Ma and MN - [2003] FMCAfam 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MA & MN

[2003] FMCAfam 196

FAMILY LAW – Children – contact – best interests of children – friction between parties at contact changeover – telephone contact.

Family Law Act 1975, ss.60B, 65E, 68F(2)

Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
Joannou (1985) FLC 91-642

R and R: Children’s Wishes (2000) 25 Fam LR 712; FLC 93-000

R and R [Children’s Wishes] [2002] FamCA 383
B and B: Family Law Reform Act 1995 (1997) FLC 92-755; 21 Fam LR 676

Applicant:

A M

Respondent:

N M

File No:

CAM 2688 of 2002

Delivered on:

16 May 2003

Delivered at:

Canberra

Hearing dates:

15 & 16 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Rees

Solicitors for the Applicant:

Nicholl & Co

Counsel for the Respondent:

Mr Miller

Solicitors for the Respondent:

Farrar, Gesini & Dunn

ORDERS

The children A M born 9 October 1995 and T M born 9 November 1997 are to reside with the respondent mother who is to be responsible for the day to day care, welfare and development of the said children when they are in her care.
The applicant father is to be responsible for the day to day care, welfare and development of the children when they are in his care.
The mother and father are to be jointly responsible for the long term care, welfare and development of the children.
The father is to have contact with the children:
(a)each alternate weekend from 6.00pm on Friday to 6.00pm on Sunday extending to 6.00pm on Monday if the Monday is a public holiday during term time commencing on Friday 23 May 2003;
(b)on the Wednesday afternoon following a contact weekend after school, the children to be collected from school by the father or the paternal grandparents and to be returned to the mother's residence at 7.00pm commencing on Wednesday 21 May 2003;
(c)for the first half of each school holiday period in 2003 and each alternate year thereafter;
(d)for the second half of each school holiday period in 2004 and each alternate year thereafter;
(e)for the purpose of Christmas school holiday contact if the party who has the children in his or her care for the first half of the Christmas holidays is in Canberra for Christmas Day then they will notify the other parent and contact will take place with the parent with whom the children are not staying for a period of not less than three hours on Christmas Day at such time to be agreed and in default of agreement from 12.00 noon until 3.00pm;
(f)from 6.00pm on the Saturday before Father's Day to 6.00pm on Father's Day of each year;
(g)for not less than two hours in the afternoon on each of the children's birthdays and the father's birthday, if such day falls on a school day and for not less than four hours if that day falls on a day when the children are not required to attend school;
(h)at such other times as agreed between the parties.
School holiday contact will be calculated from the last day of school until and including the day immediately before school resumes and the first half is to conclude at 6.00pm on the middle Saturday of each school holiday period.
The father is to have contact by telephone with the said children between the hours of 6.00pm and 7.00pm each Tuesday, Thursday and Saturday and for the purpose of telephone contact the mother is to arrange for the children to telephone the father.
The parties are to do all reasonable things to ensure that their landline telephones remain in good working order.
The father is restrained from telephoning the mother's residence on any school day except in case of an emergency.
The father is not entitled to exercise contact with the children on Mother's Day or on the mother's birthday if that day falls on a Sunday and if either of those days fall on a weekend when the father would normally be entitled to exercise contact then the contact for that weekend will conclude at 6.00pm on the Saturday beforehand.
For the purpose of exercising contact the father or one or other of the paternal grandparents are to collect the children from the mother's residence or such other place as the parties may agree at the commencement of each contact period and return the children to the mother's residence at the conclusion of each contact period.
Weekend contact pursuant to order 2(a) and Wednesday contact pursuant to order 2(b) is not to be exercised during any school holiday period but will resume on the second Wednesday and the first weekend after the school term commences.
Neither party is to use any offensive or insulting or derogatory language to the other party in the presence or hearing of the children or permit any third person to do so.
The mother is to do all things necessary to authorise the principal of the children's school to forward to the father on a regular basis at his expense copies of all school reports, newsletters, bulletins, information about the school photographs and other information usually forwarded to parents of children attending that school.
The parties are to inform each other of any medical emergency involving either of the children necessitating treatment at a hospital or any medical specialist appointment as soon as reasonably possible.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 2688 of 2002

A M

Applicant

And

N M

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of a girl called A M, who is 7 years old, and a boy called T M, who is 5 years old, for orders about his contact with them. There is also an application by the father for property orders and in her response, an application by the mother for spousal maintenance. These financial orders will be made as soon as possible, but I am satisfied that the parties need to have the question of parenting orders resolved as soon as possible as there has been a significant degree of conflict between them. It will be in the best interests of the children if the contact issues are resolved at an early date. An early resolution of the parenting matters may assist the parents also. Accordingly, I propose to deliver a decision on this question today, and the decision in respect of the financial matters in the near future.
Both parties have tendered to the Court a minute of the orders that they now seek. There is no issue between them about the question of residence. The children are to reside with their mother as they have done since the parties separated. I propose to make that order today. There is a degree of difference between the parties about the father's contact with the children. The father seeks orders that he have contact in this way:
a)Every alternate weekend from after school on Thursday until Sunday evening, extending to a Monday if that day is a public holiday with the children being collected from school by the father or the paternal grandparents;
b)On Wednesday afternoon following a contact weekend from after school to 8.00pm that night;
c)For half of the school holidays;
d)On Father's Day and on the father's birthday;
e)That the mother have the children with her on Mother's Day and on her birthday; and
f)Alternating the children's birthdays with each parent.
Rather surprisingly the father does not seek any particular order about contact with the children by telephone. I note that this is surprising as the father has given evidence about his wish to speak to the children daily, and the frustration he has experienced in trying to do so. The mother certainly seeks orders about telephone contact. She asks the Court for an order that the children telephone their father every second day. Telephone contact is an issue with her too.
The other contact orders sought by the mother can be summarised in this way:
a)The children should spend alternate weekends with the father from 6.00pm on the Friday until 6.00pm on the Sunday;
b)The children should spend Father's Day with their father from 9.00am to 5.00pm and Mother's Day with their mother during the same hours;
c)The children should spend part of their birthdays with each parent; the length of time that the parent who does not have them in their care on that day varying according to whether it is a school day or not;
d)The father should have contact for half the school holidays with special arrangements for Christmas;
e)Weekend contact should be suspended during school holidays; and
f)Contact changeover to be at the mother's home.
The father is 34 years old and the mother is aged 33. He is an accountant by profession and she is a hairdresser. He is from a family of Italian descent. The parties met in 1988 whilst they were still in their teens and were married on 17 October 1992. They moved to a home in N Street, S in the ACT, a property owned by the father's parents.
There are two children of the marriage. A, their daughter, was born on 9 October 1995. Their son, T, was born on 9 November 1997. The parties separated on 15 April 2002 when the father left the matrimonial home. There were some differences of opinion between the parties about the father's contact with the children. The contact commenced on a daytime only basis on 21 April. Overnight contact commenced on 18 May 2002. The father currently resides with his parents. Both children are now at school.
The issues between the parties concern the amount of contact the father should have; the amount of telephone contact there should be; and the issue of tension between the parents at contact changeovers. There is still a degree of animosity between the parties, although they have been separated for 13 months now. The father seeks contact on alternate weekends commencing on Thursday after the children have finished school. The mother believes that this would be disruptive to the children. The mother also believes that the father's proposal for contact on alternate Wednesday evenings from after school until 8.00pm would also be disruptive to the children during the school week. Indeed, she comments that the 8.00pm that is proposed is after the children's bedtime during the school week. The father disagrees, expressing the view that it is a long time between alternate weekends for the children as well as himself and his parents. The father tries to speak to the children daily on the telephone, but the mother opposes this. She says that the father will often call several times a day, which is disruptive both to the children's lives and her own.
The father gave evidence by affidavit and was cross-examined. He admitted two incidents of violence during arguments with the mother, and a further incident where his behaviour, quite recently, could be described as intimidating. The first incidence of violence was in 1995 when he said that the mother struck him during a heated argument while she was in her early pregnancy with A. He said that he instinctively pushed her after she slapped him, and she fell on to the bed. She says, but he cannot recall, that she lay in a foetal position.
The next incident took place in mid 2000 when the parties and the children were visiting the mother's family. They had not yet got into the house. There was an argument where the father says the mother told him that she would deny him contact with the two children, and he said that he seized hold of her jaw or face, and made her look at him whilst he spoke to her. He denies her allegation that he grabbed her by the throat. He said that he apologised to her shortly afterwards. His intentions were to speak directly to her to indicate his opposition to her views. The third incident related to an incident on 19 October after a conciliation conference when the father had agreed with the mother that he would collect some items of personal property at a contact weekend, and a disagreement arose between them.
The father admitted he tried to speak to the children every day, and said that he rang and left messages on the mother's answering machine so that the children would ring him back. He said that he has only received one call in 12 months. He did not believe that daily phone calls would be disruptive, but conceded that calling in the morning when the children were getting ready for school might be disruptive. He said that he would only call in the morning out of desperation if he had been unable to speak to the children the day before.
The father sought extended weekend contact so that, not only could he spend time with the children, but his parents could as well. He plans to pick the children up after school on Thursdays, or arrange for his parents to do so. He has already spoken to his employer about coming in later and leaving work earlier on alternate Fridays so that he could deliver the children to school in the morning, and pick them up in the afternoon. The father's parents, R and F M, both gave evidence on affidavit and were subjected to cross-examination.
Their evidence went to their willingness to assist their son, their commitment to the children and their practice of teaching the children about Italian culture, and teaching them to speak Italian. Mr M S said that his son wanted to see "lots more" of the children and so did he. Mrs M indicated that whilst the son may have slept in on Sunday mornings, he was the one that did the bulk of the work of caring for the children whilst they were on contact with him.
The mother gave evidence by affidavit and was cross-examined. She deposed to being the primary carer of the children since they were babies. She described how her mother and her mother-in-law assisted her, especially after T was born. The mother describes incidents where she said the father raised his voice to the children on various occasions. She deposed to her opposition to the father smacking the children. The mother confirmed in her affidavit that she had not at first been prepared for the children to go on contact with their father overnight, but this commenced on 18 May 2002.
The mother deposed to the father ringing and leaving several messages on the telephone. She described her exasperation and her frustration with this practice. Indeed she gave evidence today that the father had telephoned her as recently as last night. The mother described incidents where her landline telephone was not functioning correctly, but the father in her view at least, blamed her for the fact that messages were not getting through.
The mother also referred to incidents where she said the father was violent. Each time the violence arose out of a heated argument. She referred to the incident on 19 October 2002 where the father came to her home to collect some items of personal property which had been the subject of an agreement reached at a conciliation conference. Some items that he wanted were not there, and she said that he became angry and started banging on the window. He entered the house and her father spoke to him. Later her brother M arrived, and spoke to the father.
The mother deposed to strained relationships between the parents-in-law and herself. She described one incident in January this year where she was out with the children and she saw the father's mother and aunt. She took the children up to see them but both women, she said, ignored her. The mother's father, A P, and her brother M P, both gave evidence by affidavit. Neither witness was required for cross-examination. Each one, in his affidavit, referred to the incident between the parties on 19 October 2002. They described the father as having been angry on that day.
When a Court is exercising jurisdiction under the Family Law Act, and it is considering making contact orders concerning a child, section 65E of the Act must be followed. This section lays down that the Court —
Must regard the best interest of the child as the paramount consideration
Section 60B(2) sets out a number of principles which a Court must take into consideration, except when the application of any of them is, or would be contrary to the child's best interests. Sub-section 60B(2)(b) refers to children's right of contact on a regular basis with both of their parents and other people significant to their care, welfare and development. Section 68F(2) sets out a number of matters that a Court must consider when determining what is in a child's best interests. There are twelve of them in all, from sub-s.68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered as I have done in this matter.
Looking first of all at any wishes expressed by the children, and any factors such as their maturity and level of understanding, I note that the children are still young. A is 7 years of age, and T is 5 years of age. There is no family report, nor were the children separately represented. Whilst their wishes would not be irrelevant, although they are still quite young and the decision of the Full Court of the Family Court in Joannou (1985) FLC 91-642 as authority for this proposition, there is no independent evidence as to what their wishes are. There is evidence from the mother in her affidavit material of some opposition by A either going to see her father on occasion, or spending too long a time with him.
It is clear that the mother supports the idea of the father having contact with the children on a regular basis, and there is no other evidence that the children's wishes are otherwise than that there should be contact. There is evidence that at times the children have declined to telephone the father, or speak to him on the telephone. The mother has indicated that she has not pressed the issue.
Sub-section 68F(2)(b) refers to the nature of the relationship of the child with each of the child's parents and with other persons. Clearly, the people who are relevant here are each parent, and the maternal and paternal grandparents. The maternal grandparents have played a relatively small role in these proceedings, although there is an affidavit from Mr P, and there is evidence that the mother's mother minds the children on a couple of occasions each week. I have had the opportunity of hearing from the paternal grandparents. The evidence suggests that the children have a good relationship with their mother, although there seems to be some evidence that the child, A, has a relationship with her mother which is somewhat clingy and insecure. There is evidence from the mother of the child going on a sleep-over with a friend, but becoming distressed when going to the friend's place not having seen her mother beforehand, and having to be brought back so that she could see the mother, and then happily go off to the friend's place.
There is some evidence that the relationship with the children and the father has at times been stormy, and the mother gives examples of the father becoming angry with the children. The children do have an ongoing relationship with their grandparents. There is some evidence that the child, A, has expressed distress at actions by the paternal grandmother. The occasion when the mother was out with the children and said that she met the grandmother and the aunt was described as an incident where the child A became distressed at the grandmother's actions.
Sub-section 68F(2)(c) requires the Court to consider the likely effect of any changes in the children's circumstances. The changes that are proposed would be minor. At most they would involve an increase in the amount of contact with their father and paternal grandparents. I am not satisfied there is any evidence to suggest that the children would be adversely affected by this.
Sub-section 68F(2)(d) asks the Court to look at the practical difficulty and expense of the children having contact. The parties all live in C, and all live in a relatively close area. I am not satisfied that there is any practical difficulty and expense. I look at the capacity of each parent to provide for the needs of the children, which include emotional and intellectual needs. The evidence contains no criticism of the mother's capacity in this regard. The father is keen to spend time with the children, and to speak to them on the phone. At times some of the father's evidence caused me to question whether he was conscious of the fact that some of his wishes to be with the children, or speak to them on the phone may be for his well being, rather than necessarily for the children's well being.

I look also at the maturity, sex and background of the children. The children are aged seven and five. Their father comes from an Italian background. They have traditional Italian paternal grandparents.

It would appear to me to be for the children's benefit to learn about their Italian culture and language, although children can react against this when they reach their teens, and the well known novel and film, "Looking for Alibrandi" is an indication of that. It is to be recalled, however that the central character in that story came to appreciate the strength and the richness of her parents' and her grandparents' background.
I look at the need to protect the children from physical or psychological harm. The heated arguments between the parents in the presence of the children, and on one occasion at least, such an argument resulted in the father seizing hold of the mother physically cannot, and will never be in the best interests of the children. Arguments between the parties where one party threatens to deny to the other party contact with the children can only cause the children fear and uncertainty. For whatever reason, heated arguments between the parents in the children's presence must stop if the children are going to feel secure. It would set a poor example to the children in their later life if they accept that it is the norm for men to use any form of violence on women in a relationship. This matter was explored by Chisholm J in the Family Court in JG v BG (1994) 18 Fam LR 255; FLC 92-515.
I look at the attitudes to the children and the responsibilities of parenthood displayed by the parents. The mother gave evidence in her affidavit of being opposed to corporal punishment, and critical of the father's actions which she said related to shouting at the children. The mother does not want to have the children cared by other people after school, and her evidence was that she wishes to be there for them. The mother indicated in her evidence today when cross-examined about whether she was taking action to make the children, or persuade the children to telephone their father, that she chooses her battles to fight, and that was not a battle that she intended to involve herself in.
I look again at the question of family violence. There is no apprehended violence order, or domestic violence order in Court. There is some history of arguments which have developed into violence, and there is clearly a need to reduce contact between the parents at contact changeover, although it is difficult to see how that can be done unless other people are involved. The mother is still seeking that all contact changeovers be at her home. The proposals that contact changeovers should take place with the father or the grandparents collecting the children from school of an afternoon were, in fact, resisted by the mother.
So whilst there is tension at contact changeover, the "out" that picking up the children from school might offer is not one that the mother seems keen to avail herself of. There is, of course, the explanation that the child, A, attends dancing on a Friday afternoon, but I would question whether that is the arrangement that needs to continue forever. The mother also referred to the child A wanting to see her before she goes away, even for overnight or for a couple of days, and I would query also whether that is an attitude that should be encouraged, or whether this child is going to need to learn, at the age of 7, that she should be able to spend some time away from her mother without being reassured of her mother's presence.
I look at the order least likely to lead to the institution of further proceedings. Of course, contact orders are never final because circumstances can change, but workable contact that allows children to pass freely and happily from one parent to another will reduce the opportunity for friction between the parents.
Finally, I am of the view that there are no other relevant facts or circumstances. There is a significant degree of animosity between the parties which has the potential to have a negative impact on the children. The mother has offered contact to commence at 6.00pm on the Friday, rather than 9.00am on the Saturday which is the current situation. The father has not availed himself of that, and the cross-examination of the mother was directed to the way in which that offer was actually made. Apparently there have been no interim contact proceedings, and one would have thought that some of these matters could perhaps have been dealt with at an earlier date.
To my mind there seems to be no reason why contact should not start on a Friday to allow the father two nights rather than one. The father has indicated that he has spoken to his employer about adjusting his working hours, and the father is indicating, certainly in the proceedings before me, his wish to be more involved with the children's lives.
Contact currently takes place at the home of the paternal grandparents, which is where the father lives, and indeed it is hard to see why that should not be so. The paternal grandparents may share some of their son's hostility towards the mother, but they appear to love their grandchildren. It would appear to me that the paternal grandparents need also to accept the fact that for contact to work in the best interests of the children, the position of the children's mother should be respected, and that what they should present to children is a position where the children see that they should be happy with each parent, and that they should be aware that each parent and all of their grandparents love them and care for them.
There is certainly much to be said for the fact that children can benefit from spending time with extended family. I have had recourse earlier this week to refer to the decision of Bright and Bright v Bright v Mackley (1995) FLC 92-570, a single Judge decision of the Family Court, where Treyvaud J (now deceased) said:
It is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family; that he or she has grandparents on both sides; uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
The history of these children indicates that they have grown up as part of an extended family, and there has been evidence before me of arrangements between these parents and their own parents relating to the welfare of other members of the family, and the fact that the extended families remain together as a group. I am of the view that that is a benefit to these children. This is something that should be fostered notwithstanding the fact that their parents have separated.
The question of contact on a Wednesday afternoon has been argued before me, and Mr Miller for the mother has suggested that its value is questionable. It would be for a relatively short period of time. Indeed Ms Rees for the father conceded that the proposal that the contact finish at 8.00pm was inappropriate and did not take into account the children's bedtime during the week. The suggestion was made that it would be disruptive for the young children in the middle of the school week, particularly as the child T is in his first year at school.

I certainly gained the impression from the father's evidence that this is something that his parents are very keen to see, as well as the father being involved in it.
I think some of the criticisms relating to the Wednesday afternoon contact once a fortnight will also be directed at the children going to their father on Thursday afternoons. Friday is a school day. It would involve, as it is suggested, the paternal grandparents probably picking the children up from school, and the father making arrangements with his employer to take the children to school so he would go to work late, and get away early and pick them up from school. The mother raises objections to this, first of all, because of A's dancing and her difficulty about going away without seeing her mother. But there have also been criticisms raised by the mother about being disruptive to the children's schooling. Mr Miller expanded on that in his submission pointing out difficulty with relating to homework being in the wrong place, notes from school that should go to one parent ending up in the other house. School clothing being left at one place when it is needed the following day which would tend to cause confusion and disruption, and perhaps unhappiness for the children.
I have given this matter a considerable degree of thought right throughout the process of the case, and I have listened intently to the evidence. I am not persuaded that contact commencing on the Thursday evening will be to the benefit of the children. Friday is a school day. The father will go to work albeit that he has made arrangements to have a shorter working day. The children would go from one home on the Thursday morning to the other home on the Thursday night. They would then go to school from the other home on the Friday, and back to that home. There is concern about school clothing being misplaced and it would involve, of course, extra trouble for the mother as far as packing bags is concerned. Whilst that is not a major feature as far as the best interests of the children are concerned, it does create the possibility for items to be misplaced and not where they should be, resulting in unhappiness and confusion for the children.
Does the same criticism apply to the Wednesday afternoon? The father says that the gap between alternate weekends is a long time, even allowing for the fact that it should certainly start on the Friday night rather than the Saturday morning. I certainly accept that the children should not stay out past their bedtime, but if the arrangement was they went from school to their grandparents’ home, which is nearby, and that there was an early meal, and then they were delivered home. If they were home by 7 o'clock, it would not seem to me to be unduly disruptive. The administrative and logistic problems, perhaps, of clothing being left in the wrong place would be minimal. Notes in school bags would still end up in the right home, and the children would go off to school the following morning from the home where they normally go off to school.
The disruption to homework would be minimal, to my mind. Children in their first year at school just do not normally have homework, and even once they get into primary school there is not a great deal of homework. It would most certainly be that the father, who would make himself available on those Wednesday nights, may wish to make himself available to assist. So I am of a view that for a short period on the alternate Wednesday afternoon, contact could well be beneficial.
As I said, I gave thought to contact taking place from after school on the Friday, rather than 6.00pm from the mother's home. The advantages are the avoidance of a meeting between the father and the mother, and the resultant tension, but the difficulties raised by the mother in her evidence leads to me conclude, perhaps reluctantly, that it would just be too hard. That there is the potential for unhappiness, so that what should be a smooth changeover for the children would not occur. Perhaps it would be the case, then, that A should go home from the dancing on the Friday afternoon, change into her other clothes, and then she and her brother could be ready to go to their fathers on the Friday, and have a pleasant Friday evening with them.
The mother makes no mention of public holidays, which the father seeks. The mother, in answer to a question from the bench in cross-examination, did not indicate any opposition to a public holiday Monday being added to a weekend contact and, in fact, I note such a public holiday is to occur in only a few weeks time. It does seem to me to be a way for the children to spend more time with the father and the grandparents. If contact weekends include public holiday Mondays there would not be any disruption to school. It allows a longer period of time, and may be a more relaxed arrangement
The arrangements for Father's Day, I again referred to during the course of the hearing, that the mother proposed that the contact on Father's Day should be from 9.00am to 5.00pm. I am of the view that is probably a slip of the typewriter or the printer, and that if contact on an ordinary Sunday finishes at 6.00pm, then contact on Father's Day should finish at 6.00pm.
Telephone contact has certainly been a bone of contention between the parties. The father seeks daily access by telephone. The mother opposes this, suggesting that it could be intrusive, especially if it is in the mornings before school. At the same time the father becomes frustrated at not being able to speak the children regularly, hence the repeated phone calls. If there is still a fault in the mother's telephone, which seemed to be an issue at one stage, then it should be fixed. The parties should make efforts to maintain telephones in good repair. If the father knew that on certain days at certain times, he could expect the children to call him, and if he saw that those calls took place on a regular basis, he would then be less anxious and less inclined to make calls at other times which the mother clearly finds difficult and intrusive.
The mother offers every second day. I am of the belief that there should not be a necessity for telephone contact every day, especially if there is to be a Wednesday in one week where there is to be actual face-to-face contact. I am of the view that there should be telephone contact on Tuesdays, Thursdays and Saturdays. It should be between the hours of 6.00pm and 7.00pm, and that the Court should give the mother the ability to arrange for the children to telephone the father. She has offered to do that. She says that is a solution that should work, and it certainly would be up to her to show that it can work. What comes with that is I believe there should be restriction on the father telephoning on other occasions. I am not of a belief that the father should telephone in the morning, certainly on school days, and I think of an avoidance of some other days such as Mother's Day would be of some advantage.
Arrangements about birthdays are always important to remember, though the father's proposal for alternating birthdays, to my mind is problematic. Would the father not want to see the children on each of their birthdays each year? Would the child who is not going to see the father on his or her birthday not feel left out? I am of the view that birthdays are something which should, in fact, be shared.
There is a need for a set of orders, restrictive and prescriptive, to be put into place. There needs to be a regime that the children understand that this is what contact is going to be. The parents need to understand that there is a regime which will need to be adhered to. The regime that is proposed would allow the children the opportunity to spend time with their father and other members of the father's family on a regular basis, and for a reasonable period of time in a way that, I intend, will not be disruptive or upsetting to them. There will be the opportunity for the father to speak regularly to the children on the telephone, and that the mother will be able to arrange that at a time, within a window of opportunity which should, perhaps, set the father's mind at rest, and it should make life easier for the mother.
I would make clear that Courts exercising jurisdiction under the Family Law Act are clearly of the view that where telephone contact is to take place, and one party is to facilitate it, there is an obligation on the parent involved to in fact, encourage contact. One cannot just stand back from the telephone and say, "There is the phone, and there is the father's number, go and ring", and leave it at that. Children aged 5 and 7 need to be aware of the fact that there are certain obligations and certain rules to be followed, and to my mind maintaining a beneficial relationship with a parent on a regular basis is as important as personal hygiene.
It is for these reasons that I make the orders at the commencement of this judgment.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: