R and K - [2001] FMCAfam 157

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & K [2001] FMCAfam 157

CHILDREN – Contact.

Applicant:

P R R

Respondent:

A M K

File No:

ZP2426 of 2001

Delivered on:

3 September 2001

Delivered at:

Parramatta

Hearing Date:

3 September 2001

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Ms Wulf solicitor of Lamrocks Solicitors DX8009 Penrith

Counsel for the Respondent:

Mr Sansom of Counsel appeared on behalf of the respondent

Solicitors for the Respondent:

Champion Legal, DX8220 Parramatta

ORDERS

The child, W R R K, born 11 March 1999, is to reside with the respondent mother.
The parties shall be jointly responsible for making decisions relating to the long term care, welfare and development of the said child.
The mother is to be solely responsible for making decisions relating to the day-to-day care, welfare and development of the said child except when the child is in the care of the father who shall then be responsible for making such decisions when the child is in his care.
Until the child commences school the father is to have contact with the said child as follows: (a) each alternate Monday and Tuesday from 9 am on the Monday to 3 pm on the Tuesday commencing on Monday 17 September 2001 and each alternate Monday and Tuesday thereafter, (b) from 9 am to 3 pm on each alternate Sunday commencing on Sunday 9 September 2001, (c) for a period not less than four hours on the following days (i) the child’s birthday, (ii) Easter Sunday, (iii) the father’s birthday, (iv) Christmas Day, (d) from 9 am to 3 pm on Fathers Day and (e) at such other times as the parties shall agree.
Once the child commences attending school the father shall have contact with the said child as follows:
a)each alternate weekend during school term time from 9 am on the Saturday to 5 pm on the Sunday except when the Monday following the weekend is a public holiday in which case the contact shall conclude at 5 pm on the Monday,
b)for the first week of each of the autumn, winter and spring school holidays commencing at 9 am on the Saturday after school term concludes and concluding at 5 pm on the middle Sunday of the school holiday period,
c)for two weeks during the January school holidays commencing at 9 am on the first Saturday in January,
d)from 5 pm on Christmas Eve to 5 pm on Christmas Day on each year ending in an even number,
e)from 5 pm on Christmas Day to 5 pm on Boxing Day on each year ending in an odd number,
f)for a period of not less than four hours on
i)the child’s birthday
ii)Easter Sunday and
iii)the father’s birthday
g)from 9am to 3 pm on Father’s Day when that day does not fall on a day when the father would normally exercise contact and
h)at such other times as the parties shall agree.
The father shall not be entitled to exercise contact with the said child on Mother’s Day or the mother’s birthday.
Should the father not be able to exercise contact on any occasion he shall forthwith notify the mother.
For the purposes of exercising contact the father shall collect the child from the mother’s residence at the commencement of contact and return the child to the mother’s residence at the conclusion of contact.
Neither party is to criticise, abuse or denigrate the other party in the presence or hearing of the child.
Neither party shall remove the said child from the State of New South Wales without the consent of the other or the leave of the court.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA

ZP.2426 of 2001

P R R

Applicant

And

A M K

Respondent

REASONS FOR JUDGMENT

The matter before the court today is an application by the father for fairly substantial contact with the child of his relationship with the mother, a little girl called W who was born on 11 March 1999. W is coming up to 2½ years of age. The parties themselves are quite young. The father is 23. The mother now is 21. The parties separated earlier this year and for a while there was not much contact being exercised by the father until July when the father’s solicitor on his evidence was instrumental in arranging some contact on a Sunday. This was from 9 am to 3 pm on Sunday, 15 July. Further Sunday contact took place on 22nd, 29 July, 5th and 19 August all from 9 am to 3 pm.
There is some dispute between the parties as to the amount of time that the father has spent caring for the child overnight or to the number of occasions. This is perhaps not of great relevance as overnight contact is not in issue between the parties. The father certainly seeks it and the mother, whilst her contact proposals are quite different from that of the father, is not opposed to that contact. The father seeks that he should have contact with W essentially overnight, every week from Monday to Tuesday, building up to Monday to Wednesday midday. He also seeks short periods of contact on special occasions such as W’s birthday, Christmas Day, Easter Sunday, his own birthday and Father’s Day.
The mother’s view is that yes, there should be overnight contact on a regular basis. She suggests alternate weeks. She suggests it should be fortnightly and she believes that it should be on a weekend. She provides other alternatives which are not dissimilar to that which the father suggests and suggests some block periods of contact during school holidays once W commences school. The father says that he’d been seeing W on a weekly basis before, why shouldn’t he see her on a weekly basis ever since. Ms Wulf for the father points out that with children as young as W, frequent contact is very important to help build up a relationship.
The mother does not deny the importance of contact between father and daughter. Certainly the contact proposals which she puts have been described by Mr Sansom of counsel for the mother as quite generous. Why the arrangement for Mondays and Tuesdays? The reason is that the father works shiftwork in his employment and he sought time off, or he sought not to be rostered on specific shifts during the week so that there can be overnight contact. He says that his employers are reluctant to do so on the weekends which are the busier times but have certainly pointed out that Mondays and Tuesdays are the quietest times of the week, times when he could be more easily spared. At the moment the mother has W going to day care on three days a week: Monday, Tuesday and Thursday. She is commencing a TAFE course in sign English and she is somewhat unsure at this stage, not having received a timetable as to when that course would be. It was put to her but she said that she didn’t know that the course was going to be conducted with the College of Technical and Further Education Monday and Tuesday nights.
The mother’s reluctance relating to the Monday and Tuesday contact stems partly from the fact that day care is not available due to a demand whenever one likes. She’s been lucky to get three days of daycare a week, Monday, Tuesday and the Thursday. She gets some assistance for that. If she doesn’t use the Monday and Tuesdays on days when the child is enrolled she still has to pay for them because there is a demand for places. Though it was put to her in cross-examination, she agreed that if the child weren’t enrolled on that day then obviously she wouldn’t have to pay. It was put to her that the child W could still go to child care on a Thursday or on another day if a vacancy arose. There is no evidence at this stage of any vacancy arising and I cannot give that a great deal of weight.
The mother also has concerns that attending a daycare is of value to the child as it allows her to build up her socialisation skills, play with other children and would be less isolated. It builds a confident, more outgoing child which is of assistance when going to preschool at the age of three which is what the mother would wish and in due course when going to school. The mother is 21, likes spending time with her friends. She is still a young woman. It’s not unreasonable that she would want to spend some time on the weekends being able to attend social activities without having a small child in tow. Having a child at the age when she has had a child has certainly placed some restrictions on her life at her still young age.
Another issue of course is the assistance that the father might be able to get from his own mother who may at some stage in the future be moving down south to Bega or that arrangement may not happen. The father has concerns about the need to maximise his income by working on weekends so that he could – of course he gets paid at a much higher rate and he has a mortgage to pay off. The paying of the mortgage is a matter of some considerable significance to him, not just financial significance due to the circumstances in which he acquired his interest in the home.
Those then are the fact situation. I look at the principles the court must apply. There are principles set out in section 60B of the Family Law Act including ensuring the children receive adequate and proper parenting to help them achieve their full potential, to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The principles underlying these objects are that except when it is or would be contrary to a child’s best interest 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. 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. Parents share duties and responsibility concerning the care, welfare and development of their children and parents should agree about the future parenting of their children. If they did this court would have less cases, but that’s the principle the court should follow.
Section 65E makes it quite clear that a court in deciding on a parenting order must regard the best interests of the child as the paramount consideration. There are a number of matters set out in section 68F(2) of the Act which courts must consider when determining what is in the child’s best interest. Here is a child who is just on two and a half. Clearly she lives with the mother and it is not in issue that she should continue to do so. There is evidence that she has a bond with the father and there is no evidence that there are any serious criticisms of the father’s ability to care for her. Clearly I must look at the likely effect of any changes in her circumstances. A change of contact arrangement should be approached in a conservative manner. There is clearly a need for a regular arrangement and I propose to take all those things into consideration.
As the Full Court of the Family Court of Australia said in B v B Family Law Reform Act 1995, 1997 FLC 92-755, ultimately it’s a question of applying in a common sense way the individual sections of the Act so as to achieve the best interests of the children or a child in a particular case. The father has not had as much contact with W in recent months as he did before the separation. There is certainly a need for graduated contact but as I said there is no issue over the fact that overnight contact is something the father could and should exercise.
I am of the view that there is some benefit before the child is attending school in there being some overnight contact on a Monday and a Tuesday being times when the father can take some time off work, although I am of a view that every Monday and Tuesday is probably more than would be appropriate at this stage. Against this I am of the view that frequent contact is of benefit to a young child. The father through the good offices of his solicitor has been exercising contact of late on a Sunday. In fact perusing the material which has been subpoenaed it is clear that he has had contact from 9 am to 3 pm on Sundays including Sundays such as 15 July and 5 August when he has in fact had to work. He worked five and a quarter hours on

15 July and six and a half hours on 6 August. He wasn’t required to work on 22 July when he had contact. Apparently he wasn’t contacted on 12 August when he was at work for six and a half hours.
There is certainly some ability in the father to have some time on a weekend, more so on a Sunday than a Saturday it would appear, with his child and it is also a fact that a mother, even though she is not in full-time employment, should be able to have some time on a weekend to herself so that she can engage in recreational activities with those of her friends who are working in the work force full-time and are not available during the week.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: