend a period of a month with her daughter and S and D. In my view, the evidence indicates that there is a significant relationship between Mrs C and the two children. It cannot be said in my view that she is a stranger to them.
Given the turbulent nature of the relationship between the parties I can well understand the apprehension the mother would feel at the prospects of contact between the father and the children resuming in Darwin without some involvement from her mother. I also accept the mother’s evidence that the father has never cared for either children for an extended period of time.
Since the orders for telephone contact were made by Federal Magistrate Scarlett on the 5th of February 2001, telephone contact between the father and the children has occurred on a regular weekly basis. The mother has initiated the phone calls to the father. It is also clear that the children speak regularly to their maternal grandmother and grandfather by telephone. The father is employed as an Aboriginal Resource officer. He is employed by the Northern Territory Education Department and works with school children in a classroom situation. He is a casual employee and his employment is renegotiated each term. During school holidays he receives government benefits. He and Ms T and H Junior share a two bedroom unit in B. He proposes that contact take place in his unit. The father is not proposing to take the two girls to either the T I or W for the next 2 years. However he anticipates that his mother and father who regularly visit Darwin, would come and see the children during his periods of contact.
I accept the father’s evidence regarding his current financial circumstances. He and Ms T receive the following income each week:
i)Father’s income $450.00
ii)Rent assistance $52.50
iii)Ms T’s family allowance $200.00
iv)TOTAL: $702.50
Due to his low level of income, the father pays the minimum possible amount of child support of $5.00 per week for each of the two children. I also accept that the father and Ms T have fixed weekly expenses of $461.53. However, it would seem to me that these expenses are more likely than not to be understated rather than overstated. To date the father has been able to save the sum of approximately $600.00 which he hopes to use for airfares for the two girls to visit him in the Christmas holidays of 2002/2003. Other than the token payment of child support to which reference has already been made and the purchase of some clothes and presents for the girls, the father has not contributed to the financial support of D and S. This burden has been met by the mother and Mr C-C.
The mother’s and Mr C-C’ financial position is as follows. They have the following sources of weekly income:
i)Mr C-C’s weekly net salary $340.00
ii)Ms C’s family allowance $215.00
iii)Child support $10.00
iv)Rent assistance $50.00
v)Board from K C $50.00
vi)TOTAL: $665.00
The mother estimates her fixed weekly expenses as follows:
vii)Rent $165.00
viii)Food $220.00
ix)Electricity $20.00
x)Gas $10.00
xi)Phone $27.00
xii)Public transport $40.00
xiii)TOTAL: $482.00
Needless to say, this list of expenses does not include the costs of providing clothing either for herself, Mr C-C and more importantly the two children. In her evidence the mother indicated that she had recently had to expend the sum of $100.00 in order to buy a school uniform for D. The mother does not have any significant assets to speak of and currently has $4.00 in her bank account.
As a result of this analysis it is apparent to me that neither party is in a strong financial position. However, given that the father has been able to save some money it seems to me that he is in a marginally stronger financial position than the mother. Mr C-C is under no legal obligation to support either D or S. However without assistance from him the mother’s financial position would be precarious.
During the current year the mother plans to start attending university on a part time basis. She plans to study one subject this year. She has no plans to join the workforce in the near future and will remain the full time carer for both S and D.
The law
Applications for contact orders are parenting orders. They arise in proceedings that are conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlaying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests, the following:
a)“children have a right to know and be cared for by both of 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 of their parents and with other people significant to their care, welfare and development;
c)parents share duties and responsibilities concerning the care, welfare and development of their children;
d)parents should agree about the future parenting of their children.”
In the present case, regrettably the parties are unable to agree on all the future parenting arrangements for S and D. However to their very great credit they have been able to reach agreement about most matters.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the children concerned as being the paramount consideration in the making of a determination concerning the care of children.
The Full Court of the Family Court in the case of Brown and Pederson (1992) FLC 92-271 said as follows:
“Proceedings for custody or access are not to be view as adversary proceedings in the ordinary sense, but as an investigation of what order will best promote the welfare of the child” (at 79011)
In deciding the contact arrangements that would promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various subsections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance the Court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. Ultimately in each case it is a question of the Court applying in a common sense way, the individual sections of section 68F(2) so as to achieve the best interests of the children concerned in a particular case.
Section 68F(2) factors – determining the best interests of the children
a. The children’s wishes
The question of what weight is to be given to the wishes of children will vary in each case. In the present case S is almost 6 and D is almost 5. These children have not been in Darwin for almost 2 years and have not seen their father for a significant period of time. Given the children’s ages and these other factors in my view their wishes are not a significant factor in this matter. I accept however that as far as the father is concerned that the children have indicated to him that they are excited at the prospect of coming to Darwin to see him and their half brother H Junior.
b. The nature of the relationships between the children, their parents and other significant people
In this case there can be no doubt their mother is the most significant person in both D and S’s lives to date. There can be no doubt she has been their primary carer. As a result of the children having been in B since May of 2000 the only contact that they have had with their father has been via the telephone. As I have found, between the date of the parties’ separation and May of 2000, the father also had very little contact with the children. As a result it cannot be said in my view that he is closely bonded with either of the children.
I accept that the father has had regular telephone contact with both children and that they are aware of his identity and the nature of his relationship to them. I accept the evidence of the mother and Mr C-C that both of them have explained to D and S who the father is and that in a very real sense both children know that Mr M is their “dad”.
It is also apparent to me that Mr and Mrs C Senior are also significant people in the lives of S and D. For reasons that have already been provided I accept that Mrs C in particular was closely involved with the care of both children from the time of their respective births until their departure for B in May of 2000. In addition she spent a protracted period of time with the two girls in B between December 2000 and February 2001. She has plans to visit B again for four weeks in the current year. I accept that both the girls are familiar and comfortable with her and Mr C.
Because of the period of time during which the father has not had physical contact with the two children, it is in my view desirable that there be some period of re-introductory contact. For reasons that have already been given, I accept that the mother is somewhat apprehensive in respect of the father’s ability to care for the two girls for extended periods of time. It is also obvious that neither child has a relationship of any kind with Ms T, the father’s current partner.
Without wishing to appear trite, B is many hundreds of kilometres from Darwin. Given the turbulent nature of the relationship between the parties, it is in my view appropriate that the Court gives credence to the concerns of the mother regarding Mr M’s contact with the two children. In my view, it is not unreasonable that the children should be returned to the care of Mr and Mrs C during the initial contact visit. After all, it will be a significant period of time since the father last saw the two girls. In my view, in spite of the regular telephone contact, they will have little familiarity with their father and will be coming to an environment foreign to them. The presence of Mrs C in their lives will be one familiar aspect.
It is the mother’s wish that the two girls should return to Mrs C during each night of the first two periods of block contact. The father objects to this arrangement as being unduly complicated as it will involve twice-daily handovers over a period of twenty-one days. He argues that such interruptions to his contact will hinder the renewal of his relationship with the two children.
In my view, there is merit to the mother’s proposal. I reach this conclusion because of the period of time during which the children have not seen their father, the tender ages of the children concerned and the natural anxiety of the mother. However in my view the extent of the mother’s proposal for Mr and Mrs C to be involved in the father’s contact is unduly restrictive. In my view it is more appropriate to have a regime which would involve a graduated tapering down of their involvement during the first period of contact. In that way both the children and I hope the mother will be able to gain confidence in the father’s ability to take care of the children. It will also give the children an opportunity to develop a relationship with Ms T.
c. The likely effect of any change in the children’s circumstances
To her great credit the mother is not wishing to deny the children an opportunity to develop a relationship with their father. I accept her evidence that she realises the importance of the paternal relationship in the lives of both S and D as they grow and develop. I also accept her evidence that she has spoken positively to both children regarding their connection with their father.
Although it is apparent to me that there is still some element of antagonism and mistrust between members of the M and C families nevertheless it still seems to me that there is still the possibility of some cooperation between the families when the children are in Darwin. In particular the father seems to have a degree of trust in Mr C.
In those circumstances, I am satisfied that the children will be adequately prepared for the contact that is planned for them during the Christmas school holiday period 2002/2003. The contact will be a significant event in the lives of both children. Given the attitude of the mother to the father and with the involvement of Mr and Mrs C, I am satisfied that both children will be able to cope with this significant change in their circumstances.
d. The practical difficulties associated with contact
In my view this is clearly the most significant aspect of the case. As is clear, neither party is financially well off. The cost of airfares between B and Darwin is significant. No formal evidence was provided to me of this cost. However I was told from the bar table that a return air ticket from B to Darwin is $790.00. The mother wishes the children to be accompanied by a flight attendant both to and from Darwin. She believes that if this occurs she will have more confidence that they will travel safely. This service has to be paid for. Accordingly on my calculations, a twice-yearly visit of the girls to Darwin involving a flight attendant will cost in the vicinity of $4800.00. Given that the annual income of both families is in the vicinity of $35,000.00 this is a significant sum. The Court does not have any magical solutions to the straitened financial circumstances of the parties and their geographical distance from one another. As a result I hold grave concerns that the financial implications of the contact proposed by both parties constitutes a real barrier to it ever taking place.
However, the father has to date been able to save the sum of $600.00. In my view he is to be congratulated in this regard. In my view, this shows a very real commitment to him having contact with the two girls. However, on the other side of the ledger, it is apparent his financial contributions towards the care of his daughters has indeed been token. In those circumstances, it seems to me that it would be unreasonable to require the mother to make anything other than a small contribution towards the cost of the airfares.
No evidence was provided to me regarding any special anxieties either D or S may experience on travelling by aeroplane. Many children of their age enjoy air travel and are frequent travellers. I accept that S and D have travelled only once by aeroplane with their mother. I accept that the mother is apprehensive about the two children travelling. To my mind, she is the person who is best placed to judge whether or not the children need to be accompanied by a flight attendant and would not otherwise be able to manage the four-hour flight from B to Darwin. If she judges that it is necessary for the children to be accompanied by a flight attendant for the first period of contact, which will occur in about 10 months time, in my view it is appropriate that she should bear the cost of this service, given that the father will be paying for the girls to travel.
The orders that I propose making in respect of the costs of contact are that the father should bear the costs of travel for the first period of contact and that the mother should bear the cost of the children being accompanied by a flight attendant if she deems it appropriate on the first and any other occasions. Thereafter it seems to me, given that it was the mother who chose to move from Darwin to B that she should make some nominal contribution towards the cost of contact. Accordingly, in my view, the justice of the situation dictates that the mother should contribute the sum of $150.00 towards each of the children’s airfares to travel from B to Darwin and return. This will amount to the sum of $600.00 per annum.
In reaching this conclusion I have borne in mind that the best interests of the children are my paramount consideration. It is, in my view, in the children’s best interest that they have some relationship with their father that involves face-to-face contact with him. Given the circumstances of each of the parties, the best hope for this to occur is that the contact takes place on two occasions each year. In order for the contact to take place, it seems to me that both parties will have to contribute towards its cost. This will involve a significant sacrifice on both their parts. The mother has the expense of supporting the children on a day-to-day basis. On any view this is a significant burden and one in respect of which she has had no support from the father. Notwithstanding this, in my view, the best interests of the children dictate that she should make the nominal contribution as I have specified.
e. The capacity of each parent to meet the children’s needs
The mother has raised significant issues in regards to the father’s ability to care for the children on a day-to-day basis. I agree that the father is as yet untested in this regard. However this should not form the basis for denying contact between the father and the children. The mother does not seek that it should be regarded as such.
As indicated above, in my view, there should be some tapered introductory period of contact involving Mr and Mrs C. In my view an appropriate regime would be as follows.
a)During the first week of the father’s initial contact with the children they should be returned to Mr and Mrs C each evening;
b)During the second week of this contact they should be returned to Mr and Mrs C every second evening;
c)During the third week of this contact they should be returned to Mr and Mrs C every third evening.
Thereafter I do not believe that it is necessary for them to be involved in any of the father’s other periods of block contact with the children other than they should spend some time with their maternal grandparents during each holiday period in Darwin so as to maintain their relationship with them.
This arrangement may be inconvenient for the father, though I note that he is currently living a comparatively short distance away from Mr and Mrs C’s home. However, the inconvenience of a contact parent is not a significant consideration in this regard. What is important of course is what is in the best interests of the children concerned.
f. The children’s maturity, sex, background and other characteristics (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders)
Both S and D are children of Aboriginal heritage. Both parties acknowledge the Aboriginal heritage of the girls. As has already been indicated, Mr M’s father lives on an outstation called W in the D R region and his mother lives on the T I. In the long term the father is desirous of visiting both these communities with the girls. It is the father’s position that it is important that S and D visit their grandfather’s country and also the T I. The mother opposes this. The basis of her concerns is the level of violence in these communities. She has also indicated an amorphous and, in my view, unclear fear that there is a possibility that the children will be sexually molested by the applicant father’s father.
W is a dry community. The applicant’s mother is a drug and alcohol counsellor on the T I. Neither of the applicant’s parents gave evidence in these proceedings. I accept the father’s evidence that he did not wish to involve his parents in these proceedings because of the potential for them to be embarrassed and hurt by them.
In my view it is important that the girls have the opportunity to maintain their links with the Aboriginal culture of the father’s side of their family. In my view the mother’s concerns are somewhat a amorphous and it would be unduly restrictive of the father and his contact with the girls to prevent him in due course travelling to both T I and W. I accept that he has no plans for any such contact within the next 2 years.
There is nothing in the evidence before me to suggest that the father would not be capable of protecting the girls from any potential harm to them which may arise if they visit either of these communities or indeed in Darwin itself.
In my view it is in the best interests of these two children that they have the opportunity to visit both W and the T I in order that they may maintain their connections with these two communities as a result of their relationship with their father.
g. The need to protect the child from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
As I have indicated I accept that the father has in the past been violent towards the mother. In my view, this violence was as a result of the turbulent nature of the relationship between the parties and was as a result of the immaturity of the father at the time. I accept that the violence perpetrated by the father on the mother largely flowed from difficulties between them during the period their relationship was breaking down. There is no evidence to suggest the father would knowingly subject either child to any physical or psychological harm.
However in my view the mother’s concerns regarding the father’s use of marijuana in the past have some validity. For that reason, I propose making an order preventing the father from using marijuana or exposing the children to the use of marijuana during the periods of contact.
h. The attitude to the children and the responsibility to parenthood
I am satisfied that each of the parties is committed to responsible parenting.
i. Family violence involving a child or member of the child’s family
I have addressed this criteria under heading (g) above.
j. Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Finality is desirable in children’s cases. Due to the considerable logistical difficulty surrounding contact in this case, I have grave concerns that the parties will not be able to accommodate the contact that both parties wish the father to have to the children in Darwin. Notwithstanding that concern, it is in my view desirable that I make final orders regarding contact between the father and the two children concerned in the hope that in future the parties’ financial positions will improve. I am also hopeful that relations between the parties will improve after the initial period of contact. As I have said earlier, I am impressed by the mother’s positive attitude towards the father having contact to the two children. It is of course desirable that both children have as full and as close relationship with their father as is possible in the circumstances. It is also desirable that the two children maintain contact with other members of the father’s family in Darwin and indeed in both the D R area and the T I in order for them to reach their full potential.
For all these reasons I believe that the orders as set out at the commencement of these reasons for judgment are in the best interests of the children concerned.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Brown FM
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