SAD & SJA
[2003] FMCAfam 122
•5 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAD & SJA | [2003] FMCAfam 122 |
| FAMILY LAW – Children – residence – best interests of child – status quo – shared residence – child aged 5 years – stable residence with father and grandparents. |
Family Law Act 1975, ss.60B; 65E; 68F
B and B (Family Law Reform Act 1995) (1997) 31 FAM LR 676; FLC 92-755
Harrison and Wollard (1995) 18 Fam LR 788; FLC 92-598
In the Marriage of R[Chilren’s wishes] [2002] FamCA 383
Joannou (1985) 91-642
Jones v Dunkel (1959) 101 CLR 298
Jurss (1976) 9 ALR 455; 1 Fam LR 11,203; FLC 90-041
M & M (1988) 166 CLR 69
Maday (1985) 10 Fam LR 357; FLC 91-636
McEnearney (1980) 7 Fam LN5; FLC 90-866
Raby (1976) 12 ALR 669; 2 Fam LR 11,348; 27 FLR
R and R: Children’s Wishes (2000) 25 Fam LR 712; FLC 90-000
Watts (1976) 9 ALR 428; 1 Fam LR 11,266; 26 FLR 136; FLC 90-046
| Applicant: | A D S |
| Respondent: | J A S |
| File No: | PAM 3761 of 2002 |
| Delivered on: | 5 March 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 25 and 26 February 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mardens |
| Counsel for the Respondent: | Mr Hennes |
| Solicitors for the Respondent: | R J Russell |
ORDERS
The child of the marriage B M W S, born 18 December 1997 is to reside with the Applicant father, from after Sunday 20 April 2003.
From and after Sunday 20 April 2003, the Respondent mother is to have contact with the said child as follows:
(a)for the first weekends of each month during school term time, commencing from after school on Friday and concluding at the commencement of school on the Monday morning, PROVIDED THAT where the Monday following the weekend is a public holiday, then contact will conclude at the commencement of school on the Tuesday morning;
(b)for half of each school holiday period as agreed between the parties and, in default of agreement, for the first half of each school holiday period in 2003 and each alternate year thereafter and for the second half of each school holiday period in 2004 and each alternate year thereafter;
(c)from 9.00 am on Mother’s Day in each year until the commencement of school on the following Monday morning if Mother’s Day does not fall on a weekend where the mother would normally be entitled to contact with the said child;
(d)for a reasonable time at Christmas in each year as agreed between the parties;
(e)for not less than two (2) hours on the child’s birthday and on the mother’s birthday in each year or for such other times as the parties agree; and
(f)by telephone at all reasonable times.
The mother shall not be entitled to exercise contact with the said child on Father’s Day in each year after 9.00am.
For the purpose of exercising contact pursuant to Order 2(a), the mother is to collect the said child from school at the commencement of contact and return the said child to school at the conclusion of contact.
For the purpose of exercising contact at other times, the mother is to collect the child from the father’s residence at the commencement of contact and the father is to collect the child from the mother’s residence at the conclusion of contact.
The father is to do all such things necessary to authorise the Principal of each school attended by the said child to forward to the mother copies of all school reports, newsletters, bulletins, information about school photographs and any other material normally forwarded by the school to parents of children attending that school.
All documents produced on subpoena other than exhibits may be returned.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3761 of 2002
| A D S |
Applicant
And
| J A S |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father for orders that the child of the parties marriage, a little boy called B, should reside with him. Whilst the father's amended application refers to the mother having what might be called standard orders of contact, namely alternate weekends and half school holidays, the father deposed in his affidavit to an agreement with the mother that contact should take place on three weekends out of four. In the course of submissions at the end of the evidence, the father's solicitor, Mr Reeve, told the Court that his instructions were to put that weekend contact commence after school on Fridays, and conclude at the beginning of school on the Monday morning. Accordingly, I have taken that to be the basis of the orders that the father seeks.
In her amended response filed on 7 February 2003 the mother seeks orders to this effect:
a)That the child should reside with her;
b)
That the father should have contact with the child on alternate weekends, during half of each school holiday period, on Father's Day, or on special occasions such as Christmas and Easter.
I comment in passing that the order sought actually says: "on Father's Day from 9 am till 5 pm when it does fall on a contact weekend", but I have taken it that the word "not" has been left out.
The mother also seeks an order that the father should both collect the child from her residence at the beginning of contact, and return him to her residence at the conclusion of each contact period.
The parties also seek property orders as well, but I will deal with those on a later occasion. I wish to deliver a decision on the question of the parenting issues as soon as possible, as I believe it to be in the best interests of the child concerned for these matters to be resolved quickly.
The applicant father is 26 years of age, having been born on
18 May 1976. The respondent mother was born on 20 July 1972, so she is now 30 years old. The parties commenced their relationship in December 1996 and commenced cohabitation in January 1997. They were married on 13 June 1998. The child, B, was born on
18 December 1997. He is now five years of age and he has just started school.
The husband and wife moved to Western Australia in August 1998 as a result of the husband's father being posted there in the course of his employment in the Australian Regular Army. They resided in Western Australia until January 2000, when they returned to New South Wales. The husband's parents returned a little while later on.
The parties separated in November 2000 but resumed their relationship in March 2001. They purchased a house at B in the State of New South Wales in July of that year, and resided there together. The mother says that they separated but remained under the one roof in August 2001.
The mother travelled to the United States of America for a holiday in August 2002 and returned to Australia on 15 September. The child, B, had remained in the care of the father whilst the mother was away.
Shortly after the mother's return to Australia, she ceased her employment and the father commenced these proceedings. At an interim hearing at this Court on 4 November 2002, I made interim orders providing that:
a)The child, B, was to reside with the mother;
b)The father was to have contact with the child from 6 pm on Fridays to 6 pm on Tuesdays, until he commenced school, from 2 pm on Christmas Day to 2 pm on Boxing Day, and on the child's birthday; and
c)That once the child commenced school the father was to have contact on alternate weekends, for half of each school holiday and on Father's Day but not on Mother's Day. I also ordered that a family report should be prepared pursuant to section 62G of the Family Law Act.
The father is currently residing with his parents at M as the residence at B has been sold. The mother now resides at W.
The mother has now formed a relationship with an American man called S B. She had stayed with him in the United States, and he travelled to Australia with her when she returned in September. He is currently residing with her, but he is required by the terms of his visa to leave Australia by 15 March 2003. The father has not formed another relationship. The parties are not divorced, although there is no issue that the marriage between them is over.
The father gave evidence in these proceedings, as did his father K S and his mother J H S. It is part of the father's case that his parents have played an active role in the care of B for most of the child's life, and that they have a very good relationship with him. The father also says that he has played a greater role in the child's upbringing than the mother.
The paternal grandfather, K S, is a Warrant Officer in the Regular Army. He is currently posted to a unit at R B in S, but eventually hopes to retire in B.
The mother gave evidence, as did her mother, M M C. Mrs C's evidence was noteworthy for the way in which she made no criticism at all about the father's parenting capacity, nor did she have anything but praise for the way in which the paternal grandparents had cared for the child.
In her affidavit, Mrs C described how Mrs S Senior had assisted with the care of the child, and in cross-examination she described the care given by the paternal grandparents as: "wonderful." Mrs C expressed the view that the proceedings between the parties were proceedings which should stay “between A and J”, to use her words.
Mrs C impressed me as a witness of truth who was motivated solely by a desire to act in the best interests of the child. Her evidence was utterly devoid of malice, and I expressed the view at the conclusion of her evidence that her generosity of spirit was a credit to her. Mr Reeve, the father, informed the Court that Mrs C's words had not fallen on deaf ears, as far as his client and his parents were concerned.
J S, a regulation 8 welfare officer, prepared a family report for these proceedings. Ms S is a psychologist employed at the N C S C. Her report, dated 7 February 2003, was received into evidence as an exhibit. Both Mr Reeve for the father and Mr Henness, counsel for the mother, cross-examined Ms S on the contents of the family report.
In order to prepare the family report, Ms S interviewed parents, the child B, and the paternal grandparents. She did not interview the maternal grandmother, although her report shows that she read
Mrs C's affidavit. Ms S interviewed Mr S B, who had accompanied the mother to the Court, for the preparation of the report. Mr B did not swear an affidavit and did not give evidence in these proceedings.
Ms S observed the father interacting with the child, and then she observed the mother and Mr B with him.
In her report, Ms S described both parents as “significant and loving parents” and expressed the view that it would be desirable if such an arrangement were practically possible for the child to have the benefit of both parents’ care. There were three options presented in the report, of which option 2 was, and I quote:
"B's residential care be shared between his mother and his father, if geographically and practically possible."
Option 1 was that the child should reside with the father in the home of the paternal grandparents, with the mother having liberal contact. Option 3 was that the child would reside with his mother with liberal contact with the father and the paternal grandparents.
Whilst Ms S expressed a preference for a shared residence order, she expressed the view that if such an arrangement were not possible, the child should reside with the father and paternal grandparents. Ms S went on to say that in either case, and I quote:
"It is important that he has ample contact with the non-residential parent and fortnightly weekends are probably insufficient to meet his emotional needs, particularly at this young age."
Ms S described the mother, saying that she came together with Mr B at a time when she was feeling extremely emotional and very lonely, saying she was crushed about the way things had evolved between herself and the father. She said that she felt robbed of spending time together with the child, and that she never wanted to work full time. This issue was the source of resentment and conflict between the father and herself. She described arguments over finances, and her evidence was that she felt obliged to work because the father had spent time not fully employed.
The counsellor in fact referred to the issue of employment in her report in the discussion section where she said that, and I quote:
"Therefore, the issue of employment depends on whether and how this affects the child, rather than the fact that a parent is employed, per se."
I would comment Mr S is working at the moment, and the counsellor went on to say that Mr S' obligation to wake up and leave for work at around midnight may disturb B, due to his sharing a room with his father, rather than B being unhappy about the timing of his father's absences.
The counsellor commented that the mother's employment during B's early childhood may be distressing to her in retrospect, but it does not appear to have prevented her from forming a loving relationship with her son.
The counsellor compared the two households, and looked at the issue of whether the father's father, Warrant Officer K S, may be obliged to move in the immediate future. I heard some evidence from him on that. The counsellor took it as established that the maternal grandparents would be remaining where they were for the immediate future, and indeed she said this issue was critical for establishing the stability of the paternal home environment. In the absence of further postings, it appears that this environment is a stable one and provides an extended family environment that is familiar to and enjoyable for B, and therefore the optimal one for B.
The counsellor compared that with the environment offered by the mother, saying the family environment offered by Mrs S is not unstable. It impresses as less familiar and more newly established. Part of this impression is formed by the relatively recent commitment to her de facto, Mr B. While Mr B's behaviour and attitude towards B seemed extremely positive and appropriate, his lack of permanent residence status and the rather complex situation regarding his own daughter, Kylie, makes his continued presence and support of Ms S unpredictable.
The counsellor's comments were made as a result of observing B with the father, with the mother, with the mother accompanied by
Mr B and the father accompanied by the paternal grandparents. The interactions between the parties, whilst different, were interactions that had positive aspects which far outweighed the negative aspects. I would comment, however, that the counsellor did raise the issue of some need for the father to have a form of a parenting course.
The issues between the parties are whether the child should reside with the mother, either with or without Mr B, or with the father in an environment that is going to include the paternal grandparents. Whilst the counsellor was of the view that this was the exceptional case where shared residence would be considered if geographical and practical arrangements permitted it, this was not an option that the parties pressed on me, and I would comment that the geographical distance between the parties was a factor that would create problems as far as this is concerned, as the parties live by their estimates approximately an hour's drive apart. It is not as if they were in the same suburb or a few streets away.
The parties both impressed the Court as ones who, despite the seriousness of their differences over issues including financial issues, were ones who would be conscious of their responsibilities as parents, and in fact Mrs S Junior gave evidence as to the fact that she and Mr S were able to negotiate about matters of B's welfare and convenience, without allowing their personal differences to intrude, which is to the credit of both parents.
The principals to be applied are those set out in section 60B of the Family Law Act 1975. That section sets out the object of part vii of the Act, which deals with applications relating to children. Section 60B(1) says that the object of this part is to ensure the children receive adequate and proper parenting, to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Subsection 60B(2) sets out the principles underlying the objects in section 60B(1). I note subsection 60B(2)(b) is relevant to this case, saying that 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.
It is quite clear from section 65E of the Act that:
"In deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration."
In the decision of M and M reported in (1988), 166 CLR 69, the High Court of Australia said:
"The ultimate and paramount issue to be decided in proceedings for custody of or access to a child is whether the making of the order sought is in the interests of the welfare of the child. "
Section 68F(2) sets out the matters that the Court must consider when deciding what is in the child's best interests. Those matters were considered by the Full Court of the Family Court of Australia in B and B, Family Law Reform Act 1995, reported in (1997) FLC 92-755 and in 1997 21 FLR 676. The Court held, and I quote:
"In proceedings under part vii relating to parenting orders which include relocation cases, the best interests of the particular child in that case remains the paramount consideration."
Section 65E.
"In that process the Court must consider the matters set out in section 68F to the extent that they are relevant in the particular case, the weight to be attached to any one consideration, depending on the circumstances of the individual case, and is a discretionary exercise by the Trial Judge. "
The Court must consider all of the matters in section 68F, although not all of them will be relevant in every case. I have considered them all.
Paragraph (a) relates to any wishes expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child's wishes. The Court should consider the children's wishes and give them such weight, as the Court considers appropriate in the circumstances.
I refer to Harrison and Woollard, (1995) 18Fam LR 788:FLC 92-598 decision. The Court must take children's wishes into account, but is not bound by them, and a look of the decision of R and R, Children's Wishes, (2000) 25 Fam LR 712; FLC 93-000, and In The Marriage of R, [Children's Wishes], which was reported in [2002] fam CA 383.
This child has only recently attained the age of five, and I would not give a great deal of weight to any expressed wishes. Nevertheless, his wishes are not irrelevant, and I refer to Joannou, (1985) FLC 91-642, where it was said that the wishes of children aged from eight years down to four years would not be irrelevant, and I will take the child's wishes into account. I note that he told the welfare officer that he liked doing things with his father. She described him as an anxious child who is confused and aggrieved by the present conflict over his residence.
Paragraph (b) relates to the nature of the relationship of the child with each of the child's parents, and with other persons. This child appears to have a loving and caring relationship with each parent. He also has a strong relationship with his paternal grandparents. The child's relationship with Mr B appears to be positive. I take that from the family report, as Mr B did not give evidence.
There is no evidence through the counsellor of the child's relationship with the maternal grandmother, although I am of the view, in the light of my earlier comments about this lady, that she clearly has this child's best interests at heart and I would see her as a lady who would want to have a positive and loving relationship with her grandson.
Paragraph (c) looks at the likely effect of any changes in a child's circumstances, including the likely effect on the child of any separation from either of his parents or any other child or other person with whom has been living. If this child is to live with one parent, it is clear that he needs to have regular contact with the other. The counsellor made that quite clear and indeed suggested that the usual arrangement of fortnightly contact with the other parent would not be sufficient. This is the matter that the parents themselves seem to have addressed.
Paragraph (d) looks at the practical difficulty and expenses of a child having contact with the parent, and whether that difficulty or expense will substantially affect the child's right to maintain the personal relations and direct contact with both parents on a regular basis.
As I said, the father is living at M. The house at B has been sold. The mother lives at W. The mother estimates that the two residences are about an hour’s travelling time apart. This is going to have some effect on the child, but not to my mind any deleterious effect on the child's wellbeing.
Paragraph (e) looks at the capacity of each parent or of any other persons to provide for the needs of the children, including emotional and intellectual needs. Both parents have a good capacity to provide for the child's needs in different ways, and there are limitations. The Counsellor has commented on the need for the father to undertake a parenting course, and the father gave some evidence that he was proposing to undertake such a course.
The paternal grandparents have a proven history with the child, and they appear to be able to provide him with a stable environment. The maternal grandmother also appears to me to be a loving person who I would infer would be able to provide for this child's needs.
Paragraph (f) looks at the child's maturity, sex and background. B is a little boy aged five years and two months. The fact that he is a little boy, not a little girl, is of no significance in these proceedings. There is no judicial preference that the father is a preferred custodian for a boy – Mulligan (1976) 1 Fam LR 11,559; FLC 90-080 is the authority for that - any more than there is any judicial preference for the mother to be a custodian or residence parent of young female children. The decision in Raby (1976) 12 ALR 669; 2 Fam LR 11,348; 27 FLR 412; FLC 90-104 is that authority.
The proper approach is for the Court to consider the individual circumstances in respect of the parents and not be swayed by any preferred role of a mother or preferred role of the father.
Paragraph (g) looks at the need to protect the child from physical or psychological harm caused by exposure to abuse or threatened or violence. Paragraph (i) looks at family violence involving a child or a member of the child's family. Paragraph (j) looks at family violence orders in force.
The fact is that there is just no evidence of any of this. It is just not an issue. These parents are not the type of people who would be involved in violence or abusive behaviour. They are both loving parents and the thought of domestic violence in their families, or any exposure of the child to violence, would be abhorrent to each parent, on my estimation of them, and of the grandparents. So that is not a matter that needs considering in any way.
I look at the attitude to the child and to the responsibilities to parenthood demonstrated by each of the child's parents. Each parent wants to be a parent of this child. Each parent has taken on board the responsibilities of parenthood, and they have demonstrated that by their ability to negotiate with the other parent in respect of arrangements for B. They have done that by putting their own grievances, unhappiness and arguments with each other to one side and negotiating in a civil manner about what is best for the child.
I look at 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 s.68F(2)(k).
There must be a finality to litigation, although there is no specific
res judicata rule as far as parenting proceedings are concerned, and there can always arise circumstances in the future where if there is a change of circumstances the Court may need to look again at the parenting orders.
That does not mean, however, that there should not be an end to litigation, and indeed that principle should not be forgotten. The late
Nygh J referred to that very issue in a most useful judgment back in 1980 in a case called McEnearney (1980) 7 Fam LNS; FLC 90-866.
I am of a view that an order that allows both parents the opportunity to play a supportive role in this child's life would be the least likely to lead to further litigation. As I said, it is noteworthy that the parents, to their credit, are able to discuss issues relating to their son in a calm and rational manner, putting his best interests ahead of their other differences.
I am not of a view that there are any other facts or circumstances that appear to be relevant at this stage s.68F(2)(1). There are no health issues, there are no issues relating to religion or sexuality that I need to take into account.
Now, there is no status quo in this matter. The arrangements have been in a state of flux, as is not surprisingly the case, where parties have gone through a form of separation, and indeed, I have made interim orders to deal with the immediate placement of this child once the mother had returned from the United States. Those orders took into account the fact that B was just about to start school.
Now, it is a trite principle that the Court should not hesitate to change the existing residence arrangements, if they are predictably more detrimental to the child's welfare, than the proposed alternative – and if the long term benefits outweigh the short term distress likely to be suffered by the child. The 1976 decision in Raby (1976) 2 Fam LR 669; FLC 90-104 and the decision of Watts (1976) 9 ALR 428; 1 Fam LR 11,266; 26 FLR 136; FLC 90-046 that same year are authorities for that principle.
It is fair to say that neither arrangement proposed by the parents could be regarded as detrimental to this child. Each parent is a loving parent who wants to be a loving and committed parent.
The decision of Jurss and Jurss, (1976) 9 ALR 455; 1 Fam LR 11,203; FLC 90-041, was one where the Full Court held – and it is a principle that applies today – that the inquiry conducted by the Court is a positive one designed to promote the interests of the child. It doesn't mean that the status quo must always be preserved, but the Court must consider the evidence and decide what arrangement would best promote the interests of the child concerned. As I said, this is not a status quo situation. There is no long-standing or long-existing situation, as was the case in the matter of Madey (1985) 10 Fam LR 357; FLC 91-636.
I would comment that it is regrettable that the mother did not tender any affidavit evidence by her new partner, Mr S B, nor call him to give evidence. There are certain issues of uncertainty about his residence in Australia, although there is no evidence that he is otherwise than of good character. The unresolved issue about his own daughter in the United States is no doubt a source of concern to him, but it adds to the uncertainty about his long term relationship with the mother and with B.
The mother has indicated that no matter what it is not her intention to return to the United States. She wishes to remain in Australia. It could well be argued that this is an indication by the mother that she takes her responsibilities as a parent seriously.
The mother gave evidence that she took Mr B along to the Court when the family report was being prepared just to introduce him to
Ms S, and it was Ms S who took the initiative, correctly, in my view, to involve him in the preparation of the report. Had she not done so, there would have been even less information about
Mr B and his place in the picture than there is now.
I hasten to add that no evidence unfavourable to Mr B has been led. Nevertheless, the failure by the mother to call evidence from him without explanation allows the inference to be drawn that his evidence could not advance the mother's case Jones v Dunkel (1959), 101 CLR 298.
The father has the assistance of his parents to care for the child. The evidence points to their having been a stable and loving influence in the child's life over a number of years, and I agree with the view expressed by Ms S that in the absence of circumstances favourable to a shared residence arrangement, the combination of the father and the paternal grandparents offers the best, most stable household for this child. I propose to order accordingly.
These reasons, for which I require a transcript of my reasons for decision to be ordered, when edited will form my reasons for this decision.
TAKE IN ORDER
As I said, I require a transcript of my reasons for this decision.
I anticipate being in a position to make the property orders available at some stage in the near future, and I will provide a separate set of reasons for that decision.
I can release sealed copies of these orders now, and the copy of my reasons for this decision, when edited, to be made available in the not too distant future, and I will forward those to the solicitors for the parties.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 10 April 2003
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