N and C - [2003] FMCAfam 13

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & C

[2003] FMCAfam 13

FAMILY LAW – Contact – step-parent seeking contact with child – child living with mother and her new husband – child seeing father – whether step-father should have role in child’s life – whether child would be confused with contact with three father figures.

Family Law Act 1975, ss.60B(2), 64C, 65C, 65E, 65DA(2), 68F(2)

Re: C V D (1998) FLC 92-815.

Applicant Stepfather:

S D N

Respondent Mother:

A J B (formerly C)

Respondent Father:

M A B

File No:

(P)HBM2265 of 2002

Delivered on:

11 March 2003

Delivered at:

Melbourne

Hearing dates:

8, 9, 10 January 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr McVeity

Solicitors for the Applicant:

McVeity and Associates

Counsel for the Respondent:

Mr Edwards

Solicitors for the Respondent:

Temple-Smith Barclay

Counsel for the Child Representative:

Mr McLean

Solicitors for the Child Representative:

McLean Phillip and Bartlett

ORDERS

That the mother have responsibility for the long term care, welfare and development of C J C born 23 March 1997 ("C").
That C live with the mother and the mother be responsible for her day-to-day care, welfare and development.
That the applicant S D C have contact with C as follows:
(a)Each third weekend from 4.00 pm Friday until 4.00 pm Sunday to extend to 4 pm Monday if it is a public holiday;
(b)For five days in each of the May and September school holidays and ten days during the Christmas school holidays at times to be agreed by the parties and in default of agreement such contact to take place in the second half of the school holidays periods;
(c)On the applicant's birthday for not less than two hours if the birthday falls on a day when C is attending school or three hours if it occurs on a day when she is attending school;
(d)On C’s birthday by telephone;
(e)At Christmas,
(i)In alternate years commencing 2003, for two hours on Christmas day at times to be agreed;
(ii)In each other year commencing 2004, from 5.00 pm Christmas day until 3.00 pm Boxing Day.
Such further or other contact as may be agreed between the parties.
Unless otherwise agreed, the applicant collect and return C at the commencement and conclusion of contact from the home of the mother’s mother S J G, and the mother be responsible for arranging for C to be available for collection from her mother’s home.
All applications otherwise be dismissed.
All exhibits be returned at the expiration of 30 days from the date of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)HBM 2265 of 2002

S D C

Applicant Stepfather

And

A J C

Respondent Mother

M A B

Respondent Father

REASONS FOR JUDGMENT

Introduction

The applicant, who is not a biological parent, seeks contact with C J C aged five (nearly six) who lives with her mother.
There are three men including the applicant who are at the moment playing a part in her life. One is her natural father, M A B, who was introduced into her life early last year.
One is her stepfather, M B, who started living with her mother in November 2001 and married her in October 2002.
The third is the applicant who had a relationship with the mother from 1997 until 2000. Following their separation he had a regular regime of contact with C and after that regime was stopped by the mother in early 2002 he obtained an order from the Federal Magistrates Court on

15 May 2002 which provides for him to have contact with C as follows: -
a)each second weekend from 4.00 pm Friday to 4.00 pm Sunday;
b)each second Friday from 9.00 am to 2.00 pm.
The applicant filed an application seeking residence, however prior to the hearing he filed an amended application in which he seeks orders that C live with the mother and that he have contact: -
a)Each second weekend from 4.00 pm Friday until 4.00 pm Sunday;
b)For half of each school holiday period;
c)For five days over the Easter school holiday period;
d)On Father's Day from 10.00 am to 6.00 pm;
e)On the said child's birthdays and the applicant stepfather's birthday;
i)from 3.00 pm to 7.00 pm if that birthday falls on a day when C is not attending school;
ii)from 5.00 pm to 7.00 pm if that birthday falls on a day when C is attending school;
f)In 2003 from 3.00 pm Christmas Eve until 3.00 pm Christmas Day and every second year thereafter;
g)In 2004 from 3.00 pm Christmas Day until 3.00 pm Boxing Day and every second year thereafter.
The mother seeks orders that she have residence and the responsibility for the long term and day-to-day care, welfare and development of the child and that any contact between the child and the applicant be reserved. Effectively she opposes contact between the applicant and C.

Background

C J C was born on 23 March 1997 and is five, nearly six, years of age. The mother is aged 31. She has three children (C, L aged eleven, and C aged eight).
L lives with his father, R T, and the mother has regular contact with him on alternate weekends.
C was born as a result of a de facto relationship between the mother and J W. C has a significant medical condition (super ventricular tachycardia). She lives with the mother and has contact with her father each alternate weekend.
C was born as a result of a relationship between the mother and M B. That relationship ended whilst the mother was still pregnant.

The applicant's case

The applicant contends that he and the mother commenced a relationship on 14 December 1996. In March 1997 they began living together but prior to that time he spent most nights at the mother's home. He asserts they lived together at G S, L; G S, D; and F C, D. He asserts that they separated for about six weeks when they were living at L and the mother moved out and on another occasion when they were living at G S he moved out for about two weeks. Apart from those two periods he asserts that they lived together from March 1997 until their separation in September 2000. He asserts that the relationship between them broke down as a consequence of the mother beginning an internet romance with someone in E. That person is M B, her present husband.
He contends that there was no doubt between himself and the mother that he was not the biological father of C and was not recorded as the father on her birth certificate although he was on Social Security's files as being her father.
His case is that the biological paternity is irrelevant, that he has always considered her to be his daughter and that she had until early 2002, always believed him to be her father. He asserts that apart from visiting C on her first birthday, Mr B had no further contact with C until he was reintroduced to her by the mother at or about the time the present proceedings were commenced or contemplated. He asserts that no other person had a regular part in C's life as her father during their relationship.
He contends that during the four year period they lived together he played an active and important part in her life. He asserts that he looked after C for extensive periods of time and that when the mother was attending a course he was effectively the main parent for C.
After they separated in September 2000 and when the lease on the property they had been living in expired, the applicant moved to live with his mother at 101 Gunn Street, Devonport for six months. When that home was sold his mother rented a two bedroom home and he moved with her to W S, D.
He contends that after separation he and the mother reached agreement about ongoing contact that he would have with C. The agreement involved contact starting at approximately 4.00 pm to 6.00 pm on Friday and concluding between 5.00 pm on Sunday or after lunch on Monday. He contends that he and the mother were easily able to agree on contact arrangements and if she was attended T either he or his mother would have C on Mondays, Wednesdays and Fridays from about 8.00 am to 4.30 pm. Not long after separation he contends that the mother went to E for a period of three weeks and during that time she left C with a friend of hers, T R. The applicant had contact with C each second weekend but C was not allowed to stay with him during that period.
He contends that there was a later period in September 2001 when the mother travelled to E again for a period of about five weeks. During that period C was in the care of the applicant and his mother as the mother could not find anyone else to look after her while she went away.
Shortly prior to the separation of the applicant and the mother, his mother had travelled from V to live with them in T.
The applicant contends that the respondent's present husband, M B, arrived in T some time after September 2000 and left in March 2001. He returned again permanently in December 2001 and the applicant contends that around this time difficulties began to arise for the first time in relation to his contact with C. He contends that on Friday, 18 January 2002 the mother did not arrive for contact which had been on a regular fortnightly basis. When he went to see her to find out why she had not delivered C for her usual fortnightly visit, he contends that the respondent told him that he could no longer have contact with C. The applicant told her he would visit everyday and when he attempted to do so he was told that C was unavailable and various excuses were made. It was made clear to him, he asserts, that the mother's view was that it was best she have no contact with him because she would not be able to see him in the future. The mother refused to allow him to speak to C when he rang on her birthday on 23 March 2002.
The applicant contends that he was concerned that the mother would discuss with C the fact that he was not her father and had threatened to do so. He contends that in February and March 2002 when the contact arrangement began to break down a number of friends and acquaintances began to say to him that they had heard he was not C's father. He contends that C had always called him, "daddy" and dad and always known him as her father.
The applicant contends that C has a close and warm relationship with him and with his mother whom she refers to as "nanna". He also contends that his brothers have spent a lot of time with C at his home and his mother's home and that C had been comfortable with them.
The applicant commenced a relationship with K V in March 2002 and they began a de facto relationship in July 2002. Ms V is 44 years of age and has a 16 year old daughter.
Following the cessation of contact by the mother the applicant brought his current application and on 15 May 2002 orders were made for contact between him and C. The applicant contends that until December 2001 the contact had operated reasonably well although there were attempts by M B to make changeovers for C difficult. In particular he described having the door shut in his face if he arrived early and Mr B making reference to him in front of C as "S" when it was C's practice to call him "daddy". He asserts that generally Mr B's demeanour was hostile, rude, threatening and invasive of his personal space. For those reasons, a change in the changeover point was sought and the collection point was for some time at the home of M B, C's biological father. He contends that the changeovers went well until December this year [sic].
He contends that on 29 November 2002 he was scheduled to exercise contact with C and attended at Mr B's home to collect her. He says that C was already there and looked confused. He asserts that Mr B asked C to tell him and then said:
You can't have her today, A's taking her to the Show.
The applicant queried this and was told again:
A's taking her to the Show.
Mr C then left.
On 6 December he was again scheduled to exercise contact with C and arrived at Mr B's home to collect her. C was standing nearby. C said to him:
I'm not going.
He contends that she looked upset that she could not come with him. He pointed out that he had an order that allowed him to collect her on Fridays and asked Mr B what was going on. Mr B, he asserts, complained that he had to get up a couple of hours earlier so that C could be dropped off and would prefer her to be collected from the mother's home. The applicant asserts that he asked C:
Did mummy say you're not allowed to go with me?
and she nodded. There was a third occasion in December when contact did not occur.
The applicant then filed an application for contravention and following a proposal by the applicant's solicitors and the intervention of the child representative, the changeover point was changed from Mr B's residence to the mother's home.
Between that time and the hearing three further periods of contact have taken place.
On 20 December the applicant asserts that he attended at the mother's home and the door was answered by M B. He asserts that he was polite and told Mr B it was a nice day. Mr B’s response, he asserts, was to say:
It'll be better in two weeks time.
He asserts the mother brought C to the door and that both the mother and the father made a point of telling her to say goodbye to her dad, being a reference to Mr B who was apparently present at the time. The applicant asserts that as he walked to the car Mr B called out words to the effect, "Make the most of it".
The second occasion was on Friday, 27 December. The applicant alleges that Mr B answered the door and his whole demeanour and tone were bad natured and there was no conversation between them.
The third visit which was 3 January there was again, he asserts, a conversation with Mr B who said:
I hope you're happy, she's in the bedroom crying, she wants to go to her dad's.
C came with him but complained that her mother and Mr B had been mean to her.
The applicant asserts that he has had a significant involvement with C and that until early 2002 he was the only father that she had known. He contends that they have an excellent relationship and that she enjoys the contact with him and his family members. He contends that he is a person who has been significant in her care, welfare and development and that it is in her interest to continue to have a relationship with him, notwithstanding he is not C's biological father, as a consequence of the close bond between them and the fact that he has been a father to her for most of her life.
The applicant contends that not only did the parties live together but that they became engaged on the second anniversary of the commencement of their relationship. The applicant's case relied upon affidavits by himself, his mother A J S, his de facto partner F V.

The mother's case

In her affidavit the mother contends that her relationship with the applicant was always fairly casual and that attempts by her to involve him more in care of her children were unsuccessful. In particular she gave this as the reason that she moved in with her friend, T M R, and ended the relationship with the applicant in August 1999.
She asserts that during their relationship she and the applicant did not live together:
Although we did spend nights together from time to time.
She says that they lived in separate accommodation although the applicant spent most weekends staying at her home.
She complains about the applicant's attitude to the children and says that on the Friday and Saturday nights she stayed at her home he would remain in bed until midday or later leaving her to care for the children by herself. She asserts that his only involvement with the children was to yell at them if they were noisy and he was still in bed watching TV in the middle of the day. She complains that he would telephone from the bedroom phone to the kitchen to ask for a cup of coffee on many occasions. She asserts that when she enrolled in a T computing course the applicant was asked to mind the children but refused saying:
They're your kids, you look after them.
She asserts in particular that on Christmas Day in 1998 the applicant would not join her and her family for Christmas and was not interested in her children or her family generally.
She concedes that following separation C had contact with the applicant on alternate weekends which she says was prompted by the opportunity to have C cared for by the applicant which allowed her an opportunity to spend some time with L who was spending alternate weekends with her. She says in her affidavit:
I also thought it might be good for C to have a male influence in her life.
She says that she was beginning to have concerns about the alternate weekend contact and that C started to return home from the weekend looking dirty and unkempt and often came home tired. She complained that C came back from the applicant's home using bad language and that finally in December 2001 she asked him to arrange a lay-by for clothing for C that he agreed to pay as he was not making any other payments for her. On 3 January she asked him about the final payment and he had not made any payments. She asserts that he said:
I am not the father. Go and ask the real father.
It was this, she says, that prompted her to refuse him any further contact with C as she asserts that she believed he was not interested in maintaining a relationship with her.
She asserts shat M B began having contact with C in about February 2002. At first this contact was a few hours at a time although it gradually increased to one day a fortnight and it is currently every second weekend between Friday afternoon and Sunday afternoon. She contends that she would like C to continue seeing M B on alternate weekends and that she and the applicant should have no contact.
It is fair to characterise the mother's case as being one in which the relationship between herself and the applicant was a casual one and that the applicant had virtually no relationship with, or significant interest in C.
The mother relied upon an affidavit by herself, an affidavit of T M R, S J G (her mother), M B (her husband), and M B (the biological father).

The evidence

The applicant denied that he had shown little interest in the children. He described a good relationship with C and L although it was clearly less important than that between him and C. He described C as having a father who she saw regularly whereas he was regarded by C as her father. His evidence was that he changed nappies, gave her a bottle and put her to bed and treated her as if she was his own child. He conceded that it took several months before he started to interact in a significant way with C but said that after that period he started to become attached to her and started changing her, getting bottles and getting up in the morning for her. He conceded he did not get up during the night.
He described his father role as not being automatic in this case but rather growing upon him and that as C grew they grew together a bond and attachment. He conceded, with some insight, that when he first met the mother he went out most weekends, drank alcohol quite a lot and smoked marijuana. He described growing up as a result of his relationship with C and becoming less interested in drinking. He said that he had completely given up marijuana smoking. He said that with hindsight he should have got up during the night to care for her, he should have changed her more often and done more around the house. He described C enjoying the contact with him and with his extended family. He accepted that he spoiled her to the extent that he gave her a lot of attention as she was a single child for him and he has no other children.
I accept that he has been able to handle her eating difficulties and appropriately disciplines her by taking her to her room and talking to her. Physical discipline is not used. He said that he had considered that it might be confusing for her to have three father figures in her life at the moment but that if he believed it was not in her best interest for her to continue to see him that he would walk away. He asserted that he believed their relationship was important and although it could be confusing for her to have three father figures his relationship brought considerable benefits to her. He described them as:
a)Unconditional love;
b)Letting her be "the little girl she is";
c)Enabling her to see the people she likes;
d)Giving her a lot of fun.

The applicant's mother confirmed that she lived with the parties when she came to live in Devonport and she cared for C about three times a week after the parties separated when the mother was doing a T course. It is clear that the mother and Mrs Smith did get along well. This is confirmed by the mother being prepared to leave C with her and the applicant during her five week trip to the U K. Mrs S was upset when contact ceased and tried to discuss this with the mother on several occasions. The mother was unwilling to make a commitment and this led Mrs S in some frustration to make threats to assault her. This is in the context of frustration at the mother refusing to make a decision about allowing Mrs S and the applicant to see C and the threat was not carried out. Furthermore, Mrs S went to the mother's home and apologised for threatening to "belt her". Such was her concern about seeing C that she begged the mother to let the applicant see C even if it was at her home. The mother refused to allow any further contact to take place. As a result Mrs S went to a lawyer and arranged for representation for the applicant. She did so she said because she wanted to get some advice about whether she had any rights and the applicant was too upset to go in case he was told there was nothing that he could do.
I am satisfied that the application made was made by the father and that he was not prompted to do so by his mother, although she too wants to continue her relationship with C who sees her as a grandmother. To the extent that it was contended that the applicant had no real interest in instituting proceedings and it was really because of the grandmother's interest, I reject that assertion.
Ms V lives with the applicant and has a 16 year old daughter. She obviously interacts well with C and C appears to have a comfortable relationship with her. She described C enjoying her time with them and their family, always doing a lot when she is with them. She described their weekends as "fun".

Credit of the parties

I find the applicant to be in the main a truthful witness and for reasons which will become apparent in these reasons, I prefer his evidence where it conflicts with that of the mother. Both parties, I find, were not entirely frank with C and at least during one period when they were living together did not advise C that they were in a de facto relationship. The applicant produced a document which was an application to Kmart where he worked for a staff discount. In that document which was signed by the mother, she was described as his fiancée. The applicant conceded that a staff discount was only available to immediate members of his family, a spouse or a fiancée. It was not available to a de facto partner. There was every reason therefore for the parties to describe the mother as a fiancée and I am not persuaded on the evidence that the parties were actually engaged. However that is not important in my view to the overall relationship between the parties.
As I have indicated, the mother's case was essentially to trivialise the relationship between herself and the applicant and accordingly by extension, between the applicant and C. However the mother was not truthful about the extent of their relationship.
Having initially said that they never lived together, she conceded that between October 1999 and August 2000 they lived together in the applicant's home in C C, C B. She also conceded that in 1998 they lived together in L. These were significant concessions, independently of other findings that are available on the evidence. The mother had denied that she and the applicant lived together in an affidavit sworn on 13 December and in two previous affidavits. She conceded that she had always known that to be incorrect and that she had lied. She conceded that it was a significant lie because it was an important part of the case being presented by her that she had never lived with the applicant. She conceded in cross-examination that while they were living together C referred to the applicant as "daddy" as did she. She conceded that that had started fairly early on in the relationship and that when they lived together
The three of us lived as a normal family unit.
She conceded the applicant was introduced to others as C's dad and that C herself believed him to be her father.
A number of birthday cards from C and the mother to the applicant were tendered. All of these cards are written in affectionate terms and in the case of C refer to "daddy". It is apparent from these cards that the applicant had a close and loving relationship with C as did the mother at that time. I find that the applicant had a close relationship with C, that she regarded him as her father and he treated her as his daughter.
A letter written by the respondent mother to the applicant during a separation indicated that the relationship, far from being a casual one, was regarded as an important relationship to the mother. She conceded that her affidavit was wrong about the relationship between them.

I find that the parties lived together at the following addresses:
a)In about March/April 1997 just after C's birth, the applicant moved into the respondent mother's home in Morris Avenue and lived there with her until approximate March/April 1998 when they moved to G S, L where they shared a house with the applicant's brother. They stayed there only six to eight weeks when there was a period of separation for about sixteen weeks. During this time the applicant stayed with friends;
b)In about November 1998 the mother moved with her brother to G S, D and was there until October 1999. I am satisfied that the applicant moved in with them and lived with the respondent during that period. I accept his evidence in this respect for a number of reasons. First, the evidence of the mother is unreliable and clearly designed to give a false impression of the real position between the parties and the relevant relationship. Secondly, the applicant produced letters from the A T O written to him at G S, D.
In relation to his occupation of M A the applicant produced a driver's licence for the period between March 1998 and March 1999 showing M A as his address, letters from friends addressed to him at M A and invoices from his accountant addressed to M A. Even a card from the mother was addressed to him at that address.
Between October 1999 and the parties separation, which the mother finally conceded was about September 2000, she conceded that they lived together at C C in D. I do not accept the evidence of the mother that the applicant did not live with her at G S. The mother conceded that she made a false declaration to C about the paternity of C, naming the applicant as the father. She said that she put his name down with his agreement as she had a problem with Mr B. She could not adequately explain in my view why it was that she could not have given Mr B's name to C as she subsequently had no difficulty in providing it in early 2002. It is more likely, in my view, that the version of the events put to her by the applicant's counsel were correct, namely that Mr B had been previously described to C by the applicant as a boarder when he was in fact her partner. She agreed that she had described him as a boarder and that that had been untrue. I find it is more likely than not that she was concerned that if she subsequently described him to C as the father of C they would realise that he was not a boarder and there would be consequences for her.
The manner in which the mother chose to advise C the applicant was not her biological father and that her biological father was Mr B also gives cause for concern. I find on the evidence that it was shortly after Mr B commenced living with the mother that she determined to cease the applicant's contact with C and decided to inform her of her biological parentage. This was not prompted by Mr B but by the mother who approached him to arrange for him to be put on the birth certificate as the father and for C to be notified that he was the father. Notwithstanding there might be some consequences for him he agreed. When asked about this the mother said that Mr B did not have a regular source of income and was unlikely to find himself the subject of any significant child support assessments, if at all.
The mother obtained no expert advice as to how C might be told about her actual parentage as she had believed up until that point that the applicant was her natural father. I find on the evidence that it was Mr B's entry into the life of the mother that caused her to decide that:
a)C should be told of her real parentage;
b)Contact with the applicant should be stopped; and
c)Mr B should be prompted to take a role in her life
I find that these actions were done with the intent of removing the applicant from C's life rather than because they were in the best interests of C.
The mother admitted that Mr B does not like the applicant. I accept the evidence of the applicant as to his comments at changeovers. Mr B was rude and aggressive towards the applicant and this takes place in front of C.
The mother's actions are even more surprising when she admitted that she has concerns that Mr B may sell drugs in the D area. She conceded that her concern was based on the fact that she knew he had a history of use and had probably been dealing in drugs. She further accepted that there had been irresponsibility on his part regarding C.
The animosity towards the applicant and the mother's desire to remove him from C's life have led her to act irresponsibly as a parent. On

6 December she sent C who was then ill (and subsequently diagnosed with chicken pox) to Mr B's home for the changeover for contact. Although she told Mr B that C was unwell she did not instruct him to tell the applicant and Mr B did not do so. She said that in her opinion the applicant had no entitlement to that information. In cross-examination she admitted that upon reflection her actions in not ensuring that C's ill health should be brought to the attention of the applicant with whom she was supposed to spend the weekend, was irresponsible parenting. It took her some time to make this concession. She conceded further that the reason that she did not think it reasonable to share such information with the applicant was because she did not like him.
The mother said that the applicant was never spoken about in their household and denied that Mr B spoke about the applicant. She admitted however that there was a hostile relationship between Mr B and the applicant and that Mr B dislikes the applicant. She admitted that C could get the message in the household that any mention of the applicant was a "taboo" subject. She would not give any promise willingly to speak positively about the applicant to C.
She said that the reason she stopped the contact was that she was not getting financial assistance from Mr C and that she had asked him to pay for a lay-by so that items could be purchased for C. The lay-by had about eight weeks to run and about five weeks after it had been going, which was 3 January, she called him at work and she says that the amount owing was $150 and that he said:
I'm not the real father, ask the real father.
The applicant denied making those comments and said that he had told the mother that he had no money over Christmas and was not in a position to pay off the lay-by at that point but intended to do so.
The applicant has not been particularly responsible for making a financial contribution to C, other than when she is with him. Given the role he asserts, and that I have found he played in her life it would have been reasonable for him to have been making a regular financial contribution. It is easy to understand why the mother would have been annoyed with the applicant for not making the lay-by payments when she rang him but it is not justification, in my view, for ceasing all contact between him and C and, on the evidence, I find not in C's interests.

The evidence of Mr B

Mr B indicated that he was in Australia on a temporary visa at present but expected to obtain a permanent visa and had no intention of returning to the U K with the mother. He confirmed her evidence that they intended to make their home in T.
Mr B's evidence was given in a credible and forthright manner. It was, according to him, the simple view of the mother and himself that it was time to remove Mr C from C's life and to introduce her own father to her. This included the cessation of her calling Mr C "daddy" and using that term to describe Mr B. Mr B described this process as "loose strings" - things that needed "tidying up." He agreed that the catalyst for it was lack of financial responsibility, that he agreed that there was no discussion with Mr C about an acceptance of a greater financial responsibility. He conceded readily that he and the mother decided to cut off his contact and to replace that relationship with one, with Mr B.
When pressed he could see no reason why C couldn't continue to have a relationship with Mr C if it was good for her, but he complained that the extent of the contact was too much, given that Mr B is now seeing C on a regular basis. He conceded that Mr B's contact with C is about one overnight on alternate weekends, either on a Friday or Saturday and that he never had C for a weekend on a regular basis. He also candidly conceded that it was the introduction of Mr B's contact and the contact that Mr C was given pursuant to the interim orders that was now creating what he described as a problem for the family. He candidly admitted that he was shocked by the decision of Roberts FM on 15 May 2002 to give Mr C continuing interim contact with C.
His view, again candidly expressed, was that Mr C should not have any contact and he admitted that this view was formed without having any idea of what the relationship between Mr C and C was like.

The evidence of Mark Andrew B

Mr B is unemployed and has no immediate plans to either obtain employment or leave the immediate area of L although he has lived away from T at times. His relationship with C commenced in February 2002 when he was contacted by the mother. At her invitation he attended at her home and spoke to her and Mr B and conceded frankly that the discussion involved Mr C being removed from the picture as a person having a relationship with C and Mr B become involved with her.
Mr B has seen C on a regular basis since that time although the contact is of a shorter duration than the mother originally indicated. It is confined to an average of one overnight period each alternate weekend. I accept that at first Mr B treated C as a small friend but that their relationship has got closer and she has now started to call him daddy and he is genuinely pleased at their relationship and would like to maintain it. The extent to which he would do so without the commitment and imprimatur of the mother in my view remains problematic. Mr B also expressed the view that Mr C should be excluded from C's life, but he could not articulate any reasons to why this should be so.

The Family Report

A family report was prepared by J J d J who interviewed all of the relevant parties and observed C with them. His observations of C were characterised by comfortable relationships with all of the parties involved. He said "I observe C has become momentarily confused when her care was transferred from Mr B to Mr C, however, she adjusted quickly with no objective distress evident. Mr C frequently referred to himself as "dad", however, C was not observed to refer to him in this way. .No awkwardness or distress was observed when Mr C left and C was transferred to Mr B. Mr B's interaction with C can be characterised as relaxed and C appeared very comfortable with this."
In the paragraph headed "Primary Findings", Mr d J made a number of comments in relation to the attachment between C and Mr C. He said, "Mr C has a strong emotional attachment to C and she has been instrumental in making positive changes in his life. While he recognised that C has been pulled in many directions, Mr C finds that the prospect of being separated from her upset him. The impression gained is that these are issues of personal development and maturity reflecting adult needs that are not child-focussed”.
“ 28. C appeared to interact with equal confidence with Mr C, Mr B and Mr B."
“ 29. It was not evident that C shares the strong attachment expressed by Mr C or that she is distressed by being separated from him.   While there remains opportunity for Mr C to be a significant, positive individual in C's life, in my view the cessation or reduction of that conduct would not be significantly disruptive for her.”
“30    The involvement of Mr C, Mr B and Mr B as "father figures" is potentially confusing for C. While Mr C expressed concern for C in this regard, he is adding to this problem by frequently referring to himself as "dad", when he has not been the primary care giver for more than two years. The impression gained was that Mr C does not appreciate the reality of the presence of significant other male adults in C's life and the complexity facing her in this regard." …
“32.   The current contact arrangements with Mr C are diminishing C's contact with her siblings and Mr B and appear to require review in a manner that takes into account other dimensions in her life.”
Mr de Jong recommended that any order granting contact with Mr C give consideration to C's needs to preserve and strengthen her relationship with siblings, L and C, and preserve and strengthen her relationship with Mr B. He suggested that contact with Mr C be modified, for example, day contact once each month in order to allow for the development of the other relationships.
Having heard and seen the witnesses I am not satisfied that the findings which Mr de Jong stated as "primary findings" are accurate. There are several reasons for this. First, Mr de Jong formed the view that Mr C was incorrectly trivialising Mr B's initial involvement with C which he believed to have been more significant than it actually was. In fact, Mr C's description of the almost non-involvement of Mr B prior to 2002 was an accurate description.
He was also influenced by the fact that he was influenced by the mother's version of Mr C's involvement in C's life and her diminution of the importance of that relationship to C. He noted in his report the different versions given to him by the parties. In relation to the mother's version he said "Mrs B tended to discount the relationship, claiming Mr C never actually lived with her in a full-time de facto capacity and did not contribute significantly in a practical or financial capacity to the care of C. Mr C asserted that he commenced a full de facto relationship with Mrs B, moving to live with her, and severing all ties with his former accommodation within four weeks of meeting her. Mr d J was clearly in the position where he was not able to verify which of the parties' version was an accurate one, and he conceded in his cross-examination that if Mr C's version was correct and his contact with C through all of her life had been consistent and significant then it would affect his recommendations, particularly his recommendation in paragraph 32 that the contact arrangements may need review to take into account the other dimensions in her life.
He conceded that there is potential for benefit to C from a relationship with Mr C and that the situation whereby she continued to see him could in fact be enriching for her. He appears also to have been influenced in his initial views by the fact that Mr C was seeking residence which he thought was an unrealistic position to take. He conceded that C could enjoy a positive relationship with all three male figures.
When cross-examined about his recommendation that the contact be one day a month he conceded that it would create a different relationship and that it would be easier to jeopardise that relationship if the parties were not committed to it. He described the task in deciding what contact was appropriate as one in which a way should be found not to compromise the existing relationships.

He noted that the relationship with Mr B was likely to become more important to C as she became older but made this assumption on the basis that Mr B would continue to be a regular and consistent figure in her life. He conceded that if Mr B's contact was uncertain then the certainty of continuing contact with Mr C could be a position factor in C's life.

The Law

The contact orders sought by the applicant are parenting orders and are to be dealt with in the confines of Part VII of the Family Law Act. A parenting order, which includes an order for contact between a child and another person may be made in favour of a parent of the child or some other person (s.64C).
Any person concerned with the care welfare and development of the child may make an application for a parenting order (s.65C). The Court may, subject to this division, make such a parenting order as it thinks proper. The objects of this part of the Act as set out in s.60B(2) include the object that children have a right of contact on a regular basis, with both their parents and that other people significant to their care, welfare and development. The objects are always subject to s.65E which provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as being the paramount consideration. In determining what is in the best interests of a child, the Court must consider the matters set out in s.68F(2) in so far as they are relevant in each particular case.

Any wishes expressed by the child

C is nearly six years old. Quite properly, in my view no one sought to rely on the wishes of C alone as a basis for the orders sought by them. It is however clear from the evidence of all of the parties that C enjoys her contact with Mr C.

The nature of the relationship of the child with the child's parents and with other persons

C's primary relationship is with her mother and this case was essentially about relationships with other persons and the relative importance of them to C. I accept the evidence of the applicant and his witnesses as being more credible than that of the mother and witnesses who supported her case. But more particularly the mother admitted untruths and presented a one-sided, and in many cases clearly wrong description of the relationship that had formed between C and the applicant. I find that the relationship between the mother and the applicant was a much more significant relationship than she was prepared to admit initially, and that from April 1997 save for a period of about three months in 1999 they lived in a de facto relationship until their separation. From C's birth up until the commencement of 2002 when C was five, I find that Mr C was the only person that she called "dad", she knew of him as her father and the applicant was treated by C and the respondent as if she was his father. The applicant's family was treated as grandparents and similarly related relatives. During this five year period it is likely that the relationship was important and strong for both. The mother and her witnesses conceded they had no idea of the strength of the relationship between C and Mr C and clearly gave no consideration to it.
Despite the fact that Mr d J was influenced by information imparted to him which was not accurate, he conceded that the relationship between Mr C and C if it continued could be an enriching one for her. He found there to be a positive relationship between C and the applicant that could co-exist with a relationship with her natural father.
I am satisfied from the evidence that Mr C has had and continues to have a close relationship with C. Up until the commencement of 2002 she believed him to be her father and he treated as if he were her father. She knew no other father figure at that point. He has continued, since interim orders were made to have regular contact with her. Similarly, his family members treat her as though she is a member of their family and she is comfortable in his home with his de facto wife. I accept his evidence and that of his witnesses as to the enjoyment C has in being in his company and in his household. The mother and her witnesses have virtually no understanding of the relationship between C and Mr C, no knowledge of the nature of that relationship and attach no importance to it.
C has a comfortable relationship with Mr B who is her stepfather. Whilst it can be expected that as she will be living in the household with the mother and Mr B, that relationship will potentially in time strengthen, it is of short duration and not a relationship which has other than in a practical sense, significance to C at this stage.
C has now developed a relationship with Mr B. It is likely to be a significantly different relationship to that which she has with Mr C. Whilst Mr B has his own individual personality and role as her natural father, and has a genuine feeling for her, it is unlikely that he would have the same capacity to guide, direct and mentor her that Mr C would have. He has a significantly more limited life and aspirations for C than the applicant and his ongoing regular contact is likely to be predicated on the extent to which it is convenient and attractive to the mother.
Mr B has clearly been used by the mother as a vehicle for endeavouring to cease C's relationship with the applicant and replace it with that of Mr B. Whilst the establishment of a relationship between C and her natural father is likely to have been a positive thing for her, the extent to which the relationship will be encouraged to the same extent in the future, if Mr C continues to have contact, is unclear. It is similarly unclear whether Mr B would have the personal resources to pursue contact, or a particular level of contact, if the mother is not agreeable to it.
Independent of these matters, Mr B's lifestyle itself leads to uncertainty about the extent to which he is likely to be a consistent influence in the sense of having regular contact and involvement in C's life. There is little direction in Mr B's life and there have been periods when he has chosen to live a solitary and almost hermit like existence. No confident prediction could be made that he will remain living in the north west of T and having regular contact with C into the foreseeable future.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
a)either his or her parents; or
b)any other child or person with whom he or she has been living.
It is really the mother's case that C's relationship with her natural father and her siblings will be disrupted and affected if the relationship with the applicant continues, at least at a level similar to or greater than the contact which is presently occurring. That situation however has been directly brought about by the mother's actions in introducing Mr B into C's life as a direct attempt to remove the applicant from it. Nevertheless, C has developed a relationship with her natural father and it is important that she has contact with her siblings where possible. It is a matter in my view of weighing up the relative importance of the relationships and ensuring that C has the opportunity to continue those relationships which are important to her.

The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs

I am satisfied that to the extent that is necessary, given that the orders will provide for contact and not residence, that the applicant has the capacity to provide for C's emotional needs. Mr B has the capacity to provide for some of her needs but in a more limited way. There is no dispute in this case about residence so that in a sense the capacity of the mother to provide for C's needs is not an issue. She has clearly been the primary care giver for C throughout all of her life and continues to be so. Nevertheless she has not always been able to provide for C's emotional needs and her inability to accept, or unwillingness to do so, the relationship between C and the applicant and the manner in which she has sought to prevent it exemplifies this.

The attitude to the child and the responsibilities of parenthood

I am satisfied that the applicant has a responsible attitude to C and to her parenting. Despite the hostility evidenced to him by the mother and by Mr B the applicant did not indicate any particular hostility towards the mother or Mr B and in my view has acted, with some provocation on occasions, in a mature way. Despite the manner in which Mr B was introduced into C's life the applicant supports the continuing relationship with Mr B. I am also satisfied that the other members of his family have a similarly responsible attitude.

Conclusion

It is an uncontroverted fact that the applicant was treated during the relationship by C and the mother as though he was her father. Following the separation of the parties in 2000, by agreement with the mother the applicant had ongoing and regular contact with C until the mother sought to unilaterally stop that contact in early 2002. Orders made by Roberts FM on 15 May 2002 resumed that contact on each alternate weekend and each second Friday. The applicant contends that the contact presently in place is working in the best interests of C and that there is no case made out to change the present arrangements.
The mother contends that there is an onus upon the father to establish that contact is positively in the interests of C and that there is no evidence in this case of a positive benefit to her. She contends that there are difficulties between the parties and the hostility and animosity between them are such as to make continuing contact contrary to C's interests. It is submitted on her behalf that her efforts to unilaterally stop contact indicate the strength of her views in this respect.
It is further contended by the mother that in the light of such a hostile relationship it would not be in the interests of C for contact to take place. She further contends that on a more practical level the contact if continued will interfere with the child's capacity to spend leisure time with her siblings and her household and will impede the now regular regime of contact with her natural father. Finally the mother contends that the pull of three father figures in her life will be confusing for her and that to continue a relationship with a non-biological parent will ultimately provide no benefit to her and the continuation of contact would be contrary to her interests.
As I have already indicated in these reasons the Act itself does not differentiate between a biological parent and any other person and it is open to the Court to make an order in favour of a person who is not the biological parent if it is in the best interests of the child to do so. Furthermore, the biological parent does not stand in any preferred position nor in any way impinge upon the principle that the best interests of the child are paramount see Re: C v D (1998) FLC 92-815 at 10.10.
This is a case in which I reject the submissions on behalf of the mother. It is a case in which there is evidence that the interests of C will be promoted by continuing a relationship with the applicant. The evidence is that she has a good relationship with the applicant and his family, is comfortable with them and derives considerable pleasure from the relationship and the time she spends with the applicant and his extended family. There is, contrary to the mother's contention, considerable strength and depth to that relationship. This is hardly surprising given that until early 2002 C treated the applicant as her father and the only father she had known. Their relationship was encouraged, quite properly in my view, after the separation of the parties by the mother. The mother's entire case was predicated on the basis that her relationship with the applicant was merely that of boyfriend/girlfriend and that accordingly his relationship with C was of little consequence. The evidence establishes quite to the contrary.
I do not accept that this is a case in which the hostility towards the applicant by the mother and her husband is such that it would not be in C's interest for contact to take place. In a sense, the hostility is really not so much to the applicant or his demeanour and personality but rather to the concept of him having contact. Arrangements have been made for contact to occur both prior to and after orders were made and although there have been incidents of bad mannered behaviour the parties have by various means ensured that contact changeovers have taken place reasonably well for C. The mother says that she would find it very difficult to accommodate the changeovers and she is so opposed to contact continuing. For a period of time, the changeovers were taking place at Mr B's home but this had its own shortcomings and Mr B's own involvement in my view now makes that arrangement less appealing.
The applicant suggested that her mother, S J G, could perhaps facilitate the changeovers at her home. Mrs G gave evidence. She was reluctant to have Mr C come to their home for contact changeovers. However I am satisfied that Mrs G has the best interests of C at heart and whilst the preference of the applicant and her witnesses would be that they did not have to hand C over to Mr C, the best arrangement for C in my view would be for the changeover to take place at Mrs G home. The mother's attitude and the extent to which Mr B has supported and encouraged the cessation of contact, and in my view made changeovers on occasions difficult, make it preferable for them to occur somewhere else. I am satisfied that Mrs G and the applicant will behave civilly towards each other and there was no evidence that they had been impolite or rude to each other in the past. I am satisfied that both Mrs G and the applicant can act in the best interests of C to ensure that changeovers are pleasant for her.
The issue of confusion for C with three father figures and the interruption of family life by contact with a third family was made much of by the applicant. It is important, in my view to record that not only did the parties not give any evidence of confusion on the part of C but the report by Mr d J indicated that C was not confused as to the relationships that she had and was comfortable with all of them. Mr C and Mr B are so different and their styles, it is obvious that C will get entirely different benefits from the relationships with each of them.

I cannot be certain in any event to what extent Mr B's present contact arrangements are really arrangements made by the mother (although Mr B is enjoying the contact) and to what extent the present contact with him will continue if the mother is not supportive of it. It is impossible to predict in the long term future the strength of the relationships which C will have with each of the three men who are playing a part in her life at the moment. Presumably as she gets to know Mr B better and has been in the household with him longer her relationship with him will strengthen and deepen although it may never be as strong as that with Mr C. It may ultimately be as she gets older other ties in her life which might mean that the applicant's contact arrangements with her should change. However, in the foreseeable future in my view the applicant has much to offer C, not the least of which is a committed and concerned role as a father figure and someone who is likely for the rest of her life to be concerned about her welfare and available to assist her through life. I am satisfied that she also derives considerable pleasure and enjoyment from the time she spends with the applicant.
In the end the question of what contact should be ordered is a question of balancing up the importance of the contact between C and the applicant and the need for her to spend leisure time at home and with her other siblings and natural father. The child representative submitted that this could be achieved by providing for the applicant to have contact each third weekend with a mid-week overnight on the other two weeks. He also submitted that some holiday contact would be appropriate.
The applicant submits that he should have contact on a basis which is no less than the existing order which is each second weekend from Friday until Sunday and each second Friday from 9.00 am until 2.00 pm. I have regard to the need for C to spend time with her mother's household and her siblings and with Mr B. As far as Mr B is concerned, however, I am satisfied that the mother is able to make appropriate arrangements for him to see C at appropriate times and Mr B's arrangements are flexible enough to accommodate this. There was no evidence which has established that the existing arrangement has impeded C's relationship with her siblings or that it interferes with the arrangements in the household. The arrangement effectively was one which was originally put in place when the parties separated and although Mr B was not involved at that time I am not satisfied that his present arrangements could not be made more flexible. Indeed, his present arrangements seem to me to have been put in place largely in order to replace the contact with Mr C.
Nevertheless, there have been changes in C’s life since early 2002. The mother has remarried and there are family activities which include C. There is a need to find sufficient time for her to spend time with her siblings. She commences school this year and that of itself will create pressures for her. Contact with the applicant each third weekend will enable her to have regular contact with him without putting undue pressure on her time. As C will be attending school however I do not consider it appropriate for there to be any further contact on alternate Fridays. There is no reason given as to why she should not spend some holiday contact with the applicant. Indeed, I made orders at the conclusion of the hearing for such a period of contact to occur.
I have given consideration to the question of parental responsibility for her long terms care, welfare and development. In the ordinary course, if the applicant and the respondent were the only ones involved in C's life there would be no question that joint parental responsibility would be appropriate. This case however is different and there are competing interests involved with C's long term decisions. The mother and Mr B who are married will obviously want and need to make decisions which will effect her future. Mr B is her natural father and it is normal and reasonable for him to have some input as well. Mr C is a person who is concerned with her welfare and will be having contact with her but this is an area in which, in my view, there could be considerable disruption if there are at least three people trying to make decisions for her long term care, welfare and development and her interests would be better served in my view were the mother to be responsible for those decisions.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: A Patterson

Date: