R and B - [2004] FMCAfam 543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & B

[2004] FMCAfam 543

FAMILY LAW – CHILDREN – Contact – best interests – variation of contact- change of circumstances since orders made – children aged 7 and 5 years – arrangements for travel.

CHILDREN – Name of child – variation of orders – passport – issue of passport to children.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)
Passports Act 1938 (Cth), s.7A

R & B [2003] FMCAfam 321

Applicant:

A J R

Respondent:

P S B

File No:

PAM 3659 of 2002

Delivered on:

17 September 2004

Delivered at:

Hearing date:

14 September 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Solomon

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Mr Burke

Solicitors for the Respondent:

Christopher M. Edwards

ORDERS

Orders 1, 2, 3 and 5 made on 7 August 2003 are discharged.
The Applicant father is to have contact with the children A P B born
5 April 1997 and T A R also known as T A R B born
18 April 1999 as follows:
(a)for five (5) days in the Spring school holiday period at times to be arranged between the parties but in default of agreement during the week commencing on Monday 27 September 2004;
(b)for the first half of the Autumn, and Winter school holiday periods in 2005 and each alternate year thereafter, commencing at 12 noon on the first Monday of the holiday period and concluding at 3.00 p.m. on the second Monday;
(c)for the second half of the Autumn, Winter school holiday periods in 2006 and each alternate year thereafter, commencing at 12 noon on the second Monday and concluding at 3.00 p.m. on the Sunday before school resumes;
(d)for the Spring school holiday period in each year commencing at 12 noon on the first Monday of the school holiday period and concluding at 3.00 p.m. on the Sunday before school resumes;
(e)from 12 noon on Boxing Day to 3.00 p.m. on 30 December in each year commencing on 26 December 2004;
(f)on Fathers’ Day in each year from 9.00 a.m. to 7.00 p.m.;
(g)on ANZAC Day in each year from 9.00 a.m. to 7.00 p.m.;
(h)by telephone between the hours of 7.00 p.m. and 7.30 p.m. on three occasions each week, on each of the children’s birthdays, on the father’s birthday and on Fathers’ Day in each year; and
(i)at such other times, if any, as the parties may agree.
For the purpose of exercising school holiday contact as provided by Orders 2(a) to (e), the contact changeover point will be the McDonalds Family Restaurant at L.
For the purpose of exercising contact as set out in Orders 2(f) and (g), the father must collect the children from the car park of the Bunnings hardware store on the corner of N R Road and C Street N P at the commencement of contact and return the children to the mother or a responsible adult nominated by the mother at that same place PROVIDED THAT the mother may permit the father to return the children to her residence should she consider it necessary or otherwise appropriate.
The father must provide the mother with a contact telephone number of any place where the children will be staying overnight during any contact period and the mother may telephone the children on that number on at least one occasion during that contact period.
The father must ensure that either he or a responsible adult supervises the children during any period of contact.
The father is restrained from entering or attending at the mother’s residence at any time EXCEPT with the mother’s express permission or in the event of a medical or other emergency involving one or other of the children.
Order 4 made on 7 August 2003 is discharged.
The child T A R also known as T A R B born on 18 April 1999 shall henceforth be known as T A R B for all purposes.
Production of a sealed copy of these Orders will be a sufficient authorisation to the Principal of any school attended by the child T A R B to enrol the child at school under that name.
The mother is permitted to take the children A P B born 5 April 1997 and T A R B born 18 April 1999 out of the Commonwealth of Australia for the purpose of a holiday in Canada and the United States of America for a period not exceeding five (5) weeks at any time.
The Australian Passports Office is permitted to issue Australian passports in the names of the said children referred to in Order 11 to the said children pursuant to the provisions of section 7A of the Passports Act 1938 without the consent of the father of the said children.
In the event of the father and the mother agreeing that the children or either of them may travel by air for the purpose of contact then the following provisions will apply:
(a)travel will be by regular scheduled airline service between S and C;
(b)neither child will travel as an unaccompanied passenger until that child has attained the age of ten (10) years;
(c)until each child attains the age of ten (10 years, the child must be accompanied by either the mother or the mother or another responsible adult nominated by the mother;
(d)The father must meet the costs of all airfares.
Each party must keep the other informed of their residential address, landline telephone number and mobile telephone number until each child attains the age of 18 years.
Each party must inform the other of any medical emergency relating to either child as soon as possible.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
P

PAM 3659 of 2004

A J R

Applicant

And

P S B

Respondent

REASONS FOR JUDGMENT

The application before the Court is an application by the father of two children. A was born on 5 April 1997 and T was born on 18 April 1999. The two children live with their mother.
There were proceedings between the parties in the year 2003 as a result of an application brought by the father concerning contact, the names of the children and there are other matters relating to child support which are irrelevant to today's proceedings.
As a result of those proceedings I made orders for the father to have contact with the children on alternate Sundays for a short period of time during the school holidays, which was a time that was to increase from after 1 September this year, for Father's Day, Boxing Day, by telephone and other times agreed by the parties.
I made orders relating to contact changeover at the Bunnings Hardware Store at N R Road and C Street, N P, and at the McDonalds Family Restaurant at L.
I made certain orders relating to the child, T A R, restraining the mother from causing the child to be known by any other name than T A R or T A R-B.
I made an order permitting the mother to take the children out of the Commonwealth of Australia for the purpose of a holiday in Canada and the United States of America. I dismissed the application for a departure from an administrative assessment of child support.
It is certainly well known in Courts exercising jurisdiction under the Family Law Act that contact orders are never final. At the same time however parenting orders generally should be entered into with the intention of there being an end to litigation.
It was indeed a hope, certainly of the Court and of the parties' legal advisers, that the earlier orders handed down on 7 August 2003 would bring some finality to the proceedings between the parties.
The decision in that matter, the citation for that decision is (2003) FMCAfam 321, the matter is known as R v B.
Regrettably, finality in litigation has not been achieved. What has happened is that the father has considered is necessary to bring a fresh application on 7 June 2004 seeking a significant variation to the contact orders.
The mother, for her part, has filed a response in which she too seeks a variation of the orders. Whilst she says that the orders that were made last year should have been sufficient she has said the father has not taken the advantage of them that he should have done, so that for the purpose of school holiday contact he has exercised all of that contact in S only and has not sought to take the children to his home, which is in the country, at B M.
The mother has also sought injunctive orders relating to the father not going within 100 metres of her residence without her permission or unless there is a medical emergency in respect of one of the children.
The purpose of this is that she complains that the father has turned up unannounced and that this has caused some distress to her grandmother with whom she and the children live. That lady is 81 years of age and perhaps not as emotionally robust as a younger adult.
She has also sought orders relating to the name of the child, T, requiring the parties to sign documents to cause his name to be recorded as T A R-B at the child's school and to have him issued with a passport, and an order under s 106A of the Family Law Act for not only a Federal Magistrate, but the Registrar or a Deputy Registrar of the Court to exercise those documents if the father should fail to do so.
I have heard evidence from both parties and it is regrettable there has been a considerable amount of dissension between them, not only as to the interpretation of the orders, but their implementation.
There had been dissension between the parties before and regrettably the degree of cooperation between the parties seems not to have been improved to any significant degree.
Whilst it would be unusual for a Court exercising jurisdiction under the Family Law Act to revisit contact orders, within a year of their having been made after a defended hearing, I am satisfied that the application was appropriate.
It is not only the fact that there has been a continuation of dissension between the parties about the orders and regrettably in my view the dissention appears to have been on both sides, but the father has brought evidence which I accept that his situation has changed.
At the time the earlier orders were made the father was residing at B M where he still resides and carrying on his business. Some of that business took place in country areas but a lot of it took place in the S metropolitan area. As a result it was necessary for him to travel to the S metropolitan area on numerous occasions.
The mother was living at N R, where she still lives, and working at the Children's Hospital at W where she still works. She has organised her work roster so that the latter part of the week, including Saturday, involves her in a considerable amount of work and in fact she does night shifts, shifts of up to 10 hours, in order to earn income to support herself and the children. She has received some amounts of child support.
The father's situation has changed in that he has given evidence which was unchallenged that he no longer finds it necessary, or perhaps even desirable, to travel to S as frequently as he did, even as recently as a year ago.
According to his evidence his work in country areas has increased significantly. His estimate is that now some up to 95 per cent of his work derives from locations, west of the B M. This has meant that his need to travel to S for work purposes has been significantly reduced but his travel to S for contact has continued.
The original orders were made on the basis that the father was travelling to S regularly and frequently. That situation quite clearly no longer applies and in my view that change in circumstances is sufficient to justify revisiting the contact orders.
The circumstances have been that the children, and this is common ground, have not visited the father's residence for contact. The father obviously would like this to happen. He has certainly exercised contact in the S in the metropolitan area and this has proved to be quite successful.
The children had gone to a lot of activities arranged by the father which sound to be pleasant and educational activities, but at the same time the father wants to spend more time with them and wants them to gain some appreciation of his home and that the contact orders made last year, for one reason or another, in his view have not permitted that to happen.
It was the case a year ago that the father was quite estranged from his parents who live in the B M. This fortunately is no longer the case. The father and his parents have reconciled, at least to a considerable extent, and this has meant that during contact arrangements, certainly from time to time, the children have had contact with their paternal grandparents.
This would clearly be seen as a positive step and there is no evidence before me to indicate that this is other than in the best interests of the children.
The father's position however is that it is certainly his intention to remain living in B M, which is a relatively small town in the country, and that he wants the children to spend time with him at his home. It is inconvenient, not only for him, but also for the children for him to travel up and down for short periods of time between S and B M and he has reached the stage where he considers that weekend contact, or contact on a Sunday during the school term, has virtually outlived its usefulness.
His suggestion is that the weekend contact during the school term should be dispensed with and in return the contact during the school holidays should be significantly increased.
The mother's reasons for opposing that, that the children have still not been to the father's residence at B M, about which she appears to take a relatively negative view and that the father has not availed himself of the opportunity. She says the children have expressed negative views about travelling to the father's residence saying they do not want to go.
I would have to indicate that the reasons cited by the mother for the children not wishing to spend time with their father at his home do not seem to me to be particularly strong. Indeed I asked the mother in cross-examination what was wrong with living in the country. She indicated that there was nothing wrong with it. Nevertheless, it is her view that B M is a relatively small town, perhaps not a thriving metropolis like O or B, and that the amount of children friendly things to do is not particularly great.
Mr Burke, who appeared for the mother, submitted that the children were in fact city kids and removing them to the country would be a bit of a culture shock for them and that they would need some time to adjust.
Certainly B M does not appear to have the same amount of rollerskating tracks or skateboard ramps or other benefits that are available in the City of S, but at the same time I can judicial notice of the fact that B M is situated within the State of New South Wales. It is to the east of C, which I understand to be the geographical centre of the State of New South Wales. It is not as if it is on the shores of L E or at the tip of the C Y P or somewhere in the P.
In short, it is not in the outback. It is country New South Wales and there are country towns of some size not too distant from it.
It is apparent that the children seem to have some fear of the unknown if they have not been to the father's residence at least for as long as they can remember. They may be somewhat apprehensive about it. This apprehension would not be assisted by the mother's apparently negative view of B M.
The reality is that children in Australia have to be conscious of what Australia is all about. Not every child can live in a metropolis such as S or Melbourne. Australia is a large country, the largest island in the world. Much of Australia consists of rural areas. Many children live in the country and do so healthily and happily. It is possible to be educated in the country, to receive medical treatment and to survive.
It is important for a child's understanding of his or her country to understand that there is more to Australia than the large cities on the East Coast, that there are vast open spaces, there is bush, there are animals, there is agriculture. Children must learn about their own country and it is important for children to have an idea of the environment in which the father lives. If children do not see with their own eyes where the non residence parent lives, they then develop unreal ideas and can become concerned about the welfare of the other parent.
A leading American psychiatrist, Dr Judith Wallerstein, has conducted research into children of separated parents and as long ago as 1981 provided information to Australian family lawyers about the need for children to have an understanding of where the other parent lives.
She described one of many examples of children from the S F area being concerned about the fact that the father had gone to live in O, which is another urban area on the east coast of the United States within the State of California. The child had no idea of what O was like and it formed all sorts of fears about the welfare of the father and the environment in which the father lived. The best way of resolving the child's fears of course was to see where the father did live and satisfy the children or the children concerned that the father did have somewhere to sleep, did have somewhere to eat, was able to buy food, able to have shelter.
Young children, and these are still young children, they are now 7 and 5, need to have an understanding of their father's environment. It appears to me that for them to have an understanding of their father's environment they are going to need to spend more time with their father, sufficient for them to travel to their father's home and to spend some time with their father. This can only be brought about by a lengthier period of block contact.
The mother has concerns about block contact in other ways. Her understanding of her responsibilities as a parent is clearly shown by the fact that she has organised her work like to take into account her need to not only support the children but to act as their primary carer. She is a nurse by profession, and as I said earlier, she has arranged her rosters so that she does a lot of work, lengthy night shifts towards the end of the week, so she does a lot of her work in a relatively short period of time. Because she does so many night shifts this would no doubt be tiring to her.
It would not be the easiest way to run her life but she has adjusted her work in that way so that she can, as she says it, make the most of her time to care for the children. It is difficult to criticise a parent for acting in that way.
In addition, from time to time she gets offered extra shifts, often at nights. Sometimes she does not get a great deal of notice of those extra shifts. She indicated that technically she was required to be given at least two hours notice but sometimes that is not possible and she gets an offer of an extra shift at quite short notice. Where possible, she takes those shifts so that she can earn the extra money to go towards her support and that of the children and she has her grandmother available to provide supervision of the children.
At the same time the school holidays provide time to her to spend time with the children with in what is quality time holiday time. She does this in two ways.
First, she saves up her annual leave so that she takes a large block of it in the month of January. That then allows a holiday for her. During the other school holidays she arranges her roster in such a way that she has what could perhaps be described as a mini break, to use the English expression, of some three to four nights. She does that in such a way so that she does not need to take any leave but fits it in during the down days when she is not rostered on. That way she preserves her leave for a long block during the January school holidays.
For these mini breaks she quite often takes some form of accommodation on the New South Wales C C, often at T E, so she spends a period of time with the children there in a holiday situation.
It is not surprising that because the mother has arranged her life with the children in those ways that she opposes the father's proposal that all of the school holidays should be spent with him.

This issue became quite apparent during the course of the hearing and the father, through his solicitor, indicated that sharing the school holidays was something that he would be prepared to do.
In my view this was a proper concession by the father made after he had heard the evidence and this indication was put by his solicitor, Ms Solomon, during the latter part of the hearing. Such a concession is to his credit, I might add.
I am certainly of the view that the mother takes the position that her arrangements have been arrived at for the best interests of the children but also to suit her with the relatively difficult job of being a single parent.
The father's contact with the children does not to my mind have a particularly high priority as far as the mother is concerned. She acknowledges the fact the children should spend some time with the father but she is relatively inflexible as far as the arrangements are concerned.
To some extent this may be brought about by the ongoing animosity between the parents and this animosity of course is reflected by the fact that this is the second time the matter has been before this Court within a year. The mother may well have reason to be critical of the father and the life he now leads and may well feel aggrieved that her arrangements arrived at with some care and with some skill are being threatened by a change of arrangements proposed by the father.
It is difficult at times for the parties to accept these matters emotionally but there often needs to be a compromise. It is clear that school holiday time is a time that both parents see as important. The mother, because of her work arrangements; the father, because of his work arrangements and his geographical location.
I am of the view that there is a need for the father to have a greater amount of block contact during the holiday period. It would be regrettable for the mother to be obliged to do away with all her school holiday mini breaks, but it does seem to me that the father's concession that those mid year school holidays could be shared, and in fact all the school holidays could be shared, is something that would allow both parties to achieve that aim.
The mother is not in a position where she can take two weeks' worth of school holidays during the winter, spring and autumn school holiday time. She could not do that in one block or in three blocks without sacrificing the leave that she wishes to take in January.
It would appear clear that there must surely be some time during the mid year school holidays that the father can have a significant amount of block contact which would still allow the mother to take a mini break, but also allow the children to spend enough time with their father, that they could spend time with him at his home at B M. The father could take on the responsibility of overnight contact, feeding the children, bathing the children, taking them on outings, looking after their welfare in the country and showing them a side of Australia that they appear not to have seen a great deal of.
The mother organises her leave and needs to do so in advance so that she has January school holiday time, which is a time that the father would want. At the same time the father has expressed concern that over the last Christmas January school holidays he went for a considerable number of weeks over that holiday time without contact with the children at all. He did not see this as conducive to building up a good relationship between himself and the children, and he saw that it was not in the children's best interests and certainly not his best interests.
Whilst the mother may wish to take a block of school holiday contact in January, to take all her annual leave, there is no evidence that the mother's annual leave covers all of the Christmas January school holidays and it would seem that there should be some time available for the father for block contact during that period of time.
The father also wishes to continue to take contact with the children during the year on days such as Father's Day, which he concedes would have to be done in S, and also on the Anzac Day public holiday.
It would seem to me that if the father is prepared to make those trips to S and acknowledges the need for the children to stay in the S area during those times, that it would be a reasonable solution and one in the children's interests for the children to have those times with their father.
I note that Anzac Day falls on 25 April and Father's Day is the first Sunday in September. Those days then are relatively well spaced during the year and do not normally fall in a school holiday period, although at times Anzac Day can, and they would allow some contact during school term when the father is not exercising his school holiday contact. It seems to be a very sensible way of maintaining frequency of contact.
The father wants a fair amount of telephone contact. The mother is certainly suggesting telephone contact on a regular basis, and I had previously made telephone contact orders. My view is that the telephone is an important way for the children to keep in touch with their father. Acknowledging the fact that for most of the time during the school term the father is going to out working in the country and not able to get down to see the children physically.
There are other issues that need to be dealt with, including the place of pick up and return. The father had expressed the view that some contact changeover should be at the mother's residence, whereas the mother is particularly hesitant about the father approaching the residence on a regular basis.
It certainly is the mother's view that one of the changeover places, the car park at Bunnings Hardware Store, which is quite close to her home, should continue. There has also been an order for contact changeover to be at McDonalds at L, and in my view whilst that causes some inconvenience to the mother at times, it is still a good contact changeover place.
The father has also raised the issue of the children, rather than travelling for four hours in a car between N R and B M, their being flown to Canberra and then being driven to B M.
The travelling time to my mind does not seem to be particularly high, although I note that as the father is suggesting the father is offering to bear the burden of the airfares.
The mother was opposed to it because of the age of the children and certainly was opposed to unaccompanied travel by the children. She is of the view that A, in particular, is a very cautious child and would refuse to go, and if A refused to go then T would refuse to go.
The mother was of the view that the only way that A would go would be if the mother initially travelled with her, although the father has suggested that for the first few trips that he would do the travelling. Even then the mother was not convinced that A would be persuaded to step on a plane.
The reality is that A, nervous or not, lives in Australia and lives in Australia in the 21st century. People of my generation travel in aircraft far more frequently than our parents did. Our own children travel frequently by air and in a country such as Australia air travel is a very common method of travel. A, and for that matter T, cannot go through their entire childhood without travelling on an aeroplane, and in due course they will need to get used to the idea of unaccompanied travel.
Bearing in mind the mother's negative attitude towards it, over cautious perhaps, or maybe having a realistic idea of A's concerns it would not seem to me that air travel at this stage is a viable means, but as the children get older certainly it is one way that they can travel for contact.
As far as travelling for four hours in a car is concerned, again this is Australia, people travel long distances in cars. A and T might be city children but children in Australia and adults in Australia travel long distances in cars. They may not be used to it now but they will need to get used to it, and if they are going to go to their father for block contact, as I propose that they will, there will be time for them to get over a four hour car trip.
Provided that the father is sensible it gives the children a break from time to time. There is no evidence that he did not, then they will learn to accustom themselves, travelling for a distance in cars, just as hundreds of thousands of other Australian children do and have done over the years and will continue to do.
The mother however has expressed concerns about the father's supervision of the children and referred to one occasion where the children went to McDonalds under the supervision of an 11 year old child and had to cross a busy road to do so. No danger, or no harm seemed to occur to the children, but the mother was less than impressed about it. The father in his evidence conceded that in hindsight it was not something that he would do again.
The mother seeks orders binding the father to a considerable amount of supervision of the children which is not to my mind as necessary as the orders proposed would seem to be. At the same time the father or a responsible adult, such as one of the father's own parents, should be responsible for supervising the children on contact.
The mother seeks an order that the father should attending a parenting course and that contact should be subject to it. I am not satisfied that the evidence has been led that would show the need for the father to attend a parenting course.
Some parents are better than others. Some parents fail badly and indeed, the Children's Court of New South Wales and other States sees parents whose failure as parents as quite apparent.
In my view the father's deficiencies as a father, whilst perhaps looming large in the mother's eyes, when viewed objectively, do not seem to be of such magnitude that a parenting course would be either necessary or beneficial.
I do not propose to make an order requiring the father to attend a parenting course.
This is not to say that the father can walk away from the Court with accolades as to being the father of the year. Very few parents can.
There are other areas where the mother is critical of the father, perhaps with some more justification. The mother gave evidence a year ago about her wish to go to Canada and Alaska on a grand holiday. I made orders permitting the mother to take the children out of Australia for that period of time. The mother is of the view that the father would still refuse to give his consent to it.
I thought I had made it quite clear in my previous orders that the father's consent was not needed. The Court had given its consent and there was an end to it.
There has been dissension between the parties about the name of the child, T. I made a relatively conservative order on 7 August 2003 in which I injuncted the mother from allowing the child to be known by any other name other than T A R or T A R-B.
The father took exception to the way that the mother described the father as T A R-B on documents at school, in that R, in his view, did not appear as a surname but as a given name, and was not prepared to comply with any requirements of the documentation and he did not believe that it complied with the orders. This was perhaps an overly critical view by the father, in my opinion.
The mother is also concerned that at this stage she does not have passports for the children and obviously wishes to obtain passports for the children where the name "B" appears and has sought orders specifying the father should sign any documentation necessary to allow that to happen.
My view is that I thought that issue had been well and truly resolved on the last occasion and I do not propose to force the father into a situation where he will be required to sign any documents whatsoever, nor do I intend to bring about a situation where the mother will then have to come back to Court to seek the appointment of a Registrar or a Deputy Registrar to sign the documents in the place of the father.
The orders that I make will vary the earlier orders providing that the child will be known as T A R-B for all purposes, and that that production of a sealed copy of the orders will be a sufficient authorisation for the principal of any school attended by the child, to enrol the child at school under that name.
I went to great trouble on the last occasion to specify how the child's name could be, which would incorporate both the father's name and the mother's name, and my view is that the orders that I make now should be sufficient without requiring anyone to do anything else other than produce them.
As far as the issue of the passport is concerned I am making an order pursuant to s.7A of the Passports Act 1938, not only authorising the children, being unmarried minors for the purpose of that Act or that section, to leave the Commonwealth of Australia, but also to have passports issued to them without any further consent necessary.
My view is that if no-one else wants an end to litigation the Federal Magistrates Court does.
Accordingly I make the orders as at the commencement of these Reasons.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 30 September 2004