O and W
[2002] FMCAfam 406
•20 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O & W | [2002] FMCAfam 406 |
| CHILDREN – Best interest – contact – children of tender ages – parties separated prior to birth of youngest child. Family Law Act 1975, ss.60B(1), 60B(2), 65E, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | K J O |
| Respondent: | R T W |
| File No: | DNM2444 of 2002 |
| Delivered on: | 20 December 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 2 December 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Sivyer |
| Solicitors for the Applicant: | Sivyer & Associates |
| Counsel for the Respondent: | Ms Terry |
| Solicitors for the Respondent: | Janet Terry Barrister & Solicitor |
ORDERS
That the parties share joint responsibility for the long term care, welfare and development of the children of the marriage, J J O born
16 February, 1999 and R M O born 6 June, 2001.That the said children live with the wife.
That each of the parties have responsibility for making decisions concerning the day to day care, welfare and development of the children when the children are in their respective care and control.
That the husband have contact with the children as follows:
In the period from the date of these orders until January 2004 as follows:
(a)Each alternate weekend from 9.00am Saturday until 4.00pm the following Sunday;
(b)On the intervening Saturday from 9.00am until 5.00pm;
(c)On each Monday from 4.30pm until 6.30pm;
(d)On each Thursday from 4.30pm until 6.30pm;
(e)For one period of ten (10) days during 2003 at an exact time to be agreed between the parties after the husband has given 28 days notice of his intention to take such contact;
(f)For half of Christmas Day;
(g)That if Mother’s Day is on a Sunday when the children would be with the husband, the husband shall have contact with the children on the proceeding weekend in lieu thereof;
(h)That if Father’s Day is on a Sunday when the children would not be ordinarily with the husband, the children shall have contact on the weekend including Father’s Day in lieu of the proceeding weekend thereof;
(i)That if either of the children’s birthdays is on a day when they would not otherwise have contact with the husband, for 4 hours on each of the children’s birthday. However in the event that either of the children’s birthdays falls on a day that they would be having contact with the husband, the wife shall have contact to the said children for 4 hours.
(II) From 1 January 2004:
(a)Each alternate weekend from 4.30pm Friday until 4.00pm the following Sunday;
(b)In the other weekend from 4.30pm Tuesday until the following Wednesday at 7.30am;
(c)Until R commences primary school for three periods of ten (10) days each year at an exact time to be agreed between the parties after the husband has given 28 days notice of his intention to take such contact;
(d)Once R has commenced primary school for one half of each school holiday period and failing agreement between the parties the first half in each odd ending year and the second half in each even ending year;
(e)From 12 noon Christmas Eve until 12 noon Christmas Day in 2004 and each alternate year thereafter;
(f)From 12 noon Christmas Day until 12 noon Boxing Day in 2005 and each alternate year thereafter;
(g)That if Mother’s Day is on a Sunday when the children would be with the husband, the husband shall have contact with the children on the proceeding weekend in lieu thereof;
(h)That if Father’s Day is on a Sunday when the children would not be ordinarily with the husband, the children shall have contact on the weekend including Father’s Day in lieu of the proceeding weekend thereof;
(i)That if either of the children’s birthdays is on a day when they would not otherwise have contact with the husband, for 4 hours on each of the children’s birthday. However in the event that either of the children’s birthdays falls on a day that they would be having contact with the husband, the wife shall have contact to the said children for 4 hours.
That the wife authorise the Principal of each school attended by the children from time to time to send to the husband:
(a)a photocopy of each school report concerning the children; and
(b)an order form for each school photo of the children concerned.
That the husband be at liberty to visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
That the husband and wife each keep the other informed of any major illness or accident suffered by the children when they are in his or her care and advise that other as soon as is practicable of the name of each treating doctor or like professional attended by the children.
That the husband and wife provide each other with details of any change of address not less that 14 days prior to the proposed change.
That the parties keep each other advised of their current telephone numbers.
That prior to R commencing primary school the wife be permitted to take the two children on holiday with her for a period of up to four (4) weeks each year and during such period the husband’s contact to the children shall be suspended. The wife is to give to the husband 28 days notice of her intention to take such a holiday.
That each of the parties is permitted to take the children on an interstate holiday during any block period of contact provided that both provide to the other details of an itinerary and contact numbers where the children can be contacted during such holiday.
That all extant applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2444 of 2002
| K J O |
Applicant
And
| R T W |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to competing applications for parenting orders in respect of two children, namely J J O born 16 February, 1999 and R M O born 6 June, 2001.
The parties to the proceedings are the parents of the two children concerned, their father K J O and their mother R T W. Although the parties are now divorced, for the sake of convenience only, I will refer to Mr O as the husband in these reasons for judgment and to Ms W as the wife.
The parties married on 25 May, 1996 and separated a few weeks prior to R’s birth on 28 April, 2001. Since that time, the two children have lived primarily with the wife. The husband does not seek to challenge a residence order that has previously been made in favour of the wife. However, he does seek further and additional contact to the two children concerned. There have been two previous orders made in respect of the husband’s contact to J and R. These orders have been made following interim hearings. The husband now wishes to extend the current contact orders. As is often the case in matters such as this one, the husband wishes to take a faster approach to his contact with the children whilst the wife wishes to take a more gradual and graduated approach.
The case has been made problematic due to R’s birth coinciding more or less with the parties’ separation and the obvious difficulties created in attempting to formulate a contact regime in such circumstances. These difficulties are not alleviated by the fact that the parties do not have an easy relationship with one another and mistrust the motives of the other in respect of the conduct of these proceedings generally. In particular, the wife alleges that the husband was regularly physically violent towards her during the relationship and since the parties separated that he has harassed her about the level of child support that he is assessed to pay in respect of the children. For his part, the husband alleges that the wife has sought to unreasonably restrict his contact with the children for no good reason and, by implication, has put her needs before those of the children. Accordingly, there can be little doubt, that the relationship between the parties is one characterised by antipathy and mistrust.
Throughout the proceedings to date, the main issues have been the tender ages of the children concerned; the undisputed fact that the wife has been their primary carer and how to balance these factors with the children’s entitlement to form and maintain a bond with their father in the hostile and mistrustful environment that has existed to date between the parties.
In more recent times, given the gap in ages between J and R and the different circumstances surrounding the formation of their relationship with their father, a subsidiary issue has arisen relating to whether it is appropriate to have differing regimes in respect of contact for the two children. By necessity, given R’s tender age, when contact orders were first made in respect of her and J, it was the case that there have been different orders made in respect of the two children. In particular, there have been orders allowing the husband to have overnight contact with J, whilst to date he has been restricted to daytime contact only with R. At the present time, the husband wishes to extend his overnight contact with J and inaugurate a regime whereby he has some overnight contact with R.
Neither party is in a particularly robust position financially. It is also clear, I think, in the short to medium term that they are unlikely to be able to agree easily in respect of future parenting arrangements for J and R. For obvious reasons, they are each anxious to avoid the expense of further legal proceedings. Accordingly, at this stage, they have each put forward fairly complex proposals that deal with contact arrangements for the children both before and after they start attending primary school. They also each have proposals in respect of school holiday contact.
On the 18th of September, 2001 Justice O’Ryan made the first set of orders in respect of arrangements for the parenting of J and R as follows:
1. That pending further order the two children J J O born 16 February 1999 and R M O born 6 June 2001 reside with the wife.
2. That pending further order each of the husband and wife have joint responsibility for the long term care, welfare and development of the two children.
3. That pending further order each of the husband and wife have sole responsibility for the day to day care, welfare and development of the two children whilst so ever they are in the care of each parent.
4. That the husband have contact to the child J:
4.1Each alternate weekend from 9.00am Saturday to 4.00pm on the following Sunday.
4.2On each intervening Saturday from 9.00am to 7.00pm.
4.3Each Monday from 4.30pm to 7.30pm.
4.4Each Thursday from 4.30pm to 7.30pm.
5. That the husband have contact to the child R:
5.1 Each Saturday from 9.00am to 2.00pm.
5.2 Each Monday from 4.30pm to 6.00pm.
5.3 Each Thursday from 4.30pm to 6.30pm.
Obviously, these orders reflected the fact that R was just over three months of age at the time and it was desirable for the husband to have frequent and regular contact with her of fairly short duration. This was so that there might be the beginning of some relationship between father and child, recognising the fact that the wife was R’s primary carer and therefore, the most significant figure in her life. On the other hand, given J’s greater maturity of some two years and eight months and the fact that there was a pre-existing degree of relationship between father and son, Justice O’Ryan considered it appropriate to allow the husband to have some overnight contact with him.
Since the date of these orders, the husband has pushed for this overnight contact to include R. He also wished to be able to take J to Perth for a period of seven days to visit his ailing father, who was and is seriously ill. On the basis that R was still of tender years and that J had never been away from her for a period longer than overnight, the wife did not agree to the husband’s requests in this regard. As a result, the husband instituted further interim proceedings which were heard by me on the 15th of August, 2002. I made orders that allowed the proposed trip but in the context of the limited evidence before me in the truncated interim hearing, I did not make the orders that the husband sought in respect of his contact with R. However, I did extend the hours during which he had contact with her which fell short of overnight contact. The relevant orders that I made were as follows:
1.The husband be permitted to take the child J J O born 16 February 1999 to Perth for a period of seven days upon giving seven days written notice to the wife and providing the address and telephone number at which the child will be residing during this period and ensuring that the wife has daily telephone contact to the said child.
2.The husband have contact to the child R at the same times at to the child J as set out in the orders of 18 September 2001 other than that the contact between R and the husband shall conclude at 7.00pm each Saturday.
On 15 August, 2002, I fixed the matter for final hearing on 2 December 2002, and ordered that a family report be prepared.
Applications
The husband is the applicant in these proceedings, which were commenced in the Family Court at Darwin on 22 June, 2001. The husband’s initiating application included matters relating to the division of common matrimonial property between the parties. The wife responded to this application on 25 September, 2001. On 3 December, 2001, the parties were able to reach consent orders in respect of the division of their matrimonial property. The remaining proceedings, relating to the children’s issues, were transferred to this Court at the request of the husband on 24 July, 2002.
Given the changes in circumstances of the parties and the children concerned since the proceedings were commenced in the Family Court in June, 2001, the most obvious of which are the growth of the children and the fact that R is no longer being breast fed by her mother, there is now no relevance in the orders sought by the parties in their initiating applications. Since that time, the parties have each made various proposals in respect of contact arrangements for J and R. As has already been indicated, the general thrust of those proposals and counter-proposals has been that the husband has wished to move at a faster pace than the wife and has sought more extensive and frequent contact to the children than the wife has been prepared to consider. On the day of the hearing before me, each of the parties provided me with a memorandum of the orders that they currently sought. In each case, the orders are reasonably compendious and in each case they deal with the situation between now and January 2004, when it is anticipated that J will commence primary school, as well as after. In each case they also deal with the appropriate level of holiday contact both before and after 2004. Due to the complexity of the competing orders, it is necessary for them to be set out in full at this stage. The husband seeks the following orders:
1. That the children of the marriage J J O born 16 February 1999 and R M O born 6 June 2001 reside with the wife.
2. That each of the wife and the husband have sole responsibility for the day to day care, welfare and development of the children when they are in their care.
3. That the wife jointly with the husband have responsibility for the long term care, welfare and development of the children.
4. That the husband have contact with the child J on the following terms and conditions until J commences primary school and thereafter in accordance with paras (i) to (iii) in addition to school holiday contact as detailed in Order 7:
(i) Each alternate weekend from Friday afternoon at 4.30pm until Monday morning at 7.30am save and except that if a public holiday adjoins the weekend contact shall include the Friday or the Monday with the husband’s contact to commence at 4.30pm on Thursday afternoon if the public holiday is on the Friday and to conclude at 7.30am on the Tuesday morning if the public holiday is on the Monday;
(ii) Every week from 4.30pm Tuesday until Wednesday at 7.30am;
(iii) Every other week from Friday afternoon at 4.30pm until Saturday morning at 8.30am;
(iv) For two ten day periods each year commencing in 2003 with the husband to give the wife 14 days notice of his intention to exercise block contact.
5.That the husband have contact with the child R on the following terms and conditions until 1 January 2004;
(i)Each alternate weekend from 9.00am Saturday to 4.00pm Sunday on the weekend that the husband has weekend contact with J;
(ii)Every other week from Friday afternoon at 4.30pm until Saturday morning at 8.30am;
(iii)Every week from 4.30pm Tuesday until 6.30pm;
(iv)For two ten day periods each year commencing in 2003 with the husband to give the wife 14 days notice of his intention to exercise block contact until each child commences primary school at which time school holiday contact shall be in accordance with Order 7 below.
6.That from 1 January 2004 the child R shall have contact with the husband on the same terms and conditions as detailed in Order 4 above until she commences primary school at which time she shall have contact in accordance with Order 4 paras (I) to (iii) in addition to school holiday contact in accordance with Order 7.
7.That the children have contact with the husband during school holiday periods commencing for J in 2004 or when he commences primary school and commencing for R when she commences primary school on the following terms and conditions:
(i)For the whole of the Easter break and the April school holiday commencing in the year J commences primary school and each alternate year thereafter;
(ii)For the second half of the June/July school holiday break commencing in the year J commences primary school and each alternate year thereafter;
(iii)For the first half of the June/July school holiday break commencing in the second year J commences primary school and each alternate year thereafter;
(iv)For the whole of the September school holiday break commencing in the second year J commences primary school and each alternate year thereafter;
(v)For the first half of the Christmas school holiday period such contact to include Christmas Day (save and except if the parties are each in Darwin the wife shall have contact with the child or children for a period of four hours) commencing in the year J commences primary school and each alternate year thereafter;
(vi)For the second half of the Christmas school holiday period save and except if the parties are each in Darwin the husband shall have contact with the child or children for a period of four hours on Christmas Day.
8.That each parent shall have contact with the children on each of the children’s birthdays for a period of four hours.
9.That the wife shall have contact with the children for a period of four hours on the wife’s birthday if it falls during a contact period and the husband shall have contact with the children for a period of four hours on the husband’s birthday if the children are in the care of the wife on that day.
10.That the husband’s contact with the children be suspended for two periods of days to enable the wife to travel interstate on holiday with the children prior to the commencement of school holiday contact for the children.
11.That the husband and the wife be at liberty to travel interstate during their holiday contact with the children provided only that they provide to the other parent a written itinerary no less than 14 days prior to their departure and provide a phone contact number so as to enable the other parent to have phone contact on two occasions each week.
12.That the husband and the wife provide each other with details of any change of address no less than 14 days prior to the proposed change.
13.That the parties keep each other advised of current telephone numbers.
14.That each party be at liberty to attend at the children’s respective child care institution or school and any extra-curricular activities.
15.That the wife have contact with the children on Mother’s Day if it fall son a contact weekend for a period of no less than 6 hours.
16.That the husband have contact with the children on Father’s Day if it falls on a day that the children are in the wife’s care for a period of no less than 6 hours.
In the wife’s case she seeks the following orders:
1. That the children of the marriage J J O born 16 February 1999 and R M O born 6 June 2001 reside with the wife.
2. That each of the wife and husband have sole responsibility for the day to day care, welfare and development of the children when they are in their care.
3. That the wife jointly with the husband have responsibility for the long term care, welfare and development of the children.
(A) From December 2002 to January 2004
4. That the husband have contact with the children as follows:
(a)with J:
(i) every week Monday 4.30pm - 7.30pm
(ii) weekend 1 Saturday 9.00am – 5.00pm
(iii) weekend 2 Friday 4.30pm – Saturday 5.00pm
(b)with R:
(i) every week Monday 4.30pm – 7.30pm
(ii) weekend 1 Saturday 9.00am – 5.00pm
(iii) weekend 2 Friday 4.30pm – Saturday 5.00pm
(c)with both children:
(i) on Father’s Day for 6 hours if this does not fall on a contact weekend;
(ii) for 2 hours on the children’s birthday if this falls on a week day or for 4 hours on a weekend if this does not fall on a contact weekend;
(iii) for half of Christmas Day
(iv) for a block period of 7 days on the giving the wife 14 days notice;
(v) for such other or alternate times as the parties may mutually agree.
5. Notwithstanding the above provisions, the mother have contact with the children:
(i) for 6 hours on Mother’s Day if this fall on a contact weekend;
(ii) for 4 hours on the children’s birthday if this falls on a weekend when the father has contact;
(iii)for 6 hours on the mother’s birthday if this falls on a contact weekend;
(iv)for half of Christmas Day;
(v) for at least two hours from 4.00pm to 6.00pm on 7 December 2002 for the annual DMR Christmas Party.
6. That contact with the husband be suspended for up to 4 weeks each year to allow the wife to spend holidays with the children.
7. That if either party wishes to travel with the children during their period of block holiday contact then the party travelling away shall provide within 28 days of departure written notice to the other party as well as a written itinerary containing proposed dates of travel and the address and telephone numbers of the places where the children will be staying.
(B) starts January 2004
8. That the husband have contact with the children as follows:
(i) each alternate weekend during school terms from Friday 4.30pm to Sunday 4.00pm;
(ii) on Father’s Day for 6 hours if this does not fall on a contact weekend;
(iii) for 2 hours on the children’s birthday if this falls on a week day or for 4 hours on a weekend if this does not fall on a contact weekend;
(iv) for half of Christmas Day;
(v) for a block period of two weeks on the giving the wife 14 days notice;
(vi) at such other or alternate times as the parties mutually agree.
9. notwithstanding the above provisions, the mother have contact with the children:
(i)for 6 hours on Mother’s Day if this falls on a contact weekend;
(ii)for 4 hours on the children’s birthday if this falls on a weekend when the father has contact;
(iii)for 6 hours on the mother’s birthday if this falls on a contact weekend;
(iv)for half of Christmas Day.
10. That contact with the husband be suspended for up to 4 weeks each year to allow the wife to spend holidays with the children.
11. That if either party wishes to travel with the children during their period of block holiday contact then the party travelling away shall provide within 28 days of departure written notice to the other party as well as a written itinerary containing proposed dates of travel and the address and telephone numbers of the places where the children will be staying.
In essence, the husband seeks to have contact with J for the next year on a different basis to that which he seeks in respect of R. In essence, he seeks to have contact with J on six overnight occasions per fortnight. That is, on each alternate weekend from 4.30pm on Friday until the following Monday morning at 7.30am; on each Tuesday from 4.30pm until the following Wednesday morning and in the other week from 4.30pm Friday until the following Saturday morning at 8.30am. In addition, he would want to have two ten day periods of contact with J each year. When J starts school, in January of 2004, he would seek contact for half of all school holidays.
The wife is suspicious of this proposal, which she describes as being tantamount to a shared care arrangement and one that is motivated by the husband’s desire to reduce his level of child support, rather than the needs of the children.
In respect of R, the husband seeks a more restricted contact regime until the start of 2004, this regime to include overnight contact to her on each weekend as well as on Tuesday evening. He would seek contact to R for two block periods of ten days each year. It is his position that this proposal builds on the base of the existing orders.
From January of 2004, he would seek a further extension of contact to R along the same lines as proposed by him for J with school holiday contact to be commenced when R herself starts primary school.
It is the wife’s position that it is appropriate that the husband should have contact with both children on the same basis until at lease J starts school. She does not believe that it is appropriate for there to be different regimes for the two children concerned. Given the fact that R is somewhat younger than J, this will necessarily form a brake on the level of the husband’s contact. As a result, for the forthcoming year, she proposes that there be contact overnight each alternate Friday evening, as well as on each Saturday and Monday evening. She would allow a block period of contact of seven days during this year but would seek a period of holiday contact for herself of four weeks. She seeks a longer period of holiday contact for herself, on the basis that she is the children’s primary carer and as a result the children would be more readily accepting of a longer period away with her than with the husband.
Once J commences school, it is her position that it is appropriate that the husband have contact to both children each alternate weekend and for a period of two weeks each year. She would be opposed to any additional contact involving the other weekend as, due to the fact that she has returned to the workforce, such a regime would unduly impinge upon her free time with the children. On any view, her proposal is more curtailed than the husband’s and, to a large extent, reflects the polarised positions of the parties in this matter.
Background
The husband was born 16 June, 1963. He is employed as an environmental health officer on a full time basis by the Department of Health and Community Services and is based at the Royal Darwin Hospital. In this position, he is entitled to flexi time. He does not work on the weekends. He has formed a relationship with a woman,
G S, who is aged 37. The husband and Ms S do not currently live together. She is studying child care at the Northern Territory University.
The wife was born 11 April, 1970. She is currently employed by DMR Consulting as a computer programmer. She works three days per week, namely Tuesday, Wednesday and Thursday from 8.00am to 4.30pm. As a result, both J and R attend family day care on Tuesday and Wednesday and are cared for by their maternal grandmother on Thursday. It is anticipated that the children will begin at the Church of Christ Child Care at Malak shortly, when the mother is working and from February of 2003 that J will attend Malak Pre School on each weekday. The wife has formed a relationship with a Mr M E. At the present time, she is not living with Mr E. He is a long term resident of Darwin, and is permanently employed.
The parties met in Katherine in 1994 and after travelling overseas together, married in Darwin on 25 May 1996. The marriage between them was dissolved on 9 September, 2002. There is no dispute between the parties that they separated on 27 April, 2001. At that time, the wife left the former matrimonial home situated at 29 B C, Malak, taking J with her. This property was subsequently transferred to the husband and he continues to live in it. It is a four bedroom house with a fully fenced yard. It provides ample accommodation for each of the children.
After a period of time living with her parents, the wife now lives in a two bedroom unit in Woodleigh Gardens. J and R share the main bedroom in the unit, which has a fully enclosed yard. It provides ample accommodation for both children.
On 28 April, 2001, the day after the parties separated, the wife obtained an interim domestic violence order against the husband from the Local Court at Darwin. Subsequently, the husband opposed the granting of a final domestic violence order and as a result, there was a contested hearing before Mr M, SM in the Local Court at Darwin on
25 May, 2001. The result of this hearing was that the Court did not see fit to grant the domestic violence order that the wife sought.
The evidence
Both parties were represented by counsel at the final hearing of the matter on 2 December, 2002. As directed, each of them filed an affidavit of their evidence in chief and each of them was cross-examined by counsel for the other party. In addition, the husband relied on an affidavit of a friend of his, J F. However, Mr F was not required for cross-examination.
The Court was also assisted by a family report prepared by M. Ms M is a psychologist. She attended Court for the hearing of the matter and was cross-examined by counsel for each of the parties.
Both the parties gave their evidence in a straightforward way. Excepting for two major areas of dispute between them concerning firstly, whether or not their relationship was one marked by consistent physical and emotional abuse by the husband of the wife and secondly, the attitude of the husband to paying child support, there were few significant differences in their evidence. However, as is obvious, they do have radically different views as to what is likely to be in J and R’s best interests. It was clear to me that the wife wishes to restrict to the bare minimum possible, the children’s interaction with their father. She has been consistent in this attitude since the parties separated and any concessions won by the husband in this regard have largely been as a result of court order following hard fought proceedings. The wife retains an attitude of restrained but implacable hostility towards the husband. In my view, the strength of her feelings towards the husband, is unlikely to abate in the short to medium term.
The husband was clearly angry and frustrated as what he sees as the wife’s intransigence in respect of his request to extend the terms of his contact to the children. It is his view that her attitude is unreasonable and to some extent irrational. However, he did depose that of late his relationship with the wife did, from his perception, appear to be improving. I hope this is the case but I have reason to believe that it is not necessarily so.
It was the husband’s evidence that he and the wife are generally polite with one another at handovers, on which occasions they generally restrict their conversations to matters pertaining to the children. It is the wife’s evidence that, from time to time, the husband uses contact changeovers as a venue to harass her in respect of child support issues and to raise with her the issue of the extension of his contact.
In this regard, I prefer the evidence of the wife. I appreciate that the husband feels greatly frustrated in respect of the current contact regime. In those circumstances I believe that, given his temperament, it is on balance likely that he would also express his perception that the current level of child support is unfair to him given the amount of time he spends with the children. I can well understand his frustration with the situation. In her evidence, the wife indicated that she attempts to keep all her interactions with the husband as calm as possible. I accept that she is not a person who deliberately seeks out confrontation.
I hope that once orders have been made to regulate the husband’s contact with the children on a final basis that things can settle down further between them.
Following J’s birth, the wife took maternity leave for twelve months whilst the husband continued to work. Accordingly, there is no doubt she provided substantially more care for J than the husband did prior to the parties’ separation. Also it is clear, given the date of the parties’ separation, that the wife has been R’s primary carer for the whole of R’s life to date. These are important matters. The husband acknowledges these facts and to his credit, indicated in his evidence that the wife is a good and capable mother. It is also to the credit of the wife that she, in her evidence, indicated that the husband loves each of his children very much. Perhaps, somewhat dismissively, she indicated in her affidavit that the husband is “not a bad parent”.
It is clear that the wife was initially very concerned in respect of the husband’s capabilities as a parent when the orders of O’Ryan, J were made for him to have overnight contact to J and for there to be contact with R away from the wife’s presence. However, in her evidence before me, the wife indicated that both children had coped well with contact. It was her evidence that J looked forward to contact with his father and that at the present time, R had a good relationship with him. The husband has enrolled J in Kinder Gym on Saturday mornings and both children attend there with him. The wife has also attended some sessions herself. It also seems that J coped adequately with the week long trip to Perth, although he had some form of infection when he returned to Darwin.
The wife has also acknowledged that the children have an entitlement to have regular contact with their father and that, as a matter of principle, this contact should be extended as the children grow older.
It is the wife’s position that the husband was consistently physically violent towards her during the course of the marriage. She alleges that the husband regularly struck her on the head with his open palm. She also alleges that he was verbally abusive of her during the marriage. The husband vehemently denies he was violent or abusive towards the wife.
Apart from the evidence of the parties themselves, there is no independent or compelling evidence to corroborate the position taken by either party. In this regard, I do not believe that the evidence of Mr F can be said to be supportive of either party, indicating only as it does that he himself has seen no evidence of physical trauma on the wife and has not observed anything untoward in the relationship between the parties.
Family violence or violence between spouses very often takes place in private within the home. The victims of such violence are sometimes reluctant to report the assaults on them either to Police or to other persons in positions of authority for a variety of reasons. These reasons may include embarrassment, shame, feeling of powerlessness or in extreme cases fear. Accordingly, it is not surprising that the wife is not in a position to call independent corroborative evidence in respect of her allegations.
However, it is also obvious such allegations are easy to make and it is not unknown for them to be made for malicious reasons or to otherwise gain a tactical advantage in proceedings such as these. However, in this particular case, the wife raised her concerns very shortly after the parties separated and it is obvious that she has a strong degree of mistrust for the husband.
The allegations made by the wife have been the subject of previous judicial inquiry in the domestic violence proceedings which were heard by Mr M S.M. He concluded that the husband had acted violently and offensively on previous occasions towards the wife. However, he declined to make the orders sought by the wife, because in all the circumstances he did not believe that it was warranted.
I am, of course, not bound by any finding of Mr M but am free to reach my own conclusions after observing each of the witnesses.
In my view, it is not possible for me to make a positive finding that the violence that the wife complained of did in fact take place. However, of more importance in the context of this case, is the fact that the wife does not allege that the husband’s behaviour has been or is likely to have an adverse affect on the children in future. As has been indicated, the wife accepts that it is in the best interests of the children that they should have regular contact with their father. She does not assert that due to his violent propensity, the husband is an unsuitable role model for the children and accordingly that his contact with them should be severely curtailed.
It seems that J can be, from time to time, a demanding child whilst R is more placid. The wife has complained that both children are often tired and hard to settle down following contact visits with their father. However, she conceded that things had been getting better following J’s overnight contact.
I have no reason to believe other than that both the husband and the wife are devoted parents, who have the best interests of J and R to the forefront of their respective hearts. To my mind, the evidence indicates that the husband in particular is capable of coping with the normal and routine demands of children of the ages of J and R. This certainly was the view of Ms M, the family report writer. Accordingly, in general terms, there is no reason why the husband should not have contact, including overnight contact with both J and R. The central issues in this case - given the ages of the children concerned and the nature of their relationship with their father and with each other – is what is the appropriate regime for contact and whether the children should have differing regimes in respect of their contact with their father.
It is the wife’s position that the husband’s proposal, envisaging as it does five or six nights contact per fortnight, has the potential to be extremely disruptive for the children, who are well settled into a routine at her household. She also fears that given the frequent contact handovers that such a regime would necessarily contain it would be stressful for her and in turn for the children. It is the husband’s position that the contact which he seeks is essential for him to be able to maintain and develop his bond with the children and as such is necessary for their best interests to be maintained. It is in this context that it is necessary to examine the expert evidence of the family report writer, Ms M.
The family report
The family report in this matter was prepared by M. Ms M is a psychologist and family court counsellor. She holds a Bachelors Degree in Applied Psychology and a Graduate Diploma in Applied Psychology. She is a member of the Australia Psychological Society and has been qualified as a psychologist for approximately eight years. She has been in private practice as a psychologist for the past two years. I found her report to be thorough and well considered. She interviewed each of the parties and observed each of them with R and J at both the Family Court premises and at the respective homes of the parties. I found Ms M to be an impressive and well qualified witness. I accept her evidence.
In Ms M’s view, both children were comfortable and well settled in their contact with their father. In particular, she was of the view that they were comfortable with sleeping at their father’s home, in the absence of their mother. Although R has not yet spent an overnight period at her father’s home, it is normal for her to have an afternoon nap there. Ms M observed R waking up and noted that she was comfortable with her father. In Ms M’s view, this boded well for future overnight contact.
It was clear to Ms M that both J and R had a strong attachment to both their parents. As has already been indicated, she was of the view that each of them was capable of meeting the physical and emotional needs of the children concerned. She expressed herself as being “impressed” with the standard of care that both provided to the children.
Ms M was concerned at what she perceived as a high level of mistrust and poor communication in the relationship between the parties. This view coincides with my own. In those circumstances, Ms M saw the need for there to be a certain regime to be established for the husband’s contact to the children. So far as the needs of the children were concerned, Ms M was of the view that such a regime needed to be stable and regular in order to reduce disruption in the lives of the children. She was concerned that the husband’s proposal would entail greater disruption for the children than the mother’s proposal for contact. For that reason, she was not generally supportive of what the husband proposed. However, she saw no impediment to the husband having overnight contact with R at the present time.
Of great significance in the matter is Ms M’s view that the children would benefit from having the same regime of contact with their father. In her view, the children were closely bonded with one another and as a result the presence of the other on contact visits would be a source of emotional support. In future, she would be concerned at possible emotional detriment being occasioned to one or both of them if, by reason of there being a different contact regime for them, that one or other of them felt singled out and so perceived that he or she was more or less favoured by one or other of the parents.
At the present time, R has not had any overnight contact with her father. In the circumstances of this case, Ms M was of the view that such overnight contact should be introduced conservatively. Accordingly, she did not support the immediate introduction of extended overnight periods of contact for R. Given her view that contact for the children should be similar, this by necessity meant that the husband’s contact with J should not be as extensive as that which the husband sought.
For all these reasons, Ms M made the following formal recommendations in her report:
“The present contact arrangements allowing for contact visits to the children’s father were determined 15 months ago and need to be adjusted to accommodate the children’s present ages and needs. R is now old enough to benefit from overnight visits to her father, and he will no doubt be able to establish a closer bond with her through such visits.
Due to the children’s close relationship and bond future contact would enable J and R to benefit from similar timing regarding such visits. This would mean R and J visit their father at the same times and for the same periods.
It would be prudent to limit the number of overnight visits by the children to minimise any disruptive effects such visits may entail. At present R has not had overnight contact and this change needs to be introduced in a careful manner.”
As a result of her opinion, Ms M made a number of specific recommendations in respect of the husband’s contact to the children and put forward specific times as follows:
For the period from December 2002 to January
That the father have contact with J and R:
a)Each alternate weekend from 9.00am Saturday to 4.00pm on the following Sunday;
b) On the intervening Saturday from 9.00am to 5.00pm;
c) Each Monday from 4.30pm to 7.30pm;
d) Each Thursday from 4.30pm to 7.30pm.
Ms M also recommended that the husband should have regular contact on special occasions such as birthdays and Father’s Day as well as for a block period of 14 days to enable him to take the children away with him on a holiday.
For the Period from January 2004 onwards
The father have contact with the children:
a)Each alternate weekend from 9.00am Saturday to 4.00pm on the following Sunday;
b)On the intervening Saturday from 9.00am to 5.00pm;
c)Each Monday from 4.30pm to 7.00pm.
Once again she recommended that the husband have contact to the children for specific times on special occasions. In respect of block periods of contact, once J had commenced school, she recommended that the husband have a block period of contact of 14 days in order to be able to take the children away with him on holiday.
Counsel for both of the parties are critical of Ms M’s recommendations, although for different reasons. Ms Terry, counsel for the wife, believes that the specific proposal of Ms M are unsuitable as they do not allow, particularly from January 2004 onwards, an opportunity for her client to have a full weekend with the children. She points to the fact that her client is presently working part time and in future, due to economic necessity, anticipates that she will in future return to work on a full time basis. In those circumstances, the wife is deprived of the opportunity to have “quality time” with the children. This is likely to become more of an issue as the children become older and engage in more activities out of the home. The wife wishes an opportunity to enjoy time with the children outside of the normal humdrum routine associated with school and work day weeks.
The husband is critical of Ms M’s proposals in that they do not allow him to have extended periods of contact with the children during school holidays. His counsel, Ms Sivyer points to the fact that it is unusual for children of school age not to spend a defined portion of each school holiday with the non residence providing parent.
I do not believe that Ms M can be criticised unduly for failing to turn her mind to these specific issues. I do not believe that these criticisms, although they have validity in each case, undermine the main thrust of Ms M’ report. Ms M was asked to provide a family report to address the issue of what was the most suitable contact arrangements to meet the best interest of the children concerned. To my mind, she has done this. It falls to me to determine the specific nature of the orders that will be made in this case, after hearing all the evidence in it.
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this Part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about all future parenting arrangements for J and R.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve J and R’s best interests.
Although section 60B (2) speaks of the right of children to be cared for by both their parents and that parents share duties and responsibilities in respect of their children, there is no presumption of equality of care provided by the Family Law Act.The over riding concern in making any orders to do with children pursuant to the Act, is the best interests of the children concerned. It is often appealing for one or other of the parties in proceedings such as these to put forward a regime for the care of children that involves a substantial element of shared care because such arrangements appear to be equitable to the parents themselves. However, when the best interests of the children are considered, factors often arise that militate against such shared care arrangements. These factors include, but are not limited to difficulties the parties may have in communicating with one another in respect of matters relevant to the welfare of the children concerned, the respect one party has for the other as a parent; and considerations concerned with the practicality of the child or children having two homes at the same time. It is the wife’s case that the husband’s proposal is in effect a shared care regime, involving as it does the children living with him on either five or six nights per fortnight. For those reasons she points to factors such as these as being relevant to the Court’s current considerations.
Section 68F(2) factors
a) J and R’s wishes
J is just under four years of age and R is eighteen months of age. On any view, they are children of tender years and as a result each lacks sufficient insight and maturity for their wishes to be a strongly determinative factor in this matter. In any event, there is not a great deal of evidence of what their wishes, if any might be. This is hardly surprising given the ages of the children concerned. As has already been indicated, the wife has indicated that J looks forward to his contact visits with his father. On that basis, I accept he wishes to continue with his regular contact visits with his father. Given his age, I take with a grain of salt, the husband’s assertion that J wishes to have more overnight contact with his father. Similarly, I do not think that a great deal turns on the fact that J refers to the husband’s home as “our house” and to the wife’s home as “mum’s place”.
b) The nature of the relationship between the children, their parents, and other significant people
The evidence is clear that both J and R enjoy a close and loving relationship with both their parents. However, there can be little doubt that the wife is the most significant figure in both children’s lives at the present time and is likely to remain so for the immediate future. Because of the primary position the wife occupies in respect of arrangements for the care of the children, it is important that her views in respect of future arrangements for their care be treated with respect. Accordingly, in my view, it would be imprudent of me to ignore her view that it is likely to be unsettling for R in particular, to have frequent overnight absences from her. This accords with Ms M’ view. I agree with Ms M and the wife that it is likely to be confusing for R to spend up to five or six nights per fortnight at her father’s home.
It also clear that the children have a significant bond with one another. As they grow older, it is likely that this bond will strengthen, as the gap in their ages is not particularly great. In these circumstances, it is likely to be of benefit to the children to share the same contact regime with their father. Accordingly, to a large extent, R’s needs in respect of contact must act as something of a brake on the husband’s wish to have greater contact with J.
I am concerned that the husband’s proposals for his contact to the children are unduly excessive at this stage, and as a result, cannot be said to be in the best interests of the children. In addition, if I was to accede to his proposals, it is unlikely that this will lead to more cordial relations between the parties. I agree with the submission of counsel for the wife that the husband’s proposals are approaching a joint care arrangement for the children. Given the hostility between the parties, a situation which is unlikely to abate for some time to come, it is my view that such an arrangement is essentially unworkable. At the moment, the parties do not have an easy parenting relationship and find it difficult to co-operate with one another. In the event that I was to accede to the husband’s request, this would necessarily entail the children moving backwards and forwards between their parent’s households on several occasions each week. This would involve very many logistical considerations, which are likely to become more complicated as the children get older and begin school. In my view these factors, when coupled with the recommendations of Ms M, militate against the husband’s proposals for contact.
In this day and age, it is a common phenomenon for the residence providing parent to be engaged in full time employment. I can well appreciate why such a parent would want to have regular weekend contact with his or her children that is free of any other contact obligations with the other parent. In any view, there is a significant difference in the type of time spent with children on a weekend in leisure activities and that involved during the week in preparing children for school. Such “quality time” on weekends is precious to all concerned.
Accordingly, there is much to recommend the wife’s position that it is only reasonable in the circumstances for her to have one weekend each fortnight with the children. This is other than Ms M recommends. In my view, it is appropriate that the wife have such a weekend for herself and the children. The interests of the children and their need to maintain their relationship with their father can be balanced by extending the husband’s contact in the other weekend. However, this arrangement should not begin until J has commenced primary school at the start of January 2004.
I agree with Ms M that given R’s age and her previous lack of overnight contact with the husband that it is appropriate that this overnight contact be introduced gradually. The parties and indeed Ms M, agree that there should be two different regimes for contact before and after J commences primary school. In the short term, given R’s age, it is appropriate that there be more frequent periods of contact between the husband and the children. This will involve the Saturday of each week, as she proposes as well as continuing the existing Monday and Thursday evening arrangement. It is now appropriate for the husband to begin overnight contact with R, although she is still very young. However, she is accustomed to sleeping at her father’s and the degree of change will be gradual.
From January 2004 onwards, I am of the view that it would be appropriate to allow the husband to have more extensive overnight contact to both children in lieu of the Monday and Thursday evening arrangement. This will include a period of mid-week overnight contact. However, this will also allow the wife to have every second weekend free of contact for herself and the children. In my view, the relationship between the husband and the children is a secure and strong one. This accords with Ms M’s opinion. In my view, there is no need to extend the husband’s contact to either child on the basis that it is necessary to strengthen his bond with either of them.
At this stage, given Ms M’s recommendations and her concerns about R’s age and the fact that she has not had extended periods of time away from her mother, it is in my view appropriate that I approach the issue of block contact with some caution, particularly until such time as R commences school. The evidence, in my view, indicates that J coped well with his holiday in Perth with his father. This was a holiday of some seven days. In my view, it is important that both children have an opportunity of forming relationships with members of both their maternal and paternal family. Given the fact that many members of the husband’s family live in Perth, it will inevitably be a lengthy and expensive process for the children to travel from Darwin to Perth and back. Balancing these competing interests, it is in my view appropriate that the husband, at this stage, have the opportunity to have contact with both children on three occasions per year for periods of ten days. However during 2003, given Ms M’s recommendations and because R will have only had limited overnight contact, there should be only one such period of contact. Once again her tender age must act as a brake on the husband’s desire to have contact with her and J. Once R has commenced school, it will be appropriate for the parties to share the school holidays. In my view, it is appropriate that each of the parties have the same opportunities to take block periods of contact with the children. In this regard, other than that she has indicated she wishes the opportunity to have twenty eight days holiday with the children each year, the wife has not put forward any specific proposal in this regard.
The parties are broadly in agreement regarding the sharing of contact to the children on significant days and orders will made in respect of these matters.
c) The likely effect of any change in the children’s circumstances
Neither party proposes moving from Darwin. Fortunately, as a result, both children will be able to spend regular periods of time with both their parents and it is to be expected that the relationship that the children share with both their parents will be enhanced and developed as the years go by.
In my view, the husband’s proposal to have contact with the children for either five or six days per fortnight, constitutes a quite radical change from that which has existed to this stage, that is the children living primarily with the wife. Ms M has indicated that the pre-eminent need for the children at this stage is certainty and stability in respect of arrangements for their care. For this reason she has recommended that the pre-existing arrangements and in particular, arrangements in respect of overnight contact for R, be changed gradually. For reasons already provided, I accept Ms M’s recommendations in this regard.
d) The practical difficulties associated with contact
The parties live close together in the northern suburbs of Darwin. The husband works normal hours and has regular weekends off. Accordingly, there are no practical difficulties which prevent him having regular contact with the children.
e) The capacity of each parent to meet the children’s needs (including emotional and intellectual needs)
In my view, the evidence in this regard is clear. The wife is a capable and devoted parent. Similarly, the husband is also capable of providing for J and R’s physical and emotional needs. Initially, the wife was suspicious of the husband’s abilities in this regard. However, in my view, it is a telling factor that the person who is likely to be the husband’s most telling critic, herself concedes that the husband has done a “good job” in respect of caring for the children during contact.
f) The children’s maturity, sex, background and other characteristics
As was indicated at the outset, the most telling feature in this case is the tender ages of the children concerned and how, as a result, contact arrangements should be formulated to meet their best interests. In the orders that will be made in this matter, I have endeavoured to take into account the ages of the children concerned and the level of their development. In particular, I have endeavoured to take into account the fact that R has not as yet had any overnight contact with her father.
In my view, neither child has any other particular characteristic that is relevant under this consideration.
g) The need to protect the children from physical or psychological harm
I am satisfied that neither party would actively expose either J or R to any direct physical or psychological harm. The evidence indicates that both the children are happy and well adjusted, although J has some minor behavioural problems. In the past, the wife has taken J to a child psychologist, Ms Mc. The reason for this is that she alleged that the husband has been critical of her to J, particularly in regards to the issue of his payment of child support. I accept that the wife did have a valid reason to seek Ms Mc’s advice. Although, I accept that the husband would not consciously seek to harm either child, I am concerned that he, because of his feelings of antipathy towards the wife, may unwittingly cause some harm to the children. If the husband has been critical of the wife to J in the way she alleges, this is inappropriate behaviour and does have the potential to do J harm. The question of the appropriate level of child support to be paid is a matter for the consideration of the adults involved in the matter. It is no concern of the children who do not have the necessary intellectual insight to understand such matters at this time.
h) The attitude to the child and the responsibilities of parenthood
I am satisfied that both parties have a positive attitude towards J and R and to the responsibilities of parenthood generally. However, I am concerned that both the parents in this case may have a tendency to undermine, either actively or tacitly, the important role the other parent has to play in the lives of the children concerned. In my view, one of the greatest protections that can be given to the children of separated parents, is the realisation that both their parents love them and that the parents themselves respect the other’s ability as a parent. Naturally, children love and have a sense of loyalty to both their parents. If one parent is disparaging of the other, it may have the consequences of disturbing the emotional equilibrium of the children concerned.
i) Family violence involving a child or member of the child’s family
The wife has made serious allegations against the husband regarding his violent and abusive conduct towards her during the marriage. The husband denies any such behaviour on his part. The wife alleges that on one past occasion she was struck whilst holding J. J was very young at the time as he was being breast fed. Otherwise there is no allegation that either of the children has been the subject of any direct physical violence.
The evil that is represented by violent conduct of the type complained of by the wife, was described by the Full Court of the Family Court
In the marriage of J G and B G(1994) 18 FamLR 255 and In the marriage of Patsalou (1994) 18 FamLR 426. Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil. The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict with the use of violence in the future. Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents. In this regard, a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of any other person, especially the other of a child’s parents, is not a suitable role model for children.
In my view, the evidence as it presently stands, does not indicate that the children are at risk from the husband either from direct physical violence or constituting an unacceptable role model for them. For her part, the wife does not seek to restrict the husband’s contact to the children on this basis alone.
j) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s, and their parents, circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospects of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
As I observed at the outset, neither of the parties are in a particularly strong financial position. The husband, in particular, is somewhat bitter about the amount of money he has expended to date in obtaining orders in respect of the children in both this Court and the Family Court.
Although both J, and particularly R, are very young, it is desirable that orders be made as comprehensively as is possible to deal with all future aspects of their parenting. By necessity, this will dictate that the orders made at this juncture will be somewhat complicated and will deal distinctly with the period up until J starts school and the period afterwards. Both parties and the family report writer, Ms M, recognise the need for such a situation. In making the orders that I have done in this matter, I have endeavoured to balance the needs of the children concerned with the desirability of bringing about a situation that will not require the parties to return to Court in future to seek further orders.
Conclusions
For the reasons provided, I have formed the view that the interests of J and R will be best served by the making of orders along of lines essentially advocated by both the wife and Ms M.
In my view, the nature of the husband’s proposals for his contact to the children constitutes too abrupt a change for J and R, and as a result can not be said to be in their best interests. I also accept that it is appropriate for the children to share a common regime as far as contact is concerned.
The husband’s proposals may appeal to his sense of equity and fairness in terms of a more equitable division of the time the children spend with each of their parents. However, this is not a relevant criteria for the making of orders in this case. I am of the view that the orders that will be made in this matter, will be sufficient to maintain the strong bond that exists between the father and the two children concerned.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 20 December 2002
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