Re Warren (a child - residence and contact)
[2002] FMCAfam 414
•30 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Re WARREN (a child – residence and contact) | [2002] FMCAfam 414 |
| FAMILY LAW – Children – residence and contact – one male child living with parents under a shared care arrangement – whether that arrangement should continue. |
| Applicant Father: | P |
| Respondent Mother: | T |
| File No: | NCM2028 of 2002 |
| Delivered on: | 30 September 2002 |
| Delivered at: | Newcastle |
| Hearing Date: | 30 September 2002 |
| Judgment of: | FM Driver |
REPRESENTATION
| Counsel for the Applicant: | Mr R Wilkinson |
| Solicitors for the Applicant: | Boyd Wooi Olsen Lawyers |
| Solicitors for the Respondent: | Mr R Powe Rod Powe Lawyers |
THE COURT ORDERS
THAT WARREN, born 6 December 1998 (“the child”), live with the mother until he commences school.
THAT the father have contact with the child on an alternating weekly basis during school terms:
(a)during “week one” from 12.00pm on Saturday until 5.00pm on Tuesday, commencing 19 October 2002;
(b)during “week two” from 10.00am on Sunday until 5.00pm on Tuesday.
THAT the father have contact with the child during the Gazetted New South Wales school holidays except for the Christmas school holidays:
(a)for the first half of the holidays in odd numbered years;
(b)the second half of the holidays in even numbered years;
THAT the father have contact with the child:
(a)from 3.00pm on Christmas Day until 3.00pm on New Year’s Day in even numbered years;
(b)from 5.00pm on the last day of school until 3.00pm on Christmas Day in odd numbered years;
(c)between 8 January and 22 January in every year.
THAT contact be suspended on Mother’s Day between 9.00am and 5.00pm.
THAT the father have contact with the child at such other times and at such other places as the parties might agree from time to time.
THAT contact changeover is to occur as the parties agree, but in the absence of agreement, inside the McDonald’s Family Restaurant at Rutherford.
THAT both parties are to have telephone contact with the child at all reasonable times when the child is not in their care.
THAT when the child commences school, the child is to live with the father at those times when the father was exercising contact pursuant to orders 2-4, and live with the mother at all other times.
THAT each party be and is hereby restrained from denigrating the other in the presence of the child or knowingly permitting any other person to do so.
THAT each party provide such consents and authorities to allow the provision to the other party of any medical report or reports in relation to the child as required by the medical practitioner or practitioners.
THAT each party provide such requisite consents and/or authorities required by the school of the child to enable each party to receive report or reports, school photographs or any other notice or notices relating to the child and to permit both parents to attend the school of the child for the purpose of attending special events involving the child and/or to speak to the teachers of the child concerning the school performance of the child.
THAT each party provide such requisite consents and authorities to permit the other to attend the school of the child at all reasonable times subject to the direction of the principal of the subject school.
THAT each party be and is hereby required to use all reasonable endeavours to ensure the child maintains his social, educational and sporting commitments during each period the child is with that party.
THAT each party is to telephone the other as soon as practicable upon the happening of any of the following:
(a)the child becoming seriously ill;
(b)the child becoming hospitalised; or
(c)the child being involved in an accident.
THAT both parties keep the other informed of a telephone contact number at all times and where there is any change of such number the party whose service is changed is to notify the other as soon as reasonably practicable and not later than 48 hours of the change of telephone number.
THAT each party have the responsibility for the day to day care, welfare and development of the child during such period or periods the said child is with that party.
THAT the parties have joint responsibility for decisions concerning the long term care, welfare and development of the child.
THAT neither party is to smoke indoors or in a motor vehicle in the presence of the child and either party is to remove the child from the presence of any other person smoking indoors.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM2028 of 2002
| P |
Applicant Father
And
| T |
Respondent Mother
REASONS FOR JUDGMENT
(Revised from transcript)
This is an ex tempore judgment relating to an amended application for parenting orders, in particular, residence and contact orders, made by the father on 15 February 2002. The application relates to a child, Warren (not his real name), born on 6 December 1998. The father seeks orders for residence in his favour. Although the application as filed sought a residence order, in effect forthwith, the way the matter has been presented today, the father seeks residence only from the time Warren reaches school age.
The father's application is opposed by the child's mother who, in her own amended application, sought orders for residence in her favour with defined contact between the child and the father. Today the mother also limited that application to the period after Warren commences school.
I dealt with the matter on an interim basis on 28 February 2002. At that time I made interim orders for alternating weekly contact between the child and the father with additional contact at particular times. The matter was heard today with a view towards making final parenting orders.
The parties rely on the following documents detailed in a list of documents filed in court today:
·the mother's amended application;
·the father's amended application;
·affidavit by the father;
·affidavit by the father’s partner
·three affidavits by the mother;
·two affidavits from mother’s husband;
·two affidavits from the maternal grandmother;
·affidavit from the maternal grandfather;
·family report by Ms R King.
The maternal grandfather has not been subject to cross-examination and accordingly I would attach less weight to his affidavit. The other deponents were cross-examined.
Relevant law
I set out the relevant principles in the case of B v L [2001] FMCA 84.
I am dealing with parenting orders arising under Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The overriding principles of that provision is the best interests of the child is the paramount consideration. Subject to that, s.60B of the Act sets out the objects of Part VII and the principles that underlie those objects.
In deciding the arrangements which will best promote the interests of the particular child in these proceedings, I have regard to the various matters set out in s.68F(2) of the Act. That is not a closed list, but it is a list of issues that I must have regard to to the extent relevant.
The child's wishes and relationships
The child’s wishes is not an issue in these proceedings given the child's age. I have not been told of any wishes expressed by him. Next is the nature of the child's relationships. The affidavit evidence presented by the parties is critical of the other party. Nevertheless, the evidence does establish that the child has had an extensive and good relationship with both of his parents, at least since February this year.
The father had initially a limited amount to do with the child, given that he had separated from the mother prior to the child's birth, although had continued a relationship to some degree, at least until 1999. The father has progressively increased his relationship with the child. The last seven months have been the greatest extended time the father has spent with the child since his birth.
The family report tells us that the relationship between the child and his parents is good, that the child appears to have a good relationship with the father's partner, but that he has apparently little to do with the mother's partner.
In addition, both parents have at least their mother in the locality.
I have heard from the maternal grandmother. It is apparent that she sees the child on a regular basis, although she is not a principal carer of the child.
The likely effects of any change in the child's circumstances
Notwithstanding their previous positions concerning residence and contact, the parties have reached basic agreement on the continuation of the present arrangements until Warren reaches school age. It is unclear when that will be, given that Warren suffers from a disability which might delay when he starts school.
The present arrangement which is effectively a shared care arrangement, appears to have been working satisfactorily. The parties contend for dramatically different arrangements when Warren commences school. They seek orders that when Warren commences school, he should live with them with defined and rather more limited contact with the other parent. That would be a significant change when Warren reaches school age. It would be more convenient when Warren commences school for him to spend his time with one parent or the other. However, there are no insuperable difficulties to my mind with a continuation of the shared care arrangements at that stage, taking into account the successful operation of the interim orders and the proximity of the parties to one another.
Practical difficulties and expense associated with contact
This is not a strong consideration in this matter given that the parties live relatively close to each other.
The capacity of the parents to meet the child's needs
This has been the subject of probably most contention in these proceedings. The parties have, in the affidavit evidence, offered fairly trenchant criticisms of the parenting abilities of the other. It may be that these parents may not win any awards for parenting skills, but they are not bad parents. In my view, the criticisms advanced by each against the other have been exaggerated. The mother was presented by the father as a person who was very messy as a housekeeper. While there is evidence that the house has been untidy at times, I am not persuaded that the state of the home presents any risk to Warren.
The mother has the support of her own mother and, it seems, also her father. She is married to Mr T and he does not presently live with her. This has placed a greater load on the mother. It is uncertain whether the relationship between the mother and Mr T will be resumed in the near future, or at all.
The father has been presented as uncaring and neglectful, leaving it essentially to the mother to make necessary arrangements for Warren. I accept that the mother has carried the major load in dealing with Warren’s special needs. Nevertheless, the father has had contact with Warren every second week since February. I have been presented with nothing that would persuade me that the father had been an inadequate parent during those times. In addition, the father is assisted by his relationship with his partner, who is supportive in the care of Warren.
I find that both parents have the capacity to meet both the physical and emotional needs of Warren.
The child's maturity, sex, background and other characteristics
Warren is a three year old boy who suffers from disabilities. I accept that he has been diagnosed as an asthmatic, but more importantly, he has developed mental disabilities that require special care. He is, in particular, a slow learner in terms of speech ability. He may catch up over time, but he is likely to need special care and attention. It is likely that his parents will have to make arrangements, at least in the short term, for some special education for him.
The need to protect the child from physical and psychological harm caused by abuse, ill treatment, violence and other behaviour
I have been presented with evidence of alleged acts of violence, in particular, by the father against the mother, but also by the mother against the father. Those allegations have been denied on each side.
I think it likely that there is some historical truth in both sets of allegations. I think it likely that both parties have had violent disagreements which, on occasion, has probably caused them to lay a hand on each other and they should not have. Those incidents are in the past and there do not appear to have been any incidents recently.
More importantly, there is no evidence of any acts of violence by either parent against Warren. I am satisfied that Warren would not be exposed to any unacceptable risk of physical or psychological harm in the home of either parent.
Attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents
I am satisfied that the mother is a caring and a loving mother. She is also a person who has, to date, taken on the greater part of the load of caring for Warren in terms of his special needs.
The father has presented in relatively recent times as a person who wishes to have an increased role in the life of his son. In interim proceedings, I accepted that that was a sincere and honest desire that should be accommodated in Warren’s interests. The interim orders that have been made are, as I have noted, apparently working successfully.
I have no reason to believe that the present regime will not continue to work successfully.
While the father presented as somewhat vague in the witness box concerning the special needs of Warren, I am satisfied that he genuinely cares for his son and that he is a good, caring parent.
Any family violence involving the children or a member of the child's family and family violence orders
There are currently apprehended violence orders protecting the mother. I do accept that there have been incidents of concern between these parties previously. There was a particular incident on 2 January 2002 when the father attended the mother's home very late in the evening to collect the child. In my view, the father's actions on that occasion showed, at least, poor judgment. I believe that he may have learnt from that experience and there has not been a repeat of an incident of that nature since.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children
Both parties seek final orders. The parties have been able to reach substantial agreement which indicates that there is a good prospect that the further intervention of the Court would not be required.
The orders sought by the parties diverge at the time Warren reaches school age. I think it likely that if I were to make orders sought by either of the parties in relation to the period after that time, it is likely that those orders would be sought to be changed. I think it more likely that there would be no further proceedings if the status quo is maintained.
As I have noted, the present shared care arrangement appears to be working, notwithstanding these are parents who have had a lot of animosity to each other in fairly recent times. This indicates to me that, notwithstanding their past animosity and some continuing ill feelings, both of them have Warren’s best interests at heart and both have shown an ability to deal with each other properly to ensure that Warren has extensive contact with both of his parents. Both parents have the support of relatives who are able to assist in meeting Warren’s needs.
In my view, the best interests of this child will be served if the present arrangement is made permanent, with minor modifications. He has special needs, due to his disabilities, which will continue into his school years. He will benefit from the maximum involvement of both of his parents in his ongoing care.
I will make orders 4, 5, 6, 7, 8, 9, 10 and 11 sought by the mother, in annexure B to her most recent affidavit.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 24 January 2003
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