M and M

[2001] FMCAfam 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M [2001] FMCAfam 320

<<Catchwords>>CHILDREN – Residence – contact.

Applicant: C M

Respondent: C M

File No: ZE 78 of 2001

Delivered on: 28 September 2001

Delivered at: Dandenong

Hearing Date: 28 September 2001

Judgment of: Connolly FM

REPRESENTATION

Counsel for the Applicant: Mr Wood

Solicitors for the Applicant:

Maurice Blackburn & Cashman

Level 10
456 Lonsdale Street
Melbourne  VIC  3000

Counsel for the Respondent:

Respondent in person

Mr C M
1339 Mt Dandenong Road
Mt Dandenong  VIC  3767

ORDERS

1. The child of the marriage, M W M M, born 27 January 1998 reside with the wife and she be responsible for her day-to-day care, welfare and development;

2. That both the husband and the wife retain the long-term care, welfare and development of the said child;

3. That the husband have contact to the said child as follows:

   (a)Each alternate weekend from 5.30 pm Friday to 5.30 pm Sunday;

   (b)One half of each of the term holidays at times to be agreed and in default of agreement the first half;

   (c)From 3.30 pm on 24 December 2002 to 3.30 pm 25 December 2002 and in each alternate year thereafter;

   (d)From 3.50 pm on 25 December 2001 to 3.30 pm on 26 December 2001 and each alternate year thereafter;

   (e)From 3.30 pm on 26 December 2001 until 5.30 pm on 1 January 2002;

   (f)From 5.30 pm on 15 January 2002 to 5,30 pm on 24 January 2002;

   (g)Thereafter for one half of the long summer holiday each year such half to be agreed upon;

   (h)From 5.30 pm on the day before Father's Day until 5.30 pm on Father's Day, and should Mother's Day  fall on a contact weekend that the child will be returned at 5.30 pm the night proceeding Mother's Day;

   (i)For 4 hours on the child's birthday at times to be agreed;

   (j)By telephone between 5 pm and 6 pm on Wednesday, and at other times to be agreed;

   (k)In (a) that is commencing Friday, 5 October;

   (l)The wife's legal costs from 24 April to date be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

ZE 78 of 2001

C M

Applicant

And

C M

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings are competing residence applications.  The wife's application is in effect that the child, M W M M, who was born on

   
   

   27 May 1998, reside with her and that the husband have contact each alternate weekend and half of each school holidays period, and there are some provisions for Christmas and Day, other special days and telephone contact once a week. 

2. The husband in his response seeks a week and week about shared residence arrangement, with times specified for Christmas, special days and also a number of specific issues orders.

Affidavits relied upon

1. The wife's application is supported by the following affidavits:

   a)her form 16 affidavit sworn on 8 January and filed on the same date;

   b)her form 16 affidavit sworn on 5 February and filed on
   6 February;

   c)her form 16 affidavit sworn on 26 March and filed on 27 March; and

   d)

   her form 16 affidavit sworn on 21 September and filed on

   
   

   24 September. 

2. In addition there is:

   a)an affidavit of L M sworn on 5 February and filed on 6 February;

   b)an affidavit of M M sworn on 3 February and filed on 6 February;

   c)an affidavit of M M sworn on 24 March and filed on 27 March; and

   d)an affidavit of D M sworn on 24 March and filed on 27 March.

3. The Husband relied on the following affidavits:

   a)

   his form 16 affidavit sworn on 12 January 2001 filed on

   
   

   15 January;

   b)

   his form 16 affidavit sworn on 8 February and filed on

   
   

   9 February;

   c)his form 16 affidavit sworn on 19 April and filed on 24 April; and

   d)his form 16 affidavit sworn on 21 September and filed on the same date. 

4. There are also two affidavits of his mother:

   a)

   the first one was sworn on 12 January 2001 and filed on

   
   15 January; and

   b)the second one was sworn on 18 April and filed on
   19 April.

The history

1. The background to this matter is as follows.  The husband is 37 years of age.  He was born on 3 August 1964.  He is currently a teacher by occupation and lives with his mother at 1339 M D T Road, M D.  The husband's evidence was that for the year ending 30 June 2001 his income was approximately $28,000 per annum.  He has recently arranged for his workload to be reduced from full-time to 0.8.

2. The wife is 22 years of age.  She was born on 12 November 1978.  She is occupied in home duties.  She resides at 430 W Road, C, with her sister, M M, and brother-in-law, D M.  The property is a property owned by them, and she has resided there since January of this year.  She is reliant on the supporting parent's pension by way of income, and until recently had received no child support.  The sum of $21.67 per month was the assessed ment amount up until very recently.  ; tThis has now been increased to $426.92 per month.  Despite the minimal initial assessment, the husband refused to pay that amount and the wife was required to seek arrears of 5 months.  As at 7 October the husband will owe a total of $3453.47.

3. The parties first cohabited in December of 1996.  They married on

   
   

   25 April 1998 and separated on 25 December 2000.  There is one child of the marriage, M W M M, born on 27 January 1998, currently aged 3 years and about 8 months.  During the marriage the parties lived at the paternal grandmother's residence until about November of 1999, when they moved into rented accommodation.  In mid-1999 the parties experienced some financial difficulties, and in January 2000 the wife commenced casual work as a life model, and then in August 2000 she also started some part-time waitressing. 

4. The husband had initially been employed as a sub-contractor building and installing staircasessub-contracting as a staircase builder and installer.  However, in August of 2000, he gave up that occupation – or it was terminated, it is not absolutely clear which.  He then commenced work as a teacher of woodwork at the W Secondary College.  During all of this time the wife was the primary care-giver of the child. 

5. By December 2000, the wife had changed her waitressing work to night shift to enable her to spend more time with M.  At about the same time the husband's employment as a teacher was terminated, and the wife had a pregnancy termination.  The parties ultimately separated on Christmas Day 2000.

6. There wasis then an incident in early January 2001 where the husband over- held the child for a period of some 10 days.  In a note that he wrote at the time, he referred to it as equal access rights.  On 16 January the first lot of orders were made in this matter by the Chief Federal Magistrate Bryant.  There were further orders made then on 23 January by Federal Magistrate Roberts, and on 9 February orders were made by Federal Magistrate Hartnett including an order that the matter be set down for a final hearing on 24 April 2001.

7. On 24 April, after a lengthy day of negotiations, the parties settled their dispute and signed minutes of consent orders.  The wife was represented at that time by Mr Gardiner of Ccounsel, and the husband represented himself.  It was too late for those orders to be made that day.  The following day was a holiday, and the matter came back before the Court on the 26^th April, when the husband indicated he was no longer prepared to consent to orders in those terms.  He indicated that he had been forced to sign the consent minutes by his wife's Counselbarrister.

8. In the intervening time, the husband has voiced a number of complaints and they wereare the main substance of the proceedings before me.  He was concerned that the wife's care of the child with respect to the child's medical and dental treatment was lacking.  He had complained to the Department of Human Services about an incident involving M's cousin, K.  His most vehement complaint, however, seemed to relate to phone calls that he was entitled to have with his daughter. 

9. The wife during this time had to pursue the husband for child support, as I have already indicated, without a great deal of success.  In May, there was also a hearing of a claim in relation to property damage to the rental property in which the parties resided prior to separation.  The husband did not attend that hearing and wrote a letter attributing blame to the wife for any damage, and indicating that she had received the bond.  This was in circumstances where he had last occupied the property and whereby the wife's father had paid the bond.

10. The contact that has occurred since the orders of 9 February has been that the husband has had the child for the first two out of every three weekends from midday Friday till 5.30pm on Sunday. 

    
    

    Change-overs have occurred at the McDonald's Family Restaurant in G.  The mother says that the contact has caused the child some distress, and that she returns tired and irritable and is initially unable to cope with interaction with others in the household, although she eventually settles down.

The law

1. The relevant law that I am required to take into account is that residence, contact and specific issues orders are parenting orders.  They arise in proceedings conducted under Part VII of the Family Law Act.  Section 60B sets out the objects of Part VII and the principles which underlineie those objects.  They are subject to section 65E in that, when determining anthe outcome, of the best interests of the child is the paramount consideration; that is the overriding principle.

   Section 60B(2) paragraph (a) sets out that: 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.

   Paragraph (b): Children have a right of contact on a regular basis with both 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.

   and (d): Parents should agree about the future parenting of their children.

2. In deciding parenting arrangements and what arrangements will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2).  Its subsections comprise a list of matters that must be considered to the extent that each is relevant to a particular case. 

3. Paragraph l permits the Court to take into account any other fact or circumstances which the Court thinks are relevant.  This ensures that the infinite variety of individual children's circumstances can be addressed. 

4. The matters that are set out in paragraph 68F(2) are:

   a)the child's wishes;

   b)the nature of the child's relationships;

   c)the likely effect of any changes in the child's circumstances;

   d)the practical difficulty and expense associated with contact;

   e)the capacity of the parents to meet the child's needs;

   f)the child's maturity, sex, background and other characteristics;

   g)the need to protect the child from physical or psychological harm caused by abuse, ill-treatment, violence or other behaviour;

   h)the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents;

   i)any family violence involving the child or any member of the child's family;

   j)any family violence order;

   k)whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   l)any other fact or circumstance the Court considers relevant.

Conclusions and findings

1. The mother's case has been that she has always been the primary care-giver of the child both pre- and post-separation, and that the child was closely bonded with her, and the parties' ability to co-operate and communicate had precluded a sharing arrangement.  Her counsel,

   
   

   Mr Wood, opened the case on the basis that the husband would in any event be an inappropriate person to have a shared residence order in that he was motivated by his own self-interest and did not have the interests of the child at heart, and lacked insight into the child's needs.  The husband opened the case on the basis that, to share equally in the child's life, he needed to have a shared residence order and the child needed to spend equal amounts of time with him. 

2. So far as the issue of who was the primary care-giver of the child is concerned, despite the husband's initial reluctance to concede that the wife had been the primary care-giver during the time the parties were together, he eventually did so.  The evidence is that, for the first 2 years of the child's life, the mother was at home on a full-time basis.  This was at the time when the husband claims he was"working long and hard". 

3. Even after January 2000, when the wife took up casual work as a life model, this only involvedher in, according to the husband's own evidence, between one and three jobs a week and for her, at most, 3 or 4 hours at a time.  Between August 2000 and December 2000, she was also involved in some part-time waitressing.  Since separation she has cared for M on a full-time basis.  The husband on the other hand has been substantially involved in full-time employment, although he has recently reduced this to .8 time.

4. I am satisfied that the mother has been the person primarily responsible for the care of the child, and she has done a very good job in doing that.  The husband conceded this again, albeit reluctantly.  He said she was, "a very devoted mother during the marriage and, although he initially said she had lost her enthusiasm a few months ago", he was not able to substantiate that, and indeed he agreed with Mr Wood's suggestion that his friend Mr M's description of her was accurate in that, "she was very committed and attentive and no sacrifice was too great to satisfy M's needs, and no one could persuade her otherwise".  They are fairly glowing remarks in relation to her mothering capacities.

5. The complaints of the husband with respect to M's medical and dental needs not only were uninformed but ultimately reflected badly on the husband.  I do not propose to rehash all of the evidence with respect to those matters, but I am absolutely satisfied that the history of the wife's attentiveness to the child's needs is abundantly clear.  And despite the husband's initial assertion to Mr Wood that she would be uncaring about the child's medical and dental treatment, he again finally conceded that this was not so.

6. Indeed the wife acted in the most appropriate way possible when she received the information from the husband's doctor; she took the child to her own doctor again and abided by the doctor's advice in circumstances where the doctor was very much more familiar with M.  The husband also agreed to withdraw his complaints about the child's dental treatment, although again reluctantly.  The husband's complaint about M's use of the phone, I am satisfied is unfounded.  He says that the wife monitored the phone calls that he makes to M and cuts them short.

7. I was impressed with the wife's evidence on this aspect as well as the evidence of her sister, M, and brother-in-law, D.  They explained that the wife had used her best endeavours to teach M to use the phone.  M, I should emphasise, at that time was barely 3 years of age, and had no familiarity with telephone calls.  The husband seemed to have difficulty in understanding that a child of this age had a limited concentration span, and was not able to carry out lengthy or complex phone calls.

8. I was satisfied that, far from hindering the child's use of the phone, the mother did all that she could to encourage her.  What I am critical of, is the husband's attitude in ringing back three or four times on a regular basis after a conversation to insist that the child say goodbye.  It is clear that behaviour such asly behaviour that was likely to incite confrontation. 

9. The other concern raised by the husband involved an allegation that  Ms cousin, K, tickled her bottom.  Again, the husband's concerns were exaggerated, and the reporting of the matter to the Department was bordering on malicious.  Finally, the husband also conceded that there was no real basis for his concern either, although he appeared to have little remorse for the impact and the upset that he may have caused K's mother. 

10. Indeed the husband's conduct and treatment of the wife's friends and associates has been utterly inappropriate.  The threat that he made to D M was disgraceful.  It was an attempt to bully someone into giving him his own way.  There was no attempt by the husband to deny the allegation that he would falsely report Mr M to CASA.  He was also unconcerned about the effect such behaviour might have on the relationship with his wife.

11. There was also evidence given by the wife that he told her that her father had threatened to assault him.  Again this was a false accusation.  All of these matters make it abundantly clear that the husband does not have the ability to co-operate or communicate on anywhere near the level required to consider a shared residence, and indeed they show him as a person who lacks a good deal of responsibility.  I must however also take into account the husband's responsibility towards his duties as a parent, and in that regard I find his attitude to the issue of child support irresponsible and self-centred in the extreme.

12. The fact that no payment at all was made for 5 months appeared to produce no element of regret as far as the husband was concerned.  When questioned about how he may have been financially irresponsible in the past, the only two examples that he gave were the reference to a trip to the snow for M and moneys that he had spent on his own social life.  The picture of the husband as self-centred was not diminished by the evidence of his step-mother, L M, who gave evidence of his laziness and unwillingness to work, and of his abusive attitude towards his wife at the time of the parties' separation.

13. Accordingly, I have no hesitation in making orders that the child reside with the wife and that M have contact with her father in accordance with the proposals indicated by the wife.  I decline to make the orders that the husband seeks for specific issues in that they are not supported by the evidence.

I certify that the preceding thirty-threewenty-seven (3327) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate:

Date:    28 September 2001