S and W
[2002] FMCAfam 152
•17 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & W | [2002] FMCAfam 152 |
FAMILY LAW – Contact – best interests of the children – variation of contact – medical condition of child – overnight contact – conduct of the parents – orders.
Family Law Act 1975 ss.60B, 65E, 65K 68F(2).
H and W (1995) FLC 92-598; Joannou and Joannou (1985) FLC 91-642;
R and R Childrens Wishes (2000) FLC 93-000; Bright v Bright and Macley (1995) FLC 92-570; B and B Family Law Reform Act 1995 (1997) FLC 92-755; Jaeger and Jaeger (1994) FLC 92-942; JG and BG (1994) FLC 92-515; Patsalou and Patsalou (1995) FLC 92-580; Blanch v Blanch and Crawford (1999) FLC 92-837; M and M (2000) FLC 93-006.
| Applicant: | R S |
| Respondent: | L G W |
| File No: | PAM2975/2001 |
| Delivered on: | 17 June 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 7 June 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | Hugh Byrne of Hugh Byrne Solicitor DX 8465 Castle Hill |
ORDERS
That all previous parenting Orders made in respect of the children S B S born 15 August 1994 and T B S born 9 June 1999 are discharged.
The said children are to reside with the Respondent mother.
The Applicant and the Respondent are to be responsible in consultation with each other for all decisions relating to the long term care, welfare and development of the said children.
The Applicant and the Respondent shall each be responsible for all decisions relating to the day to day care welfare and development of the said children whilst the said children are in their respective care.
The Applicant father is to have contact with the said children as follows:
each alternate weekend from 4.00 pm on the Friday to 5.30 pm on the Sunday provided that where the Monday immediately following that Sunday is a public holiday then the contact shall conclude at 5.30 pm on the Monday;
for the second half of each of the Autumn, Winter and Spring school holiday periods, commencing at 9.00 am on the middle Saturday of such holiday period and concluding at 5.30 pm on the day before the children are or either of them is required to attend school at the start of the next school term;
for a period of three weeks commencing at 9.00 am on 2nd January each year;
for a period of not less than two hours on the father’s birthday and each of the children’s birthdays if that day falls on a school day or for a period of not less than three hours if that falls on a day when the children are not required to attend school;
from 9.00 am to 5.30 pm on Father’s Day if that day does not fall on a contact weekend;
from 4.00 pm on Christmas Eve to 12 noon on Christmas Day 2002 and each alternate year thereafter;
from 12 noon on Christmas Day to 5.30 pm on Boxing Day 2003 and each alternate year thereafter; and
at such other times as the parties shall agree.
The Applicant father is not entitled to exercise contact with either of the said children between the hours of 9.00 am and 5.30 pm on Mother’s Day in each year.
If the child S is not able to attend on contact with the father due to illness or injury or other proper reason at any time until 9 June 2003 then the Applicant father’s contact with the said child T will conclude at 5.30 pm on each day.
Each party shall notify the other within a reasonable time if either of the said children requires treatment in a hospital for any reason whilst the said child or children is in the care of that party.
For the purpose of exercising contact pursuant to these Orders the father shall collect the child from the mother’s residence at the commencement of each contact period and return them to the mother’s residence at the conclusion of each contact period.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2975 of 2001
| R S |
Applicant
And
| L W |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of two girls to vary certain contact Orders that were made by the Family Court of Australia at Parramatta on 2nd March 2001. The proceedings were transferred to this Court on 27 August 2001.
Background
The father was born on 1st April 1954, which means that he is now 48 years of age. The mother is now 39 years old, having been born on 16th January 1963. The parties commenced to live together in October 1988, and separated ten years later, in October 1998.
There are two children of the relationship, both of whom live with the mother. S B S was born on 15th August 1994, so she is 7 years and 10 months old. T B S was born on 9th June 1999, after the parties separated. She has just turned 3 years of age, and has some health problems, which are at the heart of a lot of the differences between the parties.
The difficulty that has arisen concerns the fact that T suffers from febrile convulsions. She had her first convulsion on 18th August 2000, and has suffered later convulsions over the next two days. T had a further convulsion on 8th April 2001. It appears from the written submissions on behalf of the mother that the child suffered a further febrile convulsion on Monday 3rd June, 2002, which resulted in her urgent hospitalisation. There is no affidavit evidence in support of this contention, but it has not been challenged by the father.
The child has been under the care of Dr A E since August 2000. Dr E is a consultant paediatrician. In a report tendered to the Court in earlier proceedings dated 11th September 2001, Dr E stated that:
“This condition is likely to improve rapidly from now. The incidence of febrile convulsions drops after the age of 2 and by the age of 3 the incidence drops further. She has a good outlook and should be a normal child and should not go on to have epilepsy.”
Dr E went on to give this opinion:
“At this stage I think it would be preferable that the child is under the care of mother at night and the current standing order with regards to T seeing her father each alternate Saturday until she turns 3 and then seeing him for the alternate weekends during the day until she turns 4 would be advisable. After the age of 4 overnight contact with the father should not be a problem. In summary I think it would be best to continue as per the current court orders.”
The matter came before the Court on 13th December 2001, where the father, through his then counsel, took issue with Dr E’s opinion and sought either a consultation with Dr E himself or a second opinion. In the end, he did both, consulting a Dr D. Dr E saw both parents in his rooms on Christmas Eve and then faxed to the court a proforma statement.
The matter came back to court on 9th January 2002. Dr E’s proforma report was admitted into evidence. In that report, he confirmed, inter alia, that he had explained to the father the nature of the disorder, the symptoms of which a parent should be aware, and the manner in which those symptoms should be managed. He also expressed the opinion that he did not believe that the father had at that time (ie 24th December 2001) sufficient knowledge of how to deal with the disorder, but he added the comment that “It is more to do with T’s age and the nature of the convulsions rather than Mr S’s knowledge.”
Dr E gave evidence by telephone on 9th January, and in that evidence he confirmed the statements he made in the proforma report. He did say, however, that it was no longer his opinion that overnight contact should not take place until the child reached the age of 4 years. The mother informed the Court that it was then her position that overnight contact could take place once the child turned 3 years of age. She has now reached that age.
The Court made interim orders, the relevant ones being:
a)the father was to have defined contact with the older child S between 14th and 28th January 2002, except for a two hour period on the mother’s birthday;
b)each alternate weekend from 4.00 pm Friday to 5.30 pm Sunday;
c)half of each school holiday period;
d)at other times as agreed.
The orders in respect of the younger child, T, were a little more complex, due to her age and state of health. Those orders were to this effect:
a)the father was to have contact with the child each alternate Saturday between 8.30 and 5.30 pm until the child attains the age of 3 years;
b)contact for two hours on the child’s birthday;
c)contact, once the child attains the age of 3 years, each alternate weekend, at the same time as the father exercises contact with the older child, S;
d)some specific daytime contact during the January school holidays.
There were other orders made, relating to both girls, of a fairly standard nature, including:
i)that the children should spend Mother’s Day with their mother, and Father’s Day with their father; and
ii)that the children should have two hours contact with the father on his birthday and on each of their birthdays.
Disappointingly, the fact that the child T has now attained the age of 3 years has not produced a resolution of the issues between the parties.
Issues
The father now seeks a variety of orders, some of which have not been previously aired:
(1)that the parties share the responsibility for the children’s long term care welfare and development (this is not in issue);
(2)that the parties share the school holiday periods, alternating between the first and second half each year;
(3)that the parties should alternate their Christmas arrangements;
(4)that he have contact on 4 specific days or evenings for such activities as concerts, on giving 3 weeks notice;
(5)that the parties share all public holidays outside school holiday times;
(6)that the father have contact with the children for 3 hours on his birthday, the children’s birthdays, and on the birthday of their half sister, Kylie, who was born on 12th January 1974;
(7)that the children should reside with him if the mother becomes ill or dies;
(8)that the alternate weekend contact should be extended to 6.00 pm from the current 5.30 pm, and to 7.00 pm during Daylight Saving;
(9)that the mother should contact either himself or the children’s half-sister Kylie in the event of any medical emergency involving either one of the children.
The mother seeks a continuation of the orders in respect of the older child S, and seeks some contact orders to take effect until the child T attains the age of 3 years. The child has now attained the age of
3 years, so these orders are no longer relevant.
The mother also seeks graduated orders for alternate weekend between the father and T, so that for the first two weekend contact periods the child will only spend one night of overnight contact with the father, and that for the July school holiday period, that the child spend a two night period of overnight contact with the father, and then daytime contact only until the end of the holiday contact period. After those graduated periods, the contact should coincide with that which applies to the older child, S.
The mother does not support contact taking place specifically on the children’s birthdays and the parties’ birthdays, but suggests that “the celebration of such events shall be deemed to occur on that contact period nearest to such special occasion.”
The mother seeks orders that the father should both collect the children from the mother at the commencement of contact and return them at the conclusion of each contact period, some specific arrangements for Christmas, and that the parties should notify each other of any medical emergency affecting either one of the children.
Principles to be considered in contact proceedings
When a court exercising jurisdiction under the Family Law Act 1975 is considering making contact orders concerning a child, section 65E of the Act must be followed. This section lays down that the court “must regard the best interests of the child as the paramount consideration.”
Section 60B(2) sets out a number of principles which a court must take into consideration, except when the application of any of them is or would be contrary to the child’s best interests. Sub-section 60B(2)(b) refers to children’s right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Section 68F(2) sets out a number of matters that a court must consider when determining what is in a child’s best interest. There are twelve of them in all, from sub-sections 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered, as the court has done in this matter.
The best interests of the child – application of s.68F(2)
Section 68F(2)(a) requires the court to consider any wishes expressed by the child and any factors, such as the child’s maturity and level of understanding, that may be considered to be relevant to the weight the court should give those expressed wishes. The child’s maturity, as well as the child’s sex and background, are also to be considered under sub-section 68F(2)(f).
The wishes of the child were considered in some detail by the Full Court of the Family Court of Australia in H v W, (1995) FLC 92-598, where Fogarty and Kay JJ held:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. As a matter of practical day-to-day experience the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
In that same case, Baker J held that:
“A child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial judge. Furthermore, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given, particularly if the separate representative submits that the Court should give effect to such wishes. The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in an individual case.” It should be noted that the Full Court has held that the wishes of children as young as eight years down to four years would not be irrelevant (Joannou and Joannou, (1985) FLC 91-642).
The wishes of the children were also considered by the Full Court of the Family Court in R and R: Children’s Wishes, (2000) FLC 93-000, where the Court held that, whilst proper weight should be given to children’s wishes, this did not mean that those wishes should not be departed from. Appropriate and careful consideration must be given to those wishes. They should not be simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from by the trial Judge, good reason should be shown for doing so.
In order to make orders contrary to the children’s wishes, it is not necessary for the Court to determine that those wishes are unsound, founded on improper considerations or influenced by others. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case. There is no evidence in this case about the wishes of the children. In any event, the child T, having just turned three, is too young for any wishes to be given any weight (even if there were any evidence of any wishes).
The Court must consider the nature of the relationship of the child with each of the child’s parents (where applicable) and with other persons.[i] In the case of Bright and Bright v Bright and Mackley, (1995) FLC 92-570, Treyvaud J considered the desirability of a child having contact with grandparents in the light of the welfare of that child being the paramount consideration. His Honour said that:
“It is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.”[ii]
The children have a half-sister, Kylie, who is an adult with young children of her own. There is no evidence to suggest that contact with their half-sister and her children would be other than positive.
Sub-section 68F(2)(c) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect of separation from a parent or any other child, or any other person with whom that child has been living. This consideration is usually more relevant in residence cases than contact applications. It is relevant here that the younger child T has not spent any overnight contact with her father to date, which will need to be treated with some sensitivity. It should be noted, however, that the child’s older sister will usually be present, which should help to reassure her if she becomes anxious.
It is important to consider the practical difficulty and expense of a child having contact with a parent.[iii] This factor is subject to the principle that the best interests of the child remains the paramount consideration (B and B: Family Law Reform Act 1995 (1997) FLC 92-755). The mother, in her written submission, raises the concern that she believes that the father plans to move from Y to a penthouse in the S C C at D H. It is hard to see what relevance this would have, except that, if it were true, than the father would be moving further away from the mother, who gives her address at B R, in the S area. The father would not be permitted to take either of the children into the casino.
The Court must consider the capacity of each parent, where relevant, or other person, to provide for the needs of the child, including emotional and intellectual needs.[iv] This is a relevant issue, due to the fact of T suffering from febrile convulsions, which clearly causes the mother some concern.
The evidence before the court seems to support the opinion of Dr A E, the paediatrician. His evidence, it will be recalled, was that the condition was likely to improve rapidly from September 2001, that the incidence of febrile convulsions drops after the age of 2 and drops further after the age of 3. The evidence before the Court is that the child had 3 attacks in August 2000, when she was 14 months old, one on 8th April 2001, when she was 22 months old, and one on 3rd June 2002, when she was a few days off her 3rd birthday. Those facts support Dr E’s opinion. He did not say that T would never have another febrile convulsion, but that the incidence of such convulsions after she reached the ages of 2 and 3 years, which is exactly what has happened.
Sub-section 68F(2)(f), as I indicated earlier, requires the Court to consider the child’s maturity, sex and background and any other relevant characteristics. S is nearly eight years of age; T has just turned three. The father appears to be aware of relevant health problems, he has had one other daughter (who also, her says, suffered from febrile convulsions when she was little) and wishes to play a positive father role in the children’s lives.
It is important that the Court take into account the need to protect the child from physical or psychological harm, either by being directly subjected or exposed to abuse, ill-treatment, violence or other behaviour, or by seeing or hearing another person being subjected or exposed to such ill-treatment.[v] This sub-section deals with subject matter that is also to be considered under sub-sections 68F(2)(i) and (j).
The attitude to the child, and to the responsibilities of parenthood, displayed by each parent must be taken into account by the Court.[vi] The father wishes to exercise contact on a regular basis with each child and involve those children in the lives of other family members. The mother displays a caution about the health of T, in particular, which appears to be greater than is strictly necessary.
The occurrence of any family violence, and whether or not there is a current family violence order (commonly referred to as an Apprehended Violence Order, or AVO).[vii] The mother’s Outline of Case Document, filed on 13th December 2001, states that “In August 2000 the father threatened mother’s life and the lives of her parents, her then boyfriend and other members of her family”. The document also states that an apprehended violence order was granted against the father in August 2000 “and such Order confirmed by District Court of New South Wales on 9 August 2001 for two (2) years”. A copy of that Order is annexed to the mother’s affidavit sworn on 12th December 2001. It prohibits the father from going within 100 metres of the mother’s residence, or from approaching, contacting or telephoning her except for the purpose of arranging or exercising “access to children.”
The question of domestic violence has been given a greater deal of consideration by courts exercising jurisdiction under the Family Law Act in recent years. In Jaeger and Jaeger, (1994) FLC 92-492, the Full Court of the Family Court held that evidence of the possibility of violence in the household of one of the parties was relevant and admissible in custody proceedings.
This theme was developed by Chisholm J in the Family Court, in JG and BG, (1994) FLC 92-515. His Honour held that:
(a) in proceedings relating to custody, guardianship and access, evidence of family violence is relevant insofar as it assists the Court in determining what orders will best promote the welfare of the children;
(b) the Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children;
(c) so far as the evidence allows, the Court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children;
(d) where the evidence permits the Court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child’s welfare, the Court will make the findings; and
(e) where the Court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the Court to refrain from making the findings. If such a discretion exists, the Court will exercise it on the basis of a consideration of whether the children’s welfare is most likely to be promoted by making or declining to make such findings.
In Patsalou and Patsolou, (1995) FLC 92-580, the Full Court held that the making of derogatory or denigrating remarks by one party to another and the inflicting of physical violence by one party on the other are relevant matters to be taken into account in custody and access cases, and any person who indulges in such behaviour presents a very poor role model and his or her suitability as a custodial parent must be very much in doubt. The approach in both JG and BG and Patsalou was approved by the Full Court in Blanch v Blanch and Crawford (1999) FLC 92-837. The question of a violent and abusive parent being a poor role model and posing the risk that the children might learn from the abusive behaviour and ultimately treat it as acceptable was one issue covered by Mullane J in his most comprehensive judgment in
M v M(2000) FLC 93-006.
In this case, the Court must take note of the fact that there is an apprehended violence order in force until August 2003. I consider that, because of the apparent inability of the parties to arrange even routine contact matters between them, seemingly due in part to the mother’s concerns about the father, that the arrangements for picking up and delivering the children should remain as they are, at least whilst the current apprehended violence order remains in force.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[viii] (or children). In this case, I propose to make final orders that will spell out to the parties exactly what their rights and obligations are, in the hope that future litigation can be avoided.
Any other relevant fact or circumstance that the court thinks is relevant[ix]. There are no other relevant matters.
Conclusions
This case, apart from some comparatively minor matters, has largely centred on the father’s contact with the younger child T, and her specific health problem. I am satisfied from Dr E’s evidence that the time has come, now that T has attained the age of three years, for overnight contact to commence. This contact should coincide with the father’s contact with the elder child, S.
I am mindful of the mother’s concerns about T’s health, and I am also mindful that there has been no overnight contact until now, as the parties separated before T was born. The mother has proposed a very slight program of graduated contact, which would nevertheless cause a great deal of administrative effort, to get T used to overnight contact. If T were an only child, or there had been little contact at all up until now, I would be more mindful of making such orders. As it is, there has been overnight contact with T’s sister S for some time now, and the evidence does not contain any suggestion that this contact is at all problematic. If T were accompanied by S on contact, this would have the effect of minimising any anxiety suffered by the child. I would add the rider that I believe that overnight contact should take place only whilst S is available until T reaches the age of four, by which time any anxiety should be well and truly gone.
School holidays should be shared. As it appears that the parties are unable to negotiate to any significant degree, the holiday time should be strictly defined. In order to avoid upsetting existing arrangements, I consider that the mother should continue to have the children with her during the first half of the school holidays, and that specific arrangements need to be made to share the Christmas period.
The father’s request for four specific days to take the children to entertainments such as contacts, on giving three weeks notice, is fraught with problems. The history of litigation between these parties is so extensive that any such arrangement that relies on a time being nominated by one party to the other would be more likely than not to be unworkable. On several occasions, the court has had to make “one-off” contact orders to cover arrangements where common sense should have dictated the need to be flexible. There is nothing to be gained in building a cause for the parties to come back to court. I decline to make the orders sought.
The father’s request to “share” all public holidays seems to be equally problematic. If a public holiday adjoins a contact weekend, then commonsense dictates that it should be added to the weekend, so that the children could have a long weekend with their father, and I propose to make such an order accordingly.
The father, in his submission, now seeks an order that in the event that the mother dies or becomes ill, the children should reside with him. Whilst section 65K of the Family Law Act contemplates a parenting order being made that provides for what is to happen on the death of a parent, I am not satisfied that I should make such an order at this time. There has been no evidence led on this point, and no chance for the mother to put any submission. The evidence is that the mother is aged 39 years. There is no evidence that she is in other than good health or that she is any more likely to die before the younger child attains the age of 18, in June 2017, than any other woman of her age, place of residence or state of health. Should the mother meet an untimely death or become so incapacitated by an illness that she cannot care for the children over the next fifteen years, than an application may be made to this court.
I am not persuaded that the father has made any case as to why there should be an extra half hour’s contact on a weekend, let alone an hour on top of that during Daylight Saving. There is a complete absence of evidence on that issue, it seems to have been added by the father as he was working on his written submission.
Similarly, the mother’s application that on special occasions like birthdays “no formal arrangements for contact shall be put in place and the celebration of such events shall be deemed to occur on that contact period nearest to such special occasion” is unsupported by any evidence. What the application means, in plain English, is that the father should not exercise any contact on the children’s birthdays or his own, unless the day falls on a day when contact would otherwise take place. The mother submits that it is “disruptive” if a birthday falls on a weekday, although there is no evidence led to that effect. I note, also, that when this matter was last before the court, on 7th June 2002, the father sought contact with the child T on her birthday, which fell on the Sunday. The mother declined, as she had already made arrangements which took in the bulk of the day. Whilst the father’s application was unsuccessful, except for telephone contact, this was due to the lateness of the application rather than to any reason going to the merits of the question. The mother’s attitude did not, and does not, give the court any confidence that she would find birthdays on weekends any less “disruptive.” It is a very common arrangement for parents to have contact with their children on their birthdays, and I consider that it should apply in this case. I am not persuaded, however, that there should be a specific arrangement for contact on the birthday of the children’s adult half-sister, K, as this seems to be rather remote.
It is clear that each parent should notify the other in the event of a medical emergency, and I propose to make orders accordingly.
As I indicated earlier, it is regrettable that the parties could not agree on these issues.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 17 June 2002
[i] Sub-section 68F(2)(b)
[ii] at page 81,658
[iii] Sub-section 68F(2)(d)
[iv] Sub-section 68F(2)(e).
[v] Sub-section 68F(2)(g)
[vi] Sub-section 68F(2)(h)
[vii] Sub-sections 68F(2)(I) and (j)
[viii] Sub-section 68F(2)(k)
[ix] Sub-section 68F(2)(l)
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