S & P-S
[2002] FMCAfam 416
•24 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & P-S | [2002] FMCA fam416 |
| FAMILY LAW – CHILDREN – Contact – best interests of child – friction between parties at contact changeover. Family Law Act 1975, ss.60B, 65E, 58F(2), 68L Harrison & Wollard (1995) 18 Fam LR 788; FLC 92-598 |
| Applicant: | AMNS |
| Respondent: | JAP-S |
| File No: | PAM 630 of 2002 |
| Delivered on: | 24 December 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 30 & 31 October 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Appearance for the Applicant: | In Person |
| Appearance for the Respondent: | In Person |
| Child Representative | Ms Davitt |
ORDERS
All existing parenting orders are discharged.
The child MJNS born 13 August 1996 is to reside with the Respondent mother, who is to be responsible for the day to day care, welfare and development of the said child when he is in her care.
The Applicant father is to be responsible for the day to day care, welfare and development of the child when he is in his care.
The mother and father are to be jointly responsible for the long term care, welfare and development of the child.
The father is to have contact with the child:
(a)from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend during school term time commencing on the first Friday after school term commences in 2003;
(b)for the first half of the Autumn and Winter school holiday periods in each year ending with an odd number commencing at 9.00 am on the first day of the school holiday period and concluding at 2.00 pm on the middle day of the school holiday period;
(c)for the second half of the Autumn and Winter school holiday period in each year ending with an even number commencing at 9.00 am on the middle day of the school holiday period and concluding at 2.00 pm on the last day of the holiday period;
(d)from Saturday 11 January 2003 until 2.00 pm on the last day of the school holiday period and thereafter for one half of each Christmas school holiday period, the first half in 2003/2004 and the second half in 2004/2005 alternating each year thereafter;
(e)on the weekend including Father’s Day from 3.00 pm on the Saturday to 5.00 pm on the Sunday;
(f)on a public holiday adjacent to any weekend the child is in the father’s care, and if the public holiday is a Friday, the contact period will start at the usual time on the Thursday and if it is a Monday it will conclude at the usual time on the Monday;
(g)by telephone each Tuesday between 5.30 pm and 7.00 pm; and
(h)at other times as agreed between the parties.
School holiday contact will be calculated from the day after the last day of school until and including the day immediately before school resumes.
Alternate weekend contact is suspended during school holidays.
The father’s contact is to be suspended from 5.00 pm on the day before Mother’s Day if Mother’s Day should fall on a contact weekend.
For the purpose of contact changeover the father is to collect or cause a family member to collect the child from the mother’s home at the commencement of each contact period and for this purpose he may attend at the front door of the mother’s home but not enter inside the home unless invited to do so by the mother or M R.
For the purpose of contact changeover the mother is to collect or cause a family member to collect the child from the father’s home at the conclusion of each contact period and for this purpose she may attend at the front door of the father’s home but not enter inside the home unless invited to do so by the father or his wife.
The mother is to authorise the Principal of any school attended by the child to provide to the father at his expenses copies of all school reports, bulletins, newsletters and information about school photographs and all other information normally provided to parents of children attending that school.
The mother is to inform the father of any illness or injury affecting the child requiring hospital treatment or any medical specialist appointment.
Each party is to inform the other as soon as reasonably possible of any medical emergency affecting the said child.
Each of the parties is to pay to the Legal Aid Commission of New South Wales within one month of the date of this Order the sum of $750.00 being one half of the costs of the Child Representative.
All documents produced on subpoena may be returned.
The Application is removed form the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 630 of 2002
| AMNS |
Applicant
And
| JAP-S |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of a child named MJNS, who is six years old, to vary earlier contact orders. The father would like contact with his son:
(a)every second weekend;
(b)for one night during the week;
(c)for half of each school holiday period; and
(d)by telephone at least twice a week.
In her Amended Response filed on 30th September 2002, the mother asks for orders in these terms:
(a)that the father have contact with the child, providing that he is present to supervise him during the whole of the contact period:
(i)from 9.00 am Saturday to 5.00 pm Sunday each alternate weekend;
(ii)for five days during each school holiday period;
(iii)from 9.00 am to 5.00 pm on Father’s Day; and
(iv)for two hours on both the child’s birthday and the father’s birthday;
(b)that M should be returned to his mother by 9.00 am on both Mother’s Day and the mother’s birthday;
(c)that the father can have telephone contact with the child on the Saturday of the non-contact weekend;
(d)that the father collect the child at the beginning of contact and return him at the end of each contact period;
(e)that the mother should have sole responsibility for the child’s day to day care, welfare and development.
Background
The father and mother were married on 20th May 1995. There is one child of the marriage, M, who was born on 13th August 1996. They were separated in 1998 and have since divorced. M resides with his mother, and has always done so. The father does not ask for an order that M should live with him.
Both parties have formed new relationships. The father has been residing with S R, who has three sons from her first marriage. Mrs R and her former husband share the care of the three children. At the time of the hearing, the Applicant father and Mrs R were engaged to be married, and the wedding was scheduled to take place within a few days of the hearing.
The mother has formed a relationship with a man named M R, and they have lived together since August 2001. Mr R has two sons from his previous marriage who live with their mother. The Respondent mother and Mr R now have a child of their own, a little boy called C who was born in August 2002.
This Court made interim contact orders on 5th April 2002, but differences arose between the parties about contact issues and the matter was brought back to Court on 21st May 2002. The Court ordered that the child should be legally represented, and Ms Davitt, a solicitor from the Legal Aid Commission of NSW, appeared on 9th July 2002. A Family report was ordered, and the matter was listed for hearing on 30th and 31st October 2002.
Issues
There is a regrettable degree of mistrust and animosity between the parties. The father considers that the mother is unreasonable in her demands that he should be present the entire time when contact is taking place, and that he should do all the travelling for contact pick-up and delivery. The father believes that the mother unreasonably restricts the amount of time that his son spends with him, and does not co-operate in assisting him to build up a new family relationship with Mrs R and her children.
For her part, the mother sees the father as being irresponsible and lacking in care in his supervision of the child. She has fears for the child’s safety when he is in his father’s care, and points to incidents in the past when she considers that the father has not exercised sufficient care for the child’s welfare. The mother also points out that the child has suffered from a sleep disorder since he was little, and the father does not assist with that. The father, for his part, denies that the child suffers from any sleeping difficulties when staying with him.
The mother also feels that the father has failed to spend time with his son, and considers that the father has used previous girlfriends, and now his present wife, as ‘babysitters’ whilst he has done other things. She does not believe that the child should go on contact with the father unless the father is there the whole time.
It is a source of grievance with the mother, and Mr R, that the father has been in arrears as far as the payment of child support is concerned. The mother tendered a letter from the Child Support Registrar dated 29th October 2002, showing that the father was in arrears to the extent of $3,556.44.
The mother and Mr R also complain of incidents that have occurred at contact changeover, when they say that the father has entered the house and acrimonious discussions have taken place. The mother accused S R of walking into her home uninvited on one occasion, also. Contact changeover also brings about a situation which appears to cause the mother a deal of annoyance, in that she and Mr R complain that when M is delivered home after a contact weekend, the R children engage in wrestling on their front lawn.
Evidence
The father gave evidence by affidavit, and was cross-examined by the mother. S R also gave evidence by affidavit, and the mother cross-examined her. There were no other witnesses for the Applicant.
The mother gave and Mr R both gave evidence by affidavit and were also cross-examined. There were no other witnesses.
A Family Report was prepared by L V, a counsellor. Ms V was not required for cross-examination.
The father, in his affidavit evidence, states that he regards M’s safety as his “prime concern” but also considers that he is an active boy who will engage in physical play, which can lead to minor cuts and bruises. He says that he never leaves the child unsupervised and believes that the child has a good relationship with S and her sons. He wants M to be a part of his new family.
In cross-examination, the father said that his work roster made it difficult for him to take the entire weekend off on a regular basis, although he hoped that his employer would be able to give him every second weekend off in the future.
He referred in his evidence to difficulties about telephone contact, saying that he tried not to call after 8.15 pm, knowing that the child is usually asleep by 8.30. He said that, to his knowledge, the child usually went to bed between 7.30 and 8.00 pm.
The father admitted the arrears of child support, saying “It’s under appeal”.
The father admitted the existence of the child’s sleep disorder, saying “He’s definitely had problems with sleeping” but said that he had been surprised at how well the child slept when staying at his house. He agreed that he had refused to let M telephone his mother at bedtime, believing it to be a “stalling tactic”, He said that he told the child that he could ring his mother during the day if he wished.
One area of contention for the father was his wish that M should spend Tuesday nights at his home, saying “”It’s just a long time between weekends”. He suggested that the child could be picked up after school.
The father agreed that contact changeover was not amicable, saying that there was “some tension there”. He expressed the opinion that “I’m sure he (M) is conscious of those times.” He suggested that contact travel should be shared and that he would prefer to collect the child whilst the mother could collect him at the conclusion of contact – “A lot of the problems come at the drop-offs”.
S R R was the father’s fiancee at the time (and about to become his wife). In her affidavit, she says that she has worked in child care centres and sets out her qualifications in that area. She deposes that she has worked on a casual basis in a kindergarten for the past five years. Mrs R[1] also refers to the fact that she and her former husband “share joint custody” of their three children, three boys aged 11, 9 and 6 years.
[1] I have referred to this witness as “Mrs R” throughout this document, although it has been made clear that her wedding to the Applicant was to take place within a few days. I am not aware as to what surname the witness intended to use after her marriage, and I do not intend to make any assumptions.
In cross-examination, Mrs R said that she treated M the same way she treated her own three boys. She said that she was not aware of his sleep disorder and had not witnessed M becoming upset at sleep time.
Mrs R confirmed that there were constant arguments at contact changeover. Her view was that she should support Mr S.
At one time, the mother asked Mrs R about the mother’s claim in her affidavit dated 7th June 2002 that the father and his fiancee were “exposing M to sexual behaviour that is inappropriate for a child of five years to see.” When the mother asked her about participating in sexual activity whilst the child was in the house and presumably aware of that activity, Mrs R gasped and appeared shocked; she immediately and hotly denied the allegation. I accept her denial, and I note that she appeared shocked and embarrassed by the allegation.
The mother gave evidence. Her affidavit of 30th September 2002 contained a number of allegations about the father. In particular she claimed that:
(a)the child M reports to her that he is left in the care of other people for half a day or more whilst on contact with his father;
(b)the father is more concerned with his rights than with what he can offer to his son;
(c)his application is motivated more by a desire to disrupt the child and his mother’s family than developing a relationship;
(d)the majority of the child’s time with his father over the past six years has been spent being “babysat” by videos and computer games whilst his father was on the telephone or in the company of other people;
(e)the father can arrange time off work for other purposes but not to spend time with his son; and
(f)the father’s fiancee is not as available to care for the child as the father makes out.
The mother volunteered during her cross-examination of the father that it was her family’s practice to have an annual holiday in the September/October school holidays for two weeks and another holiday for three weeks in the December/January school holidays. I have had regard to this, even though it was not given on oath. I asked the mother about her holiday arrangements after she had been cross-examination by Ms Davitt, and she said that she had been going away in the September/October holidays for the past two or three years. She also said that she generally goes away for a holiday in the December school holidays for about two weeks. Her partner, Mr R, gets four weeks recreation leave a year and has a long service leave entitlement.
The mother went on to say that she did not believe that the child was yet ready to spend two weeks with his father. Four or five nights had been the longest time that he has spent with his father since the parties separated.
The mother also had strong views about the father’s proposals for midweek contact. She was of the opinion that this would be incredibly disruptive.
The mother spoke about the father’s telephone calls to the child. She said that he would ring at any time between 4.30 and 9.15 pm, when the child goes to bed at 7.30 pm. She believed that the child should be able to ring his mother whilst on contact.
The mother had a different view about Mrs R’s visible shock at being asked about sexual behaviour. In answer to a question from the Bench, the mother expressed the opinion that this was an example of Mrs R being untruthful, and that her sharp intake of breath was an indication of seeking time in order to fabricate a lie. I would comment now that my observation of Mrs R was completely at odds with the mother’s view. It appeared to me that Mrs R displayed shock and embarrassment at being asked a very personal question in open court. The mother did not seem at all conscious of the impact of her question on the other woman.
The mother’s evidence in cross-examination by Ms Davitt, the child’s representative, was that her problem was “dealing with A and S’s behaviour during pick-up and drop-off” of the child. She expressed the opinion that the father “tries to make pick-up and drop-off as unpleasant as possible”. She spoke about her dislike of Mrs R’s boys wrestling on her front lawn when M was being returned. She told the court that she “went to counselling for two years to cope with A’s ridiculous behaviour during handover”.
Despite her other comments, the mother expressed the view that Mrs R had exercised a positive influence over the father on the question of contact. She said that until the father met Mrs R, contact was sporadic. She said that she wanted more contact between the child and his father. Contact has been regular since the father met Mrs R.
MCR said in his affidavit dated 27th September 2002 that he has “shared a house with J P-S” since approximately 26th August 2001. He is the father of twin boys from his former marriage and of the child C, who was born about August. The respondent is C’s mother.
Mr R describes an incident in October 2001 when the father brought M home after a contact weekend and then engaged in a lengthy discussion with the mother about contact issues. Mr R estimated that the discussion lasted for anything up to two hours and was distressing for the child.
Mr R referred in his affidavit to the fact that the father was about $3,000.00 in arrears with child support payments, which he said was “causing M and our household financial hardship and is impacting on the level of child support I can pay to S and D’s (his sons) mother”. Mr R did not go into detail about this statement, but seems to ignore the fact that he and Mrs P-S had recently had a baby, and the baby meant that Mrs P-S was unable to go to work, as she had done before. That Mr R should use the fact that Mr S is in arrears with child support payments (which he undoubtedly is) as an excuse for not meeting his own child support obligations is not a matter that a Court would readily accept.
Mr R complains of the father entering the house he shares with Mrs P-S without invitation on more than one occasion. He also said that Mrs R had once entered the home uninvited. He further complained of Mrs R’s children wrestling on their front lawn when M is returned from contact with his father, which he and Mrs P-S find disruptive.
In cross-examination by Ms Davitt, Mr R said that he has contact arranged with his two children for two weeks from Christmas Day until 8th or 9th January 2003. Not surprisingly, he and the mother would like M to be with them when he has contact with his children.
The Family Report
LV, a family and child counsellor, prepared a Family Report. As I mentioned earlier, she was not required for cross-examination, so her report stands unchallenged.
In the Family Report, Ms V describes her interviews with each parent and with the child. She also describes the observations of M’s interaction with the father and Mrs R.
Ms V said that the parties had reached agreement on several issues, including alternate weekend contact from Friday afternoon until Sunday afternoon, and one half of the school holidays. They had not reached an agreement about contact on Tuesday evenings.
The counsellor reported M as saying that he enjoys visits with his father “especially because he can spend time with his father and play with the boys”[i]. She also observed M’s interaction with the father and Mrs R, and describes his interaction with them as “spontaneous, relaxed and affectionate.”[ii] She went on to say that M hugged both his father and Mrs R good-bye, and then wanted to go back and say good-bye again.
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 I have 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 Harrison v Woollard, (1995) 18 Fam LR 788; 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… 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.
More recently, this issue has been considered by the Full Court of the Family Court in R and R [Children’s Wishes] [2002] FamCA 383, where the Full Court held that “the principle is clear that a Court must take the children’s wishes into account, but is not bound by them.”
In this case, M is six years and four months old. His wishes would not be given the same weight as those of an older child, but they are not irrelevant. Whilst the counsellor did not go into any detail with the child about his wishes, and quite properly so, there is evidence on which I can find that this child wishes to spend time with his father and enjoys being with Mrs R’s three children, who form a part of his father’s household. I am satisfied that contact orders should be made to facilitate that wish.
Sub-section 68F(2)(b) states that 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.[iii] There is nothing in the evidence to suggest that the child has other than a good relationship with the mother. There is very little evidence about the child’s relationship with Mr R, except that he plays games with him from time to time. Mr R appeared to have a positive view about the child and a concern for his welfare.
The Family Report shows a positive and affectionate relationship between M and his father. The counsellor’s observations of M and Mrs R were equally positive, and it appears that the child’s relationship with her is a good one.
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. There is no proposal to make any major change in M’s living arrangements, except that the father wants more contact with the child.
It is important to consider the practical difficulty and expense of a child having contact with a parent.[iv] 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). There are no difficulties about geography, as the parties live in G and O T, which are Sydney suburbs within a few kilometres of each other. The difficulties that arise come from the parents’ animosity, which seems to manifest at contact changeover.
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.[v] Both parents appear to be able to meet these needs, although their parenting styles are different. The mother is not convinced that the father’s more casual style of parent carries the requisite amount of supervision, but I am satisfied that the father is assisted by Mrs R, who struck me by her demeanour and her answers in the witness box as a sensible and pleasant person with a good relationship with M.
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. M is a little boy aged six who has a good relationship with his father.
Sub-section 68F(2)(h) makes it clear that 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.[vi] This sub-section deals with subject matter that is also to be considered under sub-sections 68F(2)(I) and (j). There are no issues of violence here, although it is regrettable that M has apparently witnessed serious arguments between his parents about arrangements concerning him. The evidence suggests to me that neither parent can escape without criticism in this regard, and I am firmly of the view that arrangements need to be changed to reduce this child’s exposure to his parents’ disagreements about him.
The attitude to the child, and to the responsibilities of parenthood, displayed by each parent must be taken into account by the Court.[vii] The parents have different parenting styles. The father criticises the mother as being over-cautious, the mother regards the father as being less responsible than he should be. I am of the view that the father needs to accept that this child lives with his mother most of the time, and he has to pay due regard to the regime in the mother’s household.
At the same time, the mother needs to move on from her negative view of the father’s capability, which seems to be based on her perceptions of the father’s failings in the past. Not only is M growing up, so too has the father moved on. The relationship with Mrs R, now marriage, appears to have been a stabilising factor in the father’s life, leading him toward a more responsible approach to his parenting responsibilities. The mother grudgingly acknowledged that the father’s approach to contact had been more regular since Mrs R had entered his life, but seems unable to accept the fact that Mrs R is more than ‘just another girlfriend’.
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), is covered by sub-sections 68F(2)(I) and (j).[viii] There is no Apprehended Violence Order in this matter, nor is family violence an issue.
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[ix]. 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. Both parents, however, will need to make some adjustments, if M is to have a happy relationship with each of his parents.
Any other relevant fact or circumstance that the court thinks is relevant[x]. No other relevant matters have been raised by the parties.
Conclusions
The Child’s Representative prepared a useful schedule of draft orders which she proposed for the Court’s consideration. The father indicated that he agreed with 95% of the suggested orders, but the mother was less forthcoming.
Ms Davitt pointed out that the mother questioned the value of contact if the father was not actually present, and said that the mother sees the father’s actions as designed to upset and annoy her. The mother’s attitude to the father generally is fairly negative. Ms Davitt deplored the mother’s questions about sexual behaviour in the father’s household and her comments that the father and Mrs R were lying. Ms Davitt suggested that contact changeover should be shared between the parents, submitting that it was inappropriate that the father was required to do all the travelling.
Ms Davitt suggested that holiday contact should be alternated, as should Christmas contact. She was firmly of the view that the child would benefit from holiday time with his father, and she submitted that the orders for contact should be set out in as much detail as possible to reduce the likelihood of conflict in the future.
The mother expressed concern about the father having contact with M during the week, as this would be disruptive. She did not believe that the child should be required to go on contact with his father for more than 5 days at a time, and suggested that there should be a total of 20 days holiday contact. When she returns to work as a TAFE teacher, she will want M with her during those holidays, which do not necessarily align with school holidays.
The mother was resistant to any proposal that she should share some of the responsibility for either delivering the child at the commencement of contact or picking him up at the conclusion. She said she had never seen that this arrangement had worked, as she does not feel comfortable in picking M up or delivering him on her own. She rejected the suggestion that Mr R could assist in this regard, as he apparently has difficulties of his own about contact arrangements with his children.
The mother was less than enthusiastic about Mrs R being involved in looking after M if his father was not present. She said “There would be periods of time in the school holidays when S does not have her boys – what happens to M then?”
The father, as I indicated earlier, said that he agreed with 95% of Ms Davitt’s recommendations. Rather despairingly, he suggested that if it was not possible for M to spend every Tuesday evening with him, he would be happy with alternate Tuesdays. He said he was happy to share the contact travel, and suggested that he should pick M up at the commencement of each contact period. He suggested that if Mrs P-S was uncomfortable about attending his home to collect the child, then her mother might assist, as she only lives one kilometre away.
In summary, the father submitted that M enjoys his time with his father. He wishes to see his child for half of each school holiday period, every second weekend, and every alternate Tuesday.
I have considered the evidence and the parties’ submissions. I have been considerably assisted by the thoughtful submissions of Ms Davitt, the Child’s representative, and by the observations and the recommendations of Ms V in the Family Report. In the end, the decision must be made by the Court, which should be guided by the principles set out in the sections of the Family Law Act to which I have previously referred. The primary consideration is what is in the best interest of the child.
The situation as I see it is that it is clear that the child M has a good relationship with his father and wants to spend time with him. I am satisfied that it is in the best interests of this child that he spends a good deal of time with his father and that there should be a regime of contact that allows him to do just that.
There are a number of issues that are conspiring to make life more difficult for this little boy than they need to be. There is an ongoing hostility and mistrust between his parents, neither of whom can escape without criticism in this regard. This hostility emerges on all too frequent basis at contact changeover, particularly at the end of a contact period. I see this as detrimental for the child, as an argument between his parents when he returns to his mother will tend to spoil the otherwise positive experience of his time with his father. There is an obvious need to reduce or remove this situation.
Each parent needs to come to terms with the fact that they have both moved on from the marriage. Time may heal all wounds, but in this case the emotional scar tissue has taken a long time to form. Both parents have formed new relationships. The new relationships are with people who have children of their own, which leads to further complications. Each parent must accept that the other has formed a new relationship and a new family, and that M should be a part of both.
The father must accept that the Mother’s relationship with Mr R is a permanent one. The mother has a right to form this new relationship. She and Mr R have a child of their own, and they want to spend time as a family with that child, M, and Mr R’s two children.
It is important for the father to understand that the mother and Mr R have their own home at G, and they will not necessarily want the father, or his new wife, to enter that home. It is M’s home, but that does not give the father the right to enter it unless he is invited to do so. Similarly, the mother and Mr R have a difficulty with the R boys coming to the house and wrestling (or doing whatever they do) on their front lawn. The father may see nothing wrong with their behaviour, regarding it as just boyish exuberance, but if it is unacceptable to the mother and Mr R, their wishes should be respected. It would be better if the three boys did not normally attend at the G house.
The mother also has an issue about the father telephoning M after or near his bed-time. There is certainly evidence that the child has had a sleep disorder, although the father says that it does not apparently manifest at when the child is on contact with him. The evidence is that he normally goes to bed at his mother’s home at 7.30 pm, and the father conceded that the child is usually asleep by 8.30 pm. I believe that it would be preferable if the father were only to telephone the child by or before 7.00 pm, to give him a chance to settle down to going to bed at 7.30 pm.
The mother is opposed to the father having contact with the child on Tuesday nights, even on alternate weeks. She believes it would be disruptive, and I am inclined to agree. Whilst the father may wish to see his son during the gap between contact weekends, I consider that it would be counter-productive for a system of mid-week contact to be introduced, and I do not propose to make an order prescribing this contact.
The mother needs to accept, too, that the father has remarried. He has moved on in his life and, whatever she perceives may have been his deficiencies as a father in the past, he has demonstrated a wish to spend time with his son. His new wife, who impressed as a responsible person, will be able to assist him. There is clear evidence that M enjoys his time with his father and has a good relationship with his father’s new wife.
The mother conceded that she was going to allow M to attend his father’s forthcoming wedding, which I see as a good way for M to see that his father’s marriage to S R is a good thing to happen. The father has a right to form a new relationship.
I am not satisfied that the mother has shown that the father’s application for more contact is motivated by a desire to annoy her. It appears to me to be an expression of his wish to see more of his son and to play a positive role in his son’s life. I am also satisfied that there is no evidence of M being exposed to sexually inappropriate behaviour at his father’s home. Mrs R seemed genuinely shocked at being asked such a blunt and, in my view, hurtful question and I doubt that she would permit anything inappropriate to incur in the presence of M or any of her own children.
The wife has expressed concern about the ability of the child to spend two weeks with his father at one time. She said that four or five nights has been the longest period of time that he has spent with his father since the parties separated. I am not persuaded that this is necessarily so. There is evidence that M has a good relationship with his father, and I would expect that he would enjoy the opportunity of spending the time with Mrs R’s boys.
I am mindful that the mother has a practice of spending the September/October school holidays at T, and this arrangement is obviously important to her. It would appear preferable that she can continue that arrangement, and the father can have block contact during the other school holidays. There is no requirement that a parent has to have contact every school holiday, and it is often the case that people who are working cannot get time off every holiday period.
It is clear that that contact changeover is a source of conflict between the parties. The time when the child is returned appears to be particularly difficult, due to the complaints about the father entering the house and the boys wrestling on the front lawn. Ms Davitt has submitted that it is unfair for the father to do all the travelling for contact. The mother has constantly complained about the father’s behaviour when returning the child, but the obvious solution of her collecting him from the father’s residence does not meet with her approval. She does not feel comfortable going to the father’s residence at all, and she rejects the idea of Mr R being involved, because he apparently has problems in the handover with his former wife. The mother cannot have things all her own way, nor can she be heard to complain about an arrangement and, when a change is suggested, keep on saying “Yes, but…” I am not satisfied that it is just and equitable for the father to do all the contact travel, nor am I satisfied that it is in M’s best interests for there to be bickering or unpleasantness between his parents when he is returned from contact. The mother will have to make appropriate arrangements to collect the child at the conclusion of contact.
I propose to set out these arrangements in some detail, to reduce the likelihood of difficulties arising. There are no proceedings before the Court under the Child Support (Assessment) Act, but I note that the father is currently in arrears. It is often a source of grievance between parties when child support is in arrears, and an effort to reduce the arrears may help to improve the relations between the parties.
I note that the Child Representative seeks an order that the parties pay one half of the costs of the Child Representative on behalf of the Legal Aid Commission of New South Wales. The Legal Aid Commission provides a valuable service to this Court in making solicitors available to represent children pursuant to orders made under s.68L of the Family Law Act, and I am mindful of the helpful contribution made by Ms Davitt in this matter. I consider that a costs order is appropriate in the circumstances.
For the reasons set out above, I propose to make Orders as set out on the attached schedule.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 19 December 2002
[i] Family Report, page 7
[ii] ibid.
[iii] Sub-section 68F(2)(b)
[iv] Sub-section 68F(2)(d)
[v] Sub-section 68F(2)(e).
[vi] Sub-section 68F(2)(g)
[vii] Sub-section 68F(2)(h)
[viii] Sub-sections 68F(2)(I) and (j)
[ix] Sub-section 68F(2)(k)
[x] Sub-section 68F(2)(l)
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