P and McB
[2003] FMCAfam 23
•7 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & McB | [2003] FMCAfam 23 |
| CHILDREN – Best interests – application to change residence arrangements following final consent orders. Family Law Act 1975, ss.60B(1), 60B(2), 65E, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | R W P |
| Respondent: | J L McB |
| File No: | DNM2350 of 2001 |
| Delivered on: | 7 February 2003 |
| Delivered at: | Darwin |
| Hearing dates: | 29 & 30 January 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Gieran |
| Solicitors for the Applicant: | Terrill & Associates |
| Counsel for the Respondent: | Ms D. Elliott |
| Solicitors for the Respondent: | NT Legal Aid |
| Counsel for the Child Representative: | Mr D. Story |
| Solicitor for the Child Representative: | Morgan Buckley |
ORDERS
That the child of the relationship D R P born 26 May, 1999 live with the mother and she have responsibility for his day to day care, welfare and development.
That the parties jointly share responsibility for the long term care, welfare and development of the child.
That the father have contact with the child as follows:
(a)During school terms on two weekends out of every three from 3.00pm Friday until 8.00am the following Monday provided that if it is a long weekend, contact shall conclude at 8.00am the following Tuesday.
(b)For one half of each school holiday period being the first half of each school holiday in 2003 and each odd ending year hereafter and the second half in 2004 and each even ending year hereafter.
(c)By telephone at all reasonable times but no less than once per week at 6.00pm each Wednesday.
(d)That each party be at liberty to take the child interstate during periods when the child is in his or her care during school holidays provided the other is provided with notice in writing of the intention of taking such a trip 21 days prior to the scheduling of such a trip and the other parent is provided with an itinerary setting out the details of travel and telephone numbers and addresses at which the child can be contacted.
That if the child’s birthday is on a day when he would not otherwise have contact with the father, the father shall have contact with the child on his birthday for four hours at times to be agreed, and failing agreement from 3.00pm to 7.00pm.
That if Father’s Day is on a weekend when the child would not be with the father, the mother shall have contact with him on the proceeding weekend in lieu thereof.
That if Mother’s Day is on a weekend when the child would not be with the mother, the mother shall have contact with the child on that weekend in lieu of the preceding weekend.
That the mother authorise the principal of each school attended by the child from time to time to send to the father:
A photocopy of each school report about the child;
An order form for each school photo of the child.
That the father be at liberty to visit the preschool or school attended by the child from time to time for events, activities or functions routinely attended by parents.
That the mother and father each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as practicable of the name of each treating doctor or like professional attended by the child.
That each of the parties be and are hereby restrained from denigrating the other parent, or discussing any aspect of these proceeding and the judgment delivered herein, in the presence or hearing of the said child.
That each party inform the other within 48 hours of such change, of any change in his or her address or contact telephone number.
That all applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2350 of 2001
| R W P |
Applicant
And
| J L McB |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the appropriate parenting orders for one child, D R P born 26 May, 1999. The parties to the proceedings are D’s parents, his father R W P “the father” and his mother, J L McB “the mother”.
Both parties wish that on a final basis, D should live with him or her and have regular defined contact with the other party. The parties each acknowledge that there is a high level of conflict between them and that this has the potential to be harmful for D. Because of the intractable nature of the conflict between the parties – and by intractable I mean that the conflict is deeply entrenched and bitter – I decided that D should be separately represented in these proceedings. An order was made to this effect on the 2nd of April, 2002. The legal representative for D in these proceedings is David Story, “the child representative”. It is also the father’s position that the mother is not a competent parent and has subjected D to neglect from time to time.
Applications
The position of each of the parties can be simply put. The father is the applicant in these proceedings. By his amended application[1], he seeks the following orders:
[1] Father’s amended application filed 19 June 2002
(1)That the orders made in the Federal Magistrates Court at Darwin on the 3rd October, 2001 be dismissed.
(2)That the child of the relationship, D R P born the 26th May, 1999 reside with the father save and except for the periods detailed in Clause 4 below and that he have responsibility for the day to day decisions affecting the child’s care, welfare and development.
(3)That the parties have joint responsibility for the longer term decisions affecting the child’s care, welfare and development.
(4)That the child reside with the mother for the periods detailed below and during those periods the mother have responsibility for the day to day decisions affecting the child’s care, welfare and development:
(a)From 7.30am each alternate Friday to 4.30pm each alternate Monday;
(b)Such other times as may be agreed between the parties.
(5)That changeover take place in the food mall in Palmerston Shopping Centre.
Counsel for the father fleshed out this proposal by indicating that the father anticipated the mother having some form of overnight midweek contact. It is the father’s position that such an arrangement will minimise conflict between the parties by reducing the number of potential interactions between them and will in the long run provide a more stable situation for D.
At the commencement of the proceedings before me on the 29th of January 2003, counsel for the mother submitted a memorandum of the orders her client sought. These orders are as follows:
(1)That the child of the relationship D R P born 26 May 1999 do reside with the mother.
(2)That the father and the mother do share the responsibility for long term decisions concerning the child’s welfare and development.
(3)That each party shall have sole responsibility for the day to day care of the child when the child is in his or her care.
(4)That the father have contact to the child as follows:
(i)Each alternate weekend from 3.00pm Friday until 3.00pm Sunday;
(ii)For half of all school holidays being the first half of each in 2003 and the second half of each in 2004 and alternatively thereafter (including the whole of Christmas Day in 2003 and alternatively thereafter);
(iii)For Father’s Day should it not fall into a period of contact as specified above;
(iv)By telephone each Wednesday at 6.00pm.
(5)That each party be at liberty to take the child interstate during periods when the child is in his or her care during school holidays provided the other party is notified in writing 7 days prior to departure and such notification include details of the itinerary and contact details.
(6)That the father do collect and deliver the child to the mother’s residence at the commencement and conclusion of contact.
At the conclusion of his final address, the child representative submitted that it was his position that D should continue to live with his mother and that in order to reduce potential flashpoints for conflict between them, the father should have contact with D for two weekends out of three and for half of all school holidays. He also advocated that D should be collected and returned before and after each contact period at the mother’s home.
As is apparent from these competing proposals, there have been orders made earlier in respect of arrangements for D’s care. Both parents acknowledge that these orders have been ineffective at reducing conflict and should be changed. The earlier orders have been criticised for the frequency of contact hand overs and the location selected for those hand overs.
On the 3rd of October 2001 these orders were made with the consent of the parties:
(1)That the child of the relationship, D R P born the 26th May 1999 reside with the father as detailed below and that during such time the father have responsibility for the day to day decisions affecting the child’s care, welfare and development:-
(a)Each alternate weekend from 4pm on Friday until 5pm on Sunday to commence Friday 5th October 2001;
(b)Each Wednesday from 5pm until 7.30am the following day;
(c)Each Thursday from 5pm until 7.30am the following day;
(d)For half of each school vacation period to commence in the year that the child commences school;
(e)For half of each Christmas Day with the child to spend the first half of Christmas Day 2001 with the father and then the first half in each alternate year thereafter and the child to spend the second half of Christmas Day 2001 with the mother and then the second half in each alternate year thereafter;
(f)Each Father’s Day;
(g)Such other times as may be agreed between the parties.
(2)That the child reside with the mother for the balance of the time not detailed above including each Mother’s Day and that during such times the mother be responsible for the day to day decisions affecting the child’s care, welfare and development.
(3)That both parties retain joint responsibility for the long term decisions affecting the child’s care, welfare and development.
(4)That each of the parties spend time with the child on his birthday, such times to be by agreement between the parties.
(5)That each party be allowed to travel interstate with the child for a period not exceeding three weeks in any one year until such time as the child commences school.
At this stage on 3 October 2001, it is apparent that, ostensibly at least, the father was content to allow D, who was then two years and four months old to live primarily with the mother. Following these orders, the parties utilised the Palmerston Police Station for contact hand over. This was at the instigation of the mother. This was not satisfactory and lead to conflict.
On 21 June 2002, the orders were modified again as follows:
(1)That the child D R P born 26 May 1999 reside with the father as follows:
(a)Each alternate weekend, commencing 21 June 2002, from 5.00pm on Friday until 8.00am on the following Monday morning.
(b)Each Wednesday from 5.00pm until 8.00am the following Thursday morning.
(c)Each alternate Friday commencing 28 June 2002 from 5.00pm until 11.00am the following Saturday.
(2)At all other times the said child is to reside with the mother.
(3)The child is to be collected and returned for each period of contact (other than the contact concluding on Saturday mornings) at the premises of Rapid Creek Child Care Centre. The mother is to deliver the child ten minutes before such contact is scheduled to conclude begin and the father is to return him ten minutes before such contact is scheduled to conclude.
(4)In the case of the contact as set out in order 1(c), the father is to return the child at the premises of Centacare ten minutes before the contact is scheduled to conclude.
(5)Neither party is to denigrate the other in the presence or hearing of the child.
It was hoped that the utilisation of the Rapid Creek Child Care Centre for hand over, would reduce the level of conflict. Again difficulties have persisted and each parent is currently of the view that D should live predominantly with him or her, to break the cycle of conflict. Currently, each parent asserts that he or she is more able to meet both D’s emotional and physical needs.
It is the father’s position that his living arrangements, at his home at 9/95 R Road, B S, provide a more stable environment for D than the mother’s current and proposed living arrangements. He submits that this stability will be particularly important for D, given that he is about to start pre-school and in the next year primary school. He suggests that not only has the mother’s parenting of D in the past been haphazard and lacking, but also her plans for his future are uncertain. This, he says, is very unsettling for D. He is also fearful that the mother wishes to take D with her to Adelaide and so undermine his current strong relationship with D. Accordingly, it is his position that he can better foster the relationship between mother and child if D lives with him than the mother is likely to foster his relationship with D, in the event that the current arrangements remain in force.
For her part, the mother denies that her arrangements for D’s care are unstable. To the contrary, she points to the fact that, if D is placed in the father’s care, it is likely that the father will be compelled, by financial necessity, to keep working full time. As a result it will be necessary for D to be placed in childcare for long periods of time, to his emotional detriment.
It is the mother’s position that the father has no regard for her and for the central role that she has played in D’s life to date, as his primary care giver. As a result, she argues, that the father does not have a well developed attitude to the responsibilities of parenthood and will be unlikely to foster the bond between D and her. She denies that she is either a poor parent or so consumed with hatred of Mr P that she cannot see the importance of D’s relationship with him. It is her position that the catalogue of parenting omissions laid at her feet by the father are symptomatic of the father’s almost pathological disdain for her, rather than any failing on her part. It is her position that at this stage, it is not appropriate to change what is a long standing arrangement for the care of D. She denies that she has any plans to leave Darwin for Adelaide.
Given these circumstances, it is not surprising that the conflict between the parties is deep and entrenched. At the present time, neither party can see any merit in the position advocated by the other for the care of D. They have difficulty discussing even the most trivial issues concerning D with one another. The dispute between them is vitriolic and long standing and I suspect has caused each of them to behave in a way which they have later had cause to regret.
In order to assist the Court with the disposition of this matter, a family report was prepared by a social worker, Mrs Marjorie Loadman. In her report[2], Mrs Loadman identified the following issues as central to the case:
·The animosity and poor communication between the parents and their ability to co-operate as parents in enhancing D’s development and well being.
·The concerns each parent has in regard to the other’s ability to perform parental responsibilities.
·The ability of each parent to co-operate in maintaining the child’s attachment with the other parent.
·The firm belief of Mr P that Ms McB will again attempt to leave the Northern Territory with D.
·The fragility of Ms McB’s living and accommodation arrangements and her lack of any long term plans.
·Ms McB’s objection to D spending long hours in a Child Care Centre.
[2] Family report paragraph 6, 7, 8, 9, 10 and 11
However, in her evidence before me, Mrs Loadman indicated that both parents were good and capable parents, who in different ways had much to offer D. It was her opinion that D was firmly attached to both his parents. Because of this, it was her tentative view, that a shared parenting regime should be favourably considered by the Court, with D moving backwards and forwards between his parents, every five days.
None of the parties advocate such a resolution of the matter. Each sees only the possibility of the further perpetuation of the conflict between the parties, if such an option were adopted. Accordingly, it is the position of all concerned that the matter be resolved on the basis that one of the parties should provide the majority of D’s day to day care and that the other should have regular defined contact with him, primarily on weekends and school holidays.
The dilemma in this case is that, due to the parent’s different personalities and attributes, they both have much to give to D through their respective styles of parenting. It is clear to me, that like the parents themselves, their respective styles of parenting vary greatly. This is one, but not the sole cause of the current level of conflict between them. However, they are both clearly loving and devoted parents. Due to the animosity between them, an arrangement for the shared care of D is not an option and accordingly the Court must choose between two capable parents, as to with whom D will predominantly live. If D moves to live with the father, it will mean a change to an arrangement that has been in place for sixteen months. It is a difficult and finely balanced case. Each party can muster creditable and compelling evidence in support of his or her case. Mrs Loadman herself, does not see one parent or one option being clearly superior to the other.
Background
The father was born in Angaston, South Australia on the 11th of May 1963. He is a welder by trade. The mother was born in Adelaide, South Australia on the 28th of April 1967. Both parties have family who live in South Australia. The mother was previously involved in a long term relationship with J L and has three children with Mr L, namely K born 1 September 1985; J born 29 July 1987 and H born
1 November 1992. These children live with Mr L in Adelaide and have done so since 1994, following contested proceedings in the Family Court of Australia. The mother had regular defined contact each weekend to the children. I accept that this was a source of great heartache for her.
The father has no children apart from D. He and the mother met in South Australia and formed a relationship in November of 1995. Although her children were still young, the mother decided she would leave South Australia in early 1996 and take an extended holiday around Australia. I accept that she found it too emotionally painful to see her children regularly but not have them permanently live with her. The father decided to come with the mother on this trip. They bought a caravan together.
In mid 1996, the parties arrived in Darwin and lived at a caravan park for approximately three years. D was born in Darwin on the 26th of May 1999. Following his birth, the father continued to work as a sub contractor doing welding. Prior to D’s birth, the mother had casual work but left the workforce to care for D.
In early February 2000, the father inherited some money from the estate of his father. With this he purchased a property at 9/95 R Road, B S. The property is a three bedroom house on 5 acres of land with a bore and gardens. The property is close to his heart and he enjoys living a semi rural lifestyle on the outskirts of Darwin.
The parties and D lived at this property until they separated in July of 2001. Prior to this time, the father continued to work on a full time basis as a sub contracting welder and the mother stayed at home and cared for D. The parties have different views as to why the relationship between them broke down. It is the father’s position that he had concerns about the standard of care the mother was providing to D, the competence of her domestic skills and her attitude to money. It is the mother’s position that the father was drinking to excess and was emotionally unstable. It is common ground that on the 26th of July, 2001, the mother left the former family home with D and travelled interstate.
It will be necessary to examine in greater detail the circumstances surrounding the mother’s departure from Darwin at a later stage in these reasons for judgment. However, following her departure, the father applied for a Commonwealth Information Order and Recovery Order in the Federal Magistrates Court at Darwin on the 31st of July, 2001.
On the 1st of August, 2001 Federal Magistrate Mead ordered that, on an interim basis, D should reside with the father and to this end the mother should forthwith return him to the father. She also ordered that Centrelink provided information regarding the whereabouts of D and the mother and that a recovery order should be made, in order to give effect to the interim residence order that had been made. The father’s application was made in the absence of the mother and prior to service of the father’s application on her.
The recovery order was executed by Officers of the Federal Police at the Mount Barker Caravan Park in South Australia on the 7th of August 2001. Between this date and the 3rd of October, 2001, D lived with his father at the B S property. The mother returned to live in Darwin. As has already been indicated, the parties reached agreement on a final basis on the 3rd of October, 2001 that D should return predominantly to the care of his mother and have regular contact each alternate weekend and overnight during the week with his father. However, it is clear that the circumstances surrounding D’s recovery and his return to live in Darwin, have too a large degree poisoned the relationship between the parties and dissipated what little store of goodwill that previously existed between them.
Following the orders of 3 October, 2001, the mother demanded that D be collected and returned for each period of contact at the Palmerston Police Station. The father has continued to live at his property at B S and to work as a welder. After a period of time living in rented accommodation in Palmerston, the mother has been living with D in a rented caravan and annex at the KOA Caravan Park, in Malak. She has lived there for about twelve months. Malak is in the northern suburbs of Darwin. B S is in the rural hinterland to the south of Darwin. The distance between the two places is about 50 kilometres as the crow flies or a forty minute or thereabouts drive. Palmerston lies mid way between the two locations. The issue of transport to and from contact hand overs has become a central issue in the case. In particular, the use by the mother of a car, which the parties had acquired during their relationship and which the father was paying off through a personal loan with Esanda, has reached almost talismanic importance in the conflict between them.
It is the father’s position that the mother was consistently late in arriving with D for contact and when D was delivered to him, he was often dirty, hungry, tired, in poor health or otherwise showing signs of injury or neglect. The father says the mother was often abusive or provocative towards him, escalating the already tense situation between the parties, with adverse consequences for D. He portrays the mother’s behaviour at contact hand over as irrational and belligerent. As a result, he says that D consistently indicates to him that he does not wish to be returned to his mother’s care, following contact periods.
It is the mother’s position that contact hand overs have worked reasonably well to date, although she alleges that the father has been late in arriving from time to time and has been verbally abusive and aggressive towards her. It was at her instigation that the Rapid Creek Child Care Centre was used as a hand over point from June of 2002, in an attempt to reduce conflict between the parties. She denies that there is anything untoward about her care of D.
The father has applied on two occasions for a departure from the administrative assessment of child support that he is liable to pay for D. Between the 2nd of October 2001 and the 30th of April 2002, he was assessed to pay no child support. The reason for this departure was that the review officer concerned accepted that Mr P was experiencing severe financial difficulties and for that reason he was granted a period of six months to enable him to address his financial situation.
Thereafter, the father sought a further departure on the basis that he was making payments to the mother, which had the effect of benefiting D, which were not reflected in the current assessment. That assessment was that he pay child support in respect of D at a weekly rate of $133.00, based on an annual income of $29,503.00.
On the 30th of May, 2002, the relevant senior case officer accepted the father’s application for departure on the basis that he was paying $167.70 per fortnight in respect of the motor vehicle that was being driven by the mother. The father was paying this sum to Esanda and it was accepted that it was a benefit that D was indirectly receiving. Accordingly, once again the child support assessment was reduced to nil.
On 20 December, 2002, the father retook possession of the motor vehicle concerned and voluntarily surrendered it to Esanda. He took this action without any prior reference to the mother. Neither he nor the mother have taken any steps to reinstate the relevant administrative assessment of child support in respect of D. The circumstances surrounding the father’s resumption of possession of this motor vehicle will be examined in greater detail further on in these reasons for judgment.
The evidence
Both the father and the mother were represented by counsel at the hearing before me, which took place in Darwin on the 29th and 30th of January, 2003. The child representative appeared on his own behalf. As directed, each party filed an affidavit of their evidence in chief and each was cross-examined by counsel for the other party and by the child representative.
The father relied on the following affidavits filed on his behalf:
i)Two affidavits of himself filed on 14th of June 2002 and 29th of January 2003;
ii)An affidavit of his friend, Anthony Gurr filed the 19th of June 2002.
The mother relied on the following affidavits filed on her behalf:
i)Two affidavits of herself filed on the 31st of January 2002 and the 20th of June 2002.
The child representative did not rely on any evidence specifically called by him. The writer of the Family Report, Mrs Loadman was required to attend Court for cross-examination by the parties and was cross-examined by counsel for each of them and the child representative.
In these reasons for judgment, findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses. In what follows, statements of fact constitute findings of fact.
The father was a blunt and plain speaking witness. He cannot be accused of lacking candour in his evidence. Indeed, at times, he gave evidence that was against his best interests. He is convinced that he is the better parent for D and can see no good at all in the mother. As a result, he is convinced of the righteousness of his cause and is incapable of compromise. His evidence was a litany of complaints about the mother. He has methodically recorded every interaction that he has had with the mother since the orders of October of 2001 and has noted them accordingly. A weekend has not gone by without some form of complaint.
It was in his candid descriptions of the mother and the obvious and vehement display of his dislike for her that he did his case some harm and caused me to question whether he would be capable of maintaining D’s relationship with his mother, in the event that there was a change of residence.
The father is obviously deeply attached to his home at Berry Springs. When I asked him some questions about his block and about what D did there, his demeanour softened. He described D as his “real mate” and described him as a “very happy, very bubbly, very busy, very loving” little boy, who was “at peace” when he was with him at the block. I gained the impression that the father was a somewhat isolated person, who did not put great store on social interaction but preferred a quiet, rural lifestyle. I am not critical of him for this and I accept that D enjoys his time at his father’s. Similarly, I have no doubt that the father is devoted to D and loves him very much.
The father is proud of his achievement in maintaining his home. He is somewhat regimented in his care of D and believes strongly in continuity and regularity of arrangements for D’s care. He has no plans to leave his present address and believes that it will be of great benefit for D, as he matures, for him to have the same home. By implication, he is critical of the fact that there is some uncertainty about the mother’s plans and that she continues to live in a caravan park. He is a person who firmly believes in a set time for children’s meals, bed times and other activities. I perceived him to be somewhat regimented in his parenting style. I mean no criticism of him in the use of this term but rather wish to express that the father puts great store on organisation and discipline.
The father and the mother have markedly different personalities and as a result very different styles of parenting. The mother describes herself as having a more “laidback” and relaxed style of parenting. However, she asserts that she has an underlying routine for her care of D that can be made flexible, according to D’s needs. The parties have very different views and interpretations of what the mother describes as her “relaxed style of parenting”. When I asked the father whether he thought that he and the mother were “chalk and cheese” in respect of their parenting styles, he replied that he would say the she was a “slovenly” parent. At a later stage, he described her as “nasty and vindictive”. He did however, to his great credit, concede that D loves his mother and, in the past, he had seen her playing and interacting positively with D. This was the limit of positive things that he had to say about her.
The mother was much more tempered in her criticism of the father than he was of her. She wished me to have the impression of her that she was willing to work with the father in the parenting of D. She was at pains to indicate that things were not as bad between her and the father, as he would have it. She described the father as being “conscientious and loving”. She said, without any appearance of being dismissive of the father’s efforts, that he had “tried very hard” to be a good father for D. She conceded that D was well bonded to his father and enjoyed and looked forward to all his periods of contact with his father. Her position is that she would consider a shared care arrangement for D but did not believe that it was practicable given the state of the relationship between the parties.
I found the mother to be a thoughtful and generally honest witness. In particular, the depth of her emotional commitment to her children was obvious, when she was questioned about them by counsel for the father. I do not accept that she can be described as a selfish or neglectful mother by reason of her decision to leave her daughters behind in the care of their father. I accept that this was a painful decision that she made in the belief that it was the best one for all concerned at the time. The mother is very much caught between her love for D on the one hand and her love for her daughters in Adelaide on the other. She clearly wishes to spend more time with her children in Adelaide but is unwilling to compromise her relationship with D.
In regards to this issue in particular and her plans for the future in general, I formed the opinion that the mother at times tailored her evidence to provide the answers that she thought I wanted to hear. However, I have no reason to doubt the strength and sincerity of her love for D. However, I believe the mother still harbours considerable resentment towards the father, particularly in regards to what occurred following the parties’ separation and the issue of the recovery order in respect of D. Although, she wishes to portray herself as the more reasonable of the two parents, I believe that she too feels strongly hostile towards the father. For that reason, I believe that she has acted in ways that she knows are calculated to provoke and antagonise the father.
So, although the parties are both loving and devoted towards D, the state of their relationship with one another is parlous. This is as a result of both their actions and their mutual antipathy for one another. A situation that is unlikely to resolve in the foreseeable future and which also has the potential to cause emotional harm to D as he grows older. In effect, neither party is blameless in respect of the current disastrous state of their relationship.
Each of the parties evidence was coloured to a large degree by their diametrically opposed view of what was likely to be in D’s long term best interests and each of their evidence, but particularly the father’s, was distorted by their profound detestation of the other.
a) The circumstances surrounding the mother’s departure for South Australia in July of 2001
I do not doubt that the mother left Darwin with D in July of 2001, without first having clearly discussed the matter with the father. In particular, I do not accept that it was her intention to go for a holiday with D and then return. In this sense, she acted unilaterally and without regard for the father’s feelings and D’s entitlement to maintain his relationship with the father. Although I accept that at the time, her relationship with the father had become untenable from her point of view, this provides an explanation but not the justification for what she did.
Once the recovery order was executed and D was conveyed by the father from Adelaide to Darwin, the mother immediately returned to Darwin. In the circumstances, the father was entitled to apply for a recovery order. But understandably from the mother’s point of view, this caused a deeper rift in the already strained relationship between the parties. In my view, the father did not behave particularly sensitively to either the mother’s concerns or D’s needs, once the recovery order was executed. Upon her return to Darwin, the mother was understandably distraught and wished to see D. She arrived at the former family home and at the childcare centre where D was placed during the day. The father’s response to this was to apply for a Domestic Violence Order and an order pursuant to the Northern Territory Trespass Act restraining her from attending at his home.
During the six weeks or so that D was in his care, the father continued to work and as a result D was placed in childcare for up to ten hours each day between Monday and Friday. The father continued to be mistrustful of the mother and was not willing to consider her as an alternative source of care for D. His actions in this period heightened tensions between the parties. However, on 3 October, 2001, following mediation, the father agreed that it was appropriate that D return to the care of the mother on a full time basis. I do not doubt that at this time the father would have preferred to retain the responsibility for providing D’s residence.
The father has a strong belief in the benefits for D of him residing in the home at B S in which he spent his first years. However, the fact that the father did concede the residence of D at this stage, strongly undercuts his assertion that at this stage he held grave concerns for the mother’s ability to adequately care for D. His behaviour in continuing to work after the recovery order was issued and then his decision to return D to the care of the mother, strongly indicates that at that time at least, he was under some financial pressure, which compelled him to keep working. This was also the basis of his first application for a departure from the child support assessment. The father has a strong commitment to maintaining his ownership of the B S property at all costs.
In my view, the actions of both parties – the mother’s action in unilaterally removing D from the former family home and the father’s action in obtaining a recovery order and then restricting the mother’s contact to D – have contributed to a marked degree to the hostile relationship between the parties that has existed ever since. Both parties believe that they were justified in doing what they did and neither can excuse the other for their actions. As a result, ever since, both parties have attempted to provoke the other and neither has been without blame in respect of the difficulties that have arisen between them. To this extent, both of the parties have put their own needs before those of D.
b) Events at hand over from October 2001 onwards
Neither party is in a position to call evidence independent of their own that the other has behaved inappropriately at hand over. My assessment is that both have, from time to time, behaved badly at hand overs. The father portrays the mother as being irrational and incapable of being civil to him. He describes her as being a person who “cannot be spoken to”. I think the mother knows full well, to use a colloquialism, “how to push the father’s buttons”. The father concedes that when he is abused by the mother, he is capable of “giving it back”. Such behaviour on both their parts is not appropriate, particularly if it takes place in the presence of D. It does neither of them any credit.
However, it seems of late that there has been some cooling of the tensions between the parties. Mrs Loadman contacted the Rapid Creek Child Care Centre and was told by the director of the centre that no problems had been observed by centre staff at hand overs there. In particular, centre staff had not noticed that D was distressed when dropped off or picked up by either of his parents. More recently, following the removal of the car from the mother by the father, change over has been taking place at the mother’s home at the KOA Caravan Park. Both parties report that this has gone smoothly. D moves from his mother’s home to his father’s car and the parties remain at a distance from one another and do not exchange any conversation. These are positive indications.
c) The father’s criticisms of the mother’s standard of physical care of D
As I have found, the mother was not without blame for the disastrous state of relations between the parties that existed following separation and after the consent orders were made on the 3rd of October, 2001. Both actively and tacitly, she went to some lengths to provoke the father, particularly at contact hand overs. In such an atmosphere, it is not surprising that the father’s suspicions of the mother and his doubts regarding her ability to properly care for D should grow.
The parties have very different views as to what is the appropriate way to care for a child of D’s age. In many ways, the father could be described as having a traditional view of parenting. Clearly, given the antipathy that has existed between the parties since their separation, he is in no position to give direct evidence as to the conditions prevailing in the mother’s home since her resumption of the care of D in October of 2001. Prior to this time, his concerns centred around his belief that the mother did not have a proper routine for D by means of which, he would be fed and put to bed at specific times. The father is somewhat methodical in his ways and was critical of the mother for leaving his tools untidily around the garden and for not putting D’s toys away. Certainly, the mother does not seem to have conformed to the father’s standards in respect of domestic duties and this resulted in his description of her as being “slatternly”. He complained that the yard looked like “a bomb hit it”; that there was baby powder lying around and that meat had not been thawed for his evening meal. He also complained that the mother regarded the outside area and in particularly the garden as more important than inside domestic duties. However, he did concede that the mother did clean the house and had cooked meals.
I do not believe that the mother would knowingly allow D to play with dangerous equipment or to have easy access to dangerous substances such as bleach, as the father alleges. Rather, I think that his criticisms of the mother, during the time the parties were living together, result more from the different views as to how a parent should behave, rather than actual potential for D to suffer harm. The mother is more permissive and less structured in her parenting style than the father. Certainly, as I have already indicated, the strength of the father’s concerns are seriously undercut by his consensual decision to return D to the care of his mother in October of 2001.
Thereafter, his concerns arise as a result of suspicion and mistrust. It seems to me that any untoward symptom exhibited by D has been malignly interpreted by the father as having arisen as a result of the mother’s neglect. He is not able to call independent evidence to support his assertion that the mother’s care of D has been neglectful. He has asserted that D has been dirty, inappropriately dressed, tired looking and ravenously hungry when delivered to him for contact. Given his obvious hostility for the mother, I take these allegations with a pinch of salt, particularly as they are not corroborated by any independent third party.
In particular, Mrs Loadman found no evidence that D had been the victim of any physical abuse or was showing any signs of not being loved and so being the subject of emotional neglect. On balance, I do not believe that the evidence is sufficient for me to conclude that the mother has consistently physically and emotionally abused D. I reach this conclusion on the basis that no other independent professional person, including Mrs Loadman has given evidence to me to support the father’s position. In particular, the childcare workers at the Rapid Creek Day Care Centre have not been called to give any evidence regarding D. I would expect that, given the fact that D has attended regularly each week at the daycare centre, they would have noted some signs of physical abuse or emotional neglect.
d) The father’s allegation of medical neglect regarding D’s tropical ear infection in December 2002
In support of his allegation that D has been the subject of neglect by the mother, the father particularly relies on an incident that occurred after Christmas, last year. On the 28th of December 2002, D was apparently unwell with a temperature and ear infection. The father is critical of the mother in that she failed to take him to a doctor at that time. The father collected D for contact on the 2nd of January 2003. As a result of his concerns about D, the father took him to a doctor, who diagnosed him as suffering from a “severe tropical ear infection and middle ear infection”. D was prescribed antibiotics. It is the father’s position that this is a clear example of neglect of D by the mother. He asserts that it was incumbent upon the mother to take D to a doctor on or around the 28th of December 2002.
In support of his contention, the father has not produced any medical records or evidence from the doctor who treated D in January of 2003. In those circumstances, I do not believe the evidence is sufficient for me to draw the conclusions that the father wishes me to draw.
e) The circumstances surrounding the father’s repossession of the car being driven by the mother
The connection between the car in question and child support payable by the father by the mother is clear. I have no doubt that the father was well aware of the connection, particularly since it was the basis on which he applied for a departure from an administrative assessment of child support. Accordingly, in my view it is disingenuous for the father to say as follows in his affidavit material[3]:
“On the 20th of December 2002, I took possession of the car the mother drives. The mother has not made any of the payments on the vehicle since separation and as the finance is in my name the onus of discharging the debt has fallen to myself. I am unable to continue to meet the repayments as my work has dropped off.”
[3] Father’s affidavit filed the 24th of January 2003 paragraphs 37 - 39
In cross-examination, the father acknowledged that he had in the past attempted to retrieve the car from the mother. He was able to obtain the car on the 20th of December 2002, because he came upon it by chance parked outside the hotel in Darwin where the mother was working at the time. It is clear to me that he took the car without any thought of the consequences for either the mother or D. At best this was an ill considered and impolite act that was done without thought. At worst it was a calculated act designed to inflame his already troubled relationship with the mother and impose on her an arrangement where D could only be collected and returned for contact at the mother’s home by him. The father acknowledged that he had not been directly paying any child support to the mother. Certainly, the father seems to have given no thought as to the consequences of his action for D. As a result of not having access to a car, the mother was compelled to give up her part time work at the Carlton Hotel, as she could not afford to take taxis after her late shift.
In my view, the action does the father no credit. It confirms my view that to a large extent, the father has an implacable dislike of the mother that is in part motivated by resentment arising from financial matters. D was present when his father and Mr G resumed control of the car.
I am satisfied that this has not had any adverse consequences for D and that he would not have understood the implications of what had occurred. However, once again, the father seems to have given no thought as to the consequences of his actions for D. In my view, it is hypocritical of the father to complain about the mother’s lax attitude towards financial matters and then for him to take the car, which he had agreed was to be provided by him to the mother in lieu of child support. Given the mother’s circumstances, the provision of a car to her was an important thing in terms of her support of D. It gave her some measure of independence.
I am prepared to accept that the father’s actions in respect of the car were done without thought for their wider implications. But the action does confirm my belief that the father has little regard for the mother either as a parent or a person. This does not augur well for his ability in future to foster a relationship between D and his mother, in the event that there is a change of residence in the future.
f) The parties’ future plans
In my view, there is a degree of uncertainty about the future plans of both parties in respect of the care of D in the event that there is a change of arrangements for his care.
The father is clearly attached to his property at R Road, B S. To a large extent, he regards it as D’s birthright. The property is subject to a mortgage. The father is required to pay $250.00 per week in order to service the mortgage. This is a significant sum. The father’s financial difficulties were the reason he gave for repossessing the car that the mother had as recently as December last year.
At the present time, the father is working full time as a welder from about 7.30am to between 3.30 and 4.30pm, every Monday to Friday. His work drops off in the wet season. He has worked full time, apart from seasonal down turns, from the time of the consent orders in October of 2001. It is his position, that if granted the full time residence of D, he would tie in his work to fit in with D’s commitments. He also indicated that, if necessary, he would give up work entirely to look after D.
The mother does not accept this evidence. It is her position that through financial necessity, the father will be compelled to continue work and as a result D will spend long periods of time in childcare.
I accept that to a certain extent, the father will be able to tailor his work commitments to fit in with D’s preschool and in time school commitments. However, I doubt that the father would willingly give up work and risk losing his home. I think the reality is that the father will continue to work full time, even in the event that D comes to live with him. As a result, I believe that the father will be reliant on before and after school care in order to assist him with D’s care. This was the situation when the father had the full time care of D between August and October of 2001, following the execution of the recovery order.
Since October of 2001, the mother has had some limited part time work. I accept her evidence that this work has taken place during times when D has been with his father. In the main, the mother has been dependant on social security payments, in order to support herself and D. These social security payments were augmented by the provision to her of a car by the father. Accordingly, her financial position has not been a robust one since she returned to Darwin in August of 2001.
I accept her evidence that she was unable to continue to pay the rent on the unit in Palmerston that she rented on her return to Darwin in August of 2001. She has been living in a rented caravan at the KOA Caravan Park for the past twelve months. The caravan has a solid annex and its own toilet and shower. D has his own bedroom and area within the caravan. The rent is $155.00 per week and the mother’s major expense is $80.00 for food each week for herself and D.
The father is critical of the mother’s living arrangements and views them as being impermanent. He is concerned that the mother plans to travel with D to Adelaide, to be closer to her other three children.
I accept that, to a very large extent, the mother is torn between her love for D and his need to remain in close contact with the father on the one hand and, on the other, her natural desire to spend more time with her daughters in South Australia. It is only natural that the mother would want to see more of her children in Adelaide. I accept that the mother would like to go and live in Adelaide. But that is not the same thing as saying that she plans to go and live in Adelaide. At the present time that is not an option for the mother and her evidence to me is that she accepts this situation. Living in a caravan park may give the sense of impermanence but the evidence indicates that the mother has been living stably at her address for the past twelve months. D has friends in the caravan park. I accept that the mother is living at the caravan park because of financial necessity, rather than because she wants to leave Darwin as quickly as possible. In this regard, I also note that the parties lived together in a caravan park for about three years prior to D’s birth.
In her evidence, the mother has indicated that she plans to eventually rent a property in the Rapid Creek area, in which she and D will live. She would like to train to become a teacher’s aide in future. Her plans in these regards are unformed and it seems to me that she has given no real thought to them. They are each ambitions rather than plans.
The parties are unable to agree with one another in respect of something as fundamental as which pre school D will attend in future. The father would like D to attend pre school at B C, near to where he lives. The mother would like D to attend the Essington School, where he would have access to Montesori education. Once again the dispute between the parties is in part motivated by finances. There seems no real possibility that the parties will be able to agree on a preschool and then primary school for D, if fees are involved. The Essington School is a school which charges fees. In any event to a large extent, the issue of which preschool D will attend is dependent upon the result of these proceedings.
I have little doubt that if the father is successful in his application that D will live at B S for many years to come and will attend schools close by. The mother’s future proposals in respect of her accommodation are somewhat nebulous. She wishes to move from the KOA Caravan Park but other than saying she would like to rent in Rapid Creek has no firm plans. She has not placed her name on the list of people waiting housing with the Northern Territory Housing Commission. Her plans for future employment are uncertain.
Accordingly, the father can offer D stability in terms of his accommodation and financial support, although this will involve the use of childcare. The mother can offer D continuity of care but there is uncertainty as to precisely where she will live. It is likely that she will be in receipt of social security and child support payments as her main source of financial support for D for some time to come. However, of most importance in this matter, I accept that the mother has no plans to move from Darwin for the foreseeable future. This may be a source of some personal regret for her, but I accept that she sees this as being an inevitable consequence of her current lot in life.
g) The family report
The family report in this matter was prepared by Marjorie Loadman. Mrs Loadman is a social worker and a Family Court counsellor. I was much assisted by her report which was rooted in common sense and was sympathetic towards both of the parties.
In her report, Mrs Loadman indicated that D appeared to be comfortable in the company of both his parents and as a result she believed that he had developed a healthy attachment to them both. She was also of the view that D was loved and valued by both his parents. She was clear in her evidence that both of the parties had much to offer D and both were good parents. In particular, she did not accept the father’s criticisms of the mother as a bad parent and categorically stated that “J is a good mother”.
Mrs Loadman indicated in her report that the mother had a preference to move back to Adelaide. However, in cross-examination, she confirmed my view that the mother accepted that going to Adelaide was not an option that was open to her at the present time.
Mrs Loadman could see that the father had much to offer D. She was of the view that Mr P could offer a very stable environment for D and that there was a secure and trusting relationship between father and son. This caused her to indicate in her report[4] that the mother could not provide D with “the same level of stability he has now in his father’s care”. When questioned about what she meant by the term “stability”, Mrs Loadman indicated that she was largely referring to accommodation issues pertaining to the mother. Mrs Loadman was also concerned about the mother’s obvious distress at being absent from her daughters in Adelaide.
[4] Family Report paragraph 44
She characterised D from her observations of him, as being slightly less secure in his attachment to his mother than his father. She observed him to be far more demanding and attention seeking of his mother than of his father. However, it was her view, that this might be a reflection of the different parenting styles of the parties concerned, rather than as a result of anything more fundamental.
She characterised Mr P as having a more rigid style of parenting and Ms McB having a more laid back style. She observed that both parenting styles had strengths and weaknesses. As a result of her concerns regarding the lack of stability of Ms McB’s accommodation and the obvious sense of loss that she had at being away from her daughters in Adelaide, Mrs Loadman believed that Mr P could offer D “the continuity and stability of a stable home life”. I gleaned from this that Mrs Loadman leaned slightly in favour of the father having residence of D. However, her ultimate recommendation was for shared care. Mrs Loadman was of the view that D would be able to make the necessary adjustment from being principally in his mother’s care to that of his father. However, Mrs Loadman did not note anything of concern in the mother’s ability to care for D. To the contrary she believed her to be a competent and loving parent.
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:
ii)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
iii)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
iv)parents share duties and responsibilities concerning the care, welfare and development of their children; and
v)parents should agree about the future parenting of their children.
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 commonsense and practical way, in order to ensure that the final orders that are made result in a situation that will serve D’s best interests.
It is implicit in the father’s position that he wishes to discharge the consent orders of the 3rd of October, 2001. As a general rule, the Court will not readily reopen parenting orders previously made unless there is good reason to do so.
The leading authority in the matter is in Rice and Asplund (1979) FLC 90-725 where at 78,905 Evatt CJ said as follows:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (1996) FLC 90-140 at page 75,680). These are not necessarily matter for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”
The mother did not raise the question of whether or not there had been a sufficient change of circumstances for the Court to entertain the father’s application, which was made only two months after the original consent orders were made. However, in my view, it is appropriate that I have regard to the fact that the parties in this matter reached a consensual agreement in respect of D’s care, which was approved by the Court in the consent order of the 3rd of October 2001. In my view, it is important that I consider whether there have been any significant changes in circumstance that warrant a change to those earlier orders. In this case, the fact that the mother has had the care of D pursuant to orders of the Court since October of 2001 is a matter of some importance.
Section 68F(2) factors – determining the best interests of the child
a) The child’s wishes
D is currently three years and eight months old. There is no evidence of what his wishes are and in any event, given his age, even if he had expressed a wish, he would not be capable of understanding the implication of what was involved in giving effect to that wish. Accordingly, this is not a relevant consideration in this case.
b) The nature of the relationship between the child, his parents and other significant people
I accept that D has a good relationship with both his parents. This was the clear import of Mrs Loadman’s report. In particular, D has a strong attachment to both his parents.
D’s relationship with his half siblings in Adelaide is tenuous. They have visited Darwin on only one previous occasion and the mother has been unable to visit Adelaide regularly for financial reasons. Accordingly, the relationship between D and his half siblings is not a strong one, although I accept that D is aware of his sisters in Adelaide and that they keep in touch with him through telephone calls and letters. Given the antipathy between the parties at the present time, it seems likely that the mother is the parent who is best placed to foster the relationship between D and his half sisters.
The mother has a sister who lives at Howard Springs. Accordingly, D has a number of cousins who live in the Darwin area. Due to the conflict between the parties, the mother’s sister has sided with Ms McB, whereas her husband has sided with Mr P. Accordingly, at the present time, because of the conflict, D is not having any contact with his cousins in Howard Springs. I do not think that this is greatly significant in the overall scheme of things.
In this case, D has a significant relationship with both his parents. Without doubt they are the most significant people in his life to date and it can be anticipated that this will continue to be the case for the foreseeable future. Whatever orders are made, D will continue to spend significant periods of time with both his parents. Any orders that are made in this matter must recognise this fact and give effect to the principles and objects of the Family Law Act as set out in section 60B.
c) The likely effect of any change in the child’s circumstances
Neither party envisages removing D from the area of Darwin. Accordingly, both parties recognise that D should continue to spend considerable periods of time with the other parent. Were it not for the considerable tension between the parties and the differences in their parenting styles and ethos, consideration may well have been given to a shared parenting arrangement. However, in the circumstances of this case, although it was the outcome recommended by Mrs Loadman, it is not possible.
Accordingly, neither of the parties’ proposal envisages any great change for D in the sense that he will continue to move between his parents on a regular basis and spend time with each of them.
Because of the significant periods of time D has spent in the care of his father in the past and the closeness of his bond to him, Mrs Loadman was of the view that D would be able to accommodate any change arising from moving from his mother’s care to his father’s. In particular, she did not think that D would grieve for the loss of his relationship with his mother.
However, there can be no doubt that prior to the parties’ separation, the mother was D’s principal care provider, whilst the father was engaged in full time work. This has continued to be the position from October of 2001 until the present time, the vast majority of the time that has passed since the parties separated. In my view, it is important that I bear in mind that it is not generally advisable to revisit agreed arrangements for the care of children, unless there has been a significant change of circumstances. In this case, I do not believe that there have been significant changes in the parties’ circumstances, other than the hostility between them has deepened and become more entrenched.
Although Mrs Loadman believes that D would accommodate such a change, nonetheless to move from the sole care of his mother to that of his father, would be a significant change, although D would not be entering an environment which is foreign to him. Nonetheless, he would have to accommodate a different parenting style. In addition, I believe that the father would inevitably have to have recourse to some degree of before and after school care for D. I accept that such care arrangements would benefit D in the sense that he would have the opportunity to interact with children of his own age and develop social skills from them. However, these are still changes of some significance, to which D would have to adapt.
d) The practical difficulties associated with contact
For the foreseeable future both parties will continue to live in Darwin. Without doubt the father will continue to live in B Sin the rural outskirts of Darwin. Most likely, the mother will continue to live in the northern suburbs of Darwin, approximately 50 kilometres away.
I appreciate that the distance and time spent travelling between the parties’ respective homes for contact, has been a source of some friction between them. However, in my view, the practical difficulty of contact is not insurmountable. Certainly with goodwill on the part of both parties and some cooperation, contact should proceed smoothly.
The past orders envisaged several periods of contact each week between D and his father. When the orders were made in October of 2001, D was about two and a half years of age. Given his age and his level of development at the time, it was thought advisable that there be frequent periods of contact between the father and D, in order to maintain and develop the attachment between them. I now have no doubt, given Mrs Loadman’s report, that D’s attachment to his father is now well established. Accordingly, it is open to the Court to consider less frequent periods of contact, of greater duration. This certainly is the view advocated by Mr Story, in the position he has adopted. Such a proposal would reduce the number of interactions between the parties and reduce the scope for friction between them.
To the credit of both parties, the arrangement that has come about since the mother lost the use of the car, whereby the father comes to her home to collect and return D for contact, seems to be working reasonably well and both parties are satisfied with it.
e) The capacity of each of the parents to meet the child’s needs
I am satisfied that both parents can provide for D’s needs. I do not believe that there is any grounds for the father’s criticisms of the mother in this regard. I am satisfied that D is a much loved and cherished child by both his parents. Certainly, there is no evidence to indicate that D has been the victim of any emotional neglect.
I accept Mrs Loadman’s assessment that she would have been able to detect such emotional abuse. It seems that D is a happy, if somewhat shy child.
D is about to commence preschool. This will be an important milestone in his development. At this stage, the parties are unable to agree as to which preschool D should attend. The mother would prefer him to attend the Essington School, which is apparently founded on the Montesori principles. The father would prefer D to attend a more conventional and non-fee paying school. I am satisfied that both parties will ensure that D is given the opportunity to develop his full intellectual capacities, although they may have different preferences in this regard.
f) The child’s maturity, sex, background and other characteristics
D does not have any particular attributes that make this sub section particularly relevant.
g) The need to protect the child concerned from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
It is a central aspect of the father’s case that the mother has exposed D to physical harm. In particular, he relies on the incident surrounding D’s tropical ear infection in the new year period. I do not accept that the mother would either willing or negligently expose D to harm. I do not believe that she is a negligent mother in regards to medical treatment and in fact the evidence indicates that she has taken D to medical treatment in the past. I do not know sufficient about the circumstances surrounding this particular infection to draw any conclusions from it. However, there is nothing to indicate that the mother would wilfully deny D appropriate medical treatment in future.
The father is a devoted parent and there is nothing to indicate that he would actively expose D to any direct physical or psychological harm. However, there is no doubt that the tension between the parties following their separation, has the capacity to cause D emotional harm in future.
h) The attitude to the child and the responsibility of parenthood
I am satisfied that both parties have a positive attitude towards D and the responsibilities of parenthood generally. One of the responsibilities of parenthood is to encourage and foster a positive relationship between the child concerned and the other parent. As I have found, both parties have a feeling of profound antipathy for the other.
I believe that it is more pronounced in the case of the father than the mother. He has little regard for her as a person, let alone a parent.
It is the mother’s position that in these circumstances, he is unlikely to foster a strong relationship between her and D, in the event that there is a change of residence. The mother is much more positive about D and his relationship with his father. She, at least, is able to speak in positive terms of the relationship between D and his father. This is a matter of some significance.
The mother points to the circumstances surrounding the father’s repossession of the car as evidence of his disregard for the mother generally and for her role as D’s primary carer. Part of the responsibility of being a parent is providing financial support for the child concerned. In resuming control of the car, the father showed a disregard for D’s financial support and, indeed for the needs of both the mother and D for transport. I accept that he repossessed the car without a great deal of thought for the consequences. However, with even the most cursory consideration, he would have realised that he was causing great inconvenience to the mother and so for D. In addition, he has given no thought to his obligations to provide financial support for D.
Although the mother is not without fault, I believe that on balance, she is more likely to be supportive of the father’s role in D’s life than he of her role.
i) Family violence involving a child or a member of the child’s family
During the course of her evidence, the mother alleged that the father had been violent towards her in the past. This included her being struck in the face. The father did not deny that he had in the past slapped her. He also indicated that he had “copped a wallop in the mouth” from the mother. He also said that the mother had been “picky”, “niggly” and “irritating”. I suspect that during their relationship the parties were mutually abusive and provocative of one another, particularly when alcohol was involved. I suspect that the mother knows how to provoke the father. That is not to condone the way in which he has responded from time to time to this provocation.
Since the parties separated, there have been several incidents at contact hand overs, when the parties have exchanged insults with one another. D must inevitably have been exposed to this behaviour. None of this does any credit to either of the parties. It is potentially detrimental to D.
However, further incidents of violence are unlikely to continue, if the parties remain apart from one another and clear arrangements are made in respect of hand over. The current arrangement whereby the father collects and returns D from his mother’s residence and the mother remains inside while D walks out to his father’s car, seems the best option to reduce the possibility of further unpleasant incidents between them to the minimum.
In the context of the competing applications of the parties, the previous history of violence between them, does not justify a change of residence.
j) Any family violence order that applies to the child or a member of the child’s family
The father took out a Family Violence Order and Trespass Notice against the mother following the execution of the recovery order in respect of D in August of 2001. At that time feelings were running high between the parties. I am uncertain whether these orders are still in force. However, given more recent events between the parties, neither of these orders seems to be of particular relevance in the circumstances of this case.
k) Whether it would be preferable to make the orders which would be least likely to lead to the institution of further proceedings in relation to the child
Parenting orders are never final in the sense that children’s and their parent’s circumstances change. As a result, arrangements need to be altered as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking further 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.
In this particular case, the parties reached an agreement in respect of arrangements for D’s care in October of 2001. This agreement was formalised in a consent order of the Court. It seems to me that the father never accepted this order, although he consented to it. As a result, only a matter of weeks after this order was made, he commenced proceedings to change the orders.
In my view, it is important that D feel a sense of continuity in respect of arrangements for his care. The father, in his evidence, indicated that he did not want D to feel that he was a “tennis ball” moving backwards and forwards between his parents.
Since the orders of the 3rd of October 2001 were made, there has been little change in the circumstances of either of the parties. The father has continued to reside at his home in Berry Springs. The mother has resided in the northern suburbs of Darwin with D. It is likely, whatever orders are made in these proceedings, that the level of tension between the parties will remain high. In those circumstances, there remains the possibility that there will be further proceedings in this matter. Whatever the result, one of the parties will have difficulty accepting the result. The father did not accept the order to which he consented in October of 2001. The mother is unlikely to see that any change to the situation that has existed since October of 2001 is warranted. In these circumstances, it is hard to see what order is least likely to lead to the institution of further proceedings, other than one that minimises the possible interactions between the parties and the areas for dispute between them.
Conclusions
This is a difficult and finely balanced case. Both parents have much to offer D and both are devoted and capable parents. In such circumstances there would need to be strong reasons to change the long standing arrangement, whereby D has lived with his mother. A period now of some fourteen months. Prior to the parties’ separation, I am satisfied that the mother provided the bulk of D’s care, whilst the father was the breadwinner. D is settled in the care of his mother. She has no proposals to leave Darwin, although her plans for accommodation and future employment for herself within Darwin are uncertain.
I have reached the view that D’s best interests will be served by him remaining predominantly in the care of his mother. In my view, there exists no compelling reasons, relevant to D’s best interests, to change the state of affairs that has existed since the consent orders were made between the parties in October of 2001.
In many ways, the proposals of the father for his care for D, which would necessarily involve him changing his work habits, are untested. I do not accept that the father would willingly give up his work. In a finely balanced case, the fact that the father is largely untested as the principal provider of care for D is a significant matter. As I have found there is no basis on which to found the father’s criticisms of the mother as a parent. On the contrary, I believe that she is a capable parent who has much to offer D. This certainly was the view of Mrs Loadman. In addition, I believe that of the two parties, the mother has a more positive attitude to the responsibilities of parenthood and certainly is likely to be more encouraging of D’s relationship with his father, than the father is likely to be of D’s relationship with her.
In some ways, these proceedings were necessitated by difficulties that arose between the parties as a result of hand over arrangements.
I believe that both of the parties share some culpability for these difficulties. In those circumstances, I believe that the position as advocated by the child representative that the father should have frequent periods of long weekend contact with D, is an appropriate one. It will maintain the already strong attachment between D and his father. In the present circumstances of the parties, the father having mid week contact to D, does not seem to be a practical one.
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 one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Brown FM
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