SDW and JCJ
[2005] FMCAfam 210
•6 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SDW & JCJ | [2005] FMCAfam 210 |
| FAMILY LAW – CHILDREN – Residence and contact of baby – attachment – effect of disruption to attachment process considered – parties’ capacity to meet child’s needs – separation of half siblings – primary carer – contact arrangements developing in accordance with child’s capacity to separate from primary carer – specific issues orders – change of name – PROPERTY – initial contributions – short marriage – future needs. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2), 79(4)
Child Support (Assessment) Act 1989 (Cth)
Flanagan v Hancock 2000 Fam CA 150
Foocks v McCarthy (1994) FLC 92-450
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC 92-877
B and B Family Law Reform Act (1997) FLC 92-755
Norbis v Norbis (1986) 161 CLR 513
Pierce v Pierce (1999) FLC 92-844
Parshen v Parshen (1996) FLC 92-720
Goodwin & Goodwin-Alpe (1991) FLC 92-192
Tomasetti (2000) FLC 93-023
Kowaliw (1981) FLC 91-092
U v U (2002) FLC 93-112
| Applicant: | SDW |
| Respondent: | JCJ |
| File No: | SYM319 of 2004 |
| Delivered on: | 6 May 2005 |
| Delivered at: | Wollongong |
| Hearing dates: | 3 & 6 August 2004, 22 September 2004 and written submissions |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Hanna |
| Solicitors for the Applicant: | Marriott & Oliver |
| Counsel for the Respondent: | Ms M. Bridger |
| Solicitors for the Respondent: | Kells The Lawyers |
ORDERS
All prior parenting orders are discharged.
“The child” Michael (not his real name) born in 2003 reside with the mother.
The father have contact with the said child as follows:
(a)Commencing on the next Saturday that the father was due to exercise contact pursuant to orders made 7 December 2004, each alternate Saturday from 9 am until 3 pm;
(b)Commencing on the next Sunday when the father was due to exercise contact pursuant to the orders made 7 December 2004, each alternate Sunday from 9 am until 3 pm;
(c)Commencing 1 July 2005, contact shall end at 4 pm;
(d)Commencing the weekend after the child’s second birthday, contact shall end at 5 pm;
(e)The father shall have contact on Christmas Day 2005 from 11 am until 5 pm;
(f)From 19 August 2006 to 19 November 2006:
(i)Each alternate weekend from 12 noon Saturday to 12 noon Sunday;
(ii)On the intervening weekends from 9 am until 5 pm each Sunday;
(g)From 19 November 2006 to 19 February 2007:
(i)Alternate weekend contact shall start at 10 am Saturday and finish at 4 pm Sunday;
(ii)On the intervening weekends from 9 am until 5 pm each Sunday;
(h)The father shall have contact from 2 pm Christmas Eve until 2 pm Christmas Day in 2006.
(i)From 19 February 2007 to 19 August 2007:
(i)Each alternate weekend from 9 am Saturday to 5 pm Sunday;
(ii)On the intervening weekends from 9 am until 5 pm each Sunday;
(j)From 19 August 2007 until the end of term 1 in the child’s kindergarten year:
(i)From 4 pm Friday until 4 pm Sunday each alternate weekend. From this time onwards contact on the intervening weekend ceases.
(k)Each alternate Wednesday from 4 pm to 6.00 pm;
(l)During the year preceding the child starting school the father may nominate four occasions in which overnight weekend contact shall continue until 4 pm Monday. He must give the mother
28 days notice of the weekends this is to occur.(m)During the Christmas school holidays immediately preceding the child starting school, for five consecutive days, commencing
2 pm Christmas Day unless the parties agree to a different time;(n)From the end of term 1 in the child’s kindergarten year:
(i)Each alternate weekend from Friday after school until the commencement of school on Monday;
(ii)Each alternate Wednesday from the end of school until
6 pm;(iii)For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(iv)In the years when the child is in the mother’s care for the first half of the Christmas Holidays from 2 pm Christmas Day until 5pm Boxing Day;
(o)On the child’s and father’s birthdays as follows:
(i)Until the child starts school for four hours at times agreed, if the parties are unable to agree from 2 pm until 6 pm.
(ii)After the child starts school, if the birthday falls on a school day, from after school the evening prior to their birthday/s until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on their birthday/s until the start of school the next day.
(p)For Father’s Day in each year if it falls on a non-contact weekend from 9 am to 5 pm.
(q)Upon the child turning four, by telephone no less than once a week and in this regard the mother shall assist the child to call the father.
(r)At such other times as agreed between the parties.
Upon the child starting school weekend and mid week contact is suspended during school holidays.
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the Sunday immediately before school resumes;
(d)Years ending in a zero are defined as years ending in an even number.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the father has exercised contact during the first half of the holidays AND on the second weekend after school has resumed if the father has exercised contact during the second half of the holidays.
Upon the child starting school if a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
In the event that a child is too ill to attend contact, the child shall remain in the mother’s care and the mother shall provide the father as soon as practicable with a medical certificate should he require it.
During periods when the child is on block holiday contact with the father the mother shall have telephone contact with the child twice weekly. The father shall ensure that the child is available for contact during those times.
Until the child starts school, the mother may suspend contact for two periods of two weeks in each calendar year. The mother shall give the father no less than 42 days notice of her intention to do so. This order only operates if the mother plans to take holidays away from the area with the child.
If contact falls on the Mother’s Day weekend, contact shall finish no later than 6 pm the evening beforehand.
In the years when the child is in the father’s care for the first half of the Christmas Holidays contact is suspended from 2 pm Christmas Day until 5pm Boxing Day.
The father shall collect the child from the mother’s home at the start of contact and return the child to the same place at the end of contact.
Until 31 December 2005 the mother is restrained from relocating the child’s permanent residence away from the Shoalhaven area.
Commencing 1 January 2006 the mother may relocate from the Shoalhaven area as far north as Wollongong.
The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the child.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the child whilst the child is in their care.
Each of the parties is entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the child including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.
The parties shall agree on a family general medical practitioner who will be the child’s primary treating doctor. To the extent possible the parties shall ensure that the child attends their agreed treating doctor accompanied by one of the parties, except in the case of an emergency. Upon the mother moving to the Wollongong area, the parties shall agree on a family general medical practitioner practicing in the Wollongong area who shall become the child’s primary treating doctor.
Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.
Both parties sign all documents necessary to ensure that the child is known as Michael.
Both parties are restrained from allowing the child to use or be known by any other name other than Michael.
Both parties shall immediately enroll in the Unifam “Keeping in Contact” program or such other program that the coordinator of Unifam recommends as appropriate to facilitate improved communication between them.
The father’s solicitors, Marriott & Oliver, shall forthwith distribute the proceeds of sale from the former matrimonial home as follows:
(a)23 per cent of the nett balance to the mother;
(b)The balance to the father who shall immediately pay the mother $3,901.24.
In the event that the mortgage payout on settlement of the sale of the home exceeded $193,227 or the rates were adjusted on an unpaid basis, the father shall make good the difference so that the mother receives
23 per cent of the sale proceeds calculated as though the mortgage payout was $193,227 and the rates adjusted on a paid basis.Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
Other than any application for costs, all outstanding applications are dismissed.
Any application for costs shall be made within twenty-one (21) days of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM 319 of 2004
| SDW |
Applicant
And
| JCJ |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern competing applications for residence of the parties’ only child Michael (not his real name). Michael was born on 19 August 2003. The parties stopped living together shortly prior to Michael’s birth. Since his discharge from hospital he has lived with his mother and had regular contact to his father.
Both parties seek orders for the adjustment of property pursuant to s.79(4) of the Family Law Act 1975. After the court reserved its decision the father sold the former matrimonial without first notifying the mother or even informing her of its sale. The former matrimonial home comprises the parties’ major asset. On the mother’s application the sale proceeds are held in trust pending further order.
The proceedings commenced when the father filed an application for injunctions and other orders in the Local Court at Nowra. At the same time the mother, who left Nowra for Victoria, filed an application in Geelong Magistrates Court for residence. All proceedings were transferred to the Family Court of Australia at Melbourne and in late 2003 to the Family Court of Australia in Sydney. Subsequently all proceedings were transferred from the Family Court of Australia in Sydney to the Federal Magistrates Court at Wollongong.
When the parties met the father was carrying the burden of ulcerative colitis and wanted to form a relationship and have a child. As a teenager the mother was kicked in the face by a horse and as well as physical scarring carries the emotional burden from teenager taunting and her father’s inability to look at her. Her former partner effectively abandoned her, leaving her at only 23 years to care for their baby son. The parties separated shortly after the father underwent major and traumatic surgery. This occurred shortly before the mother had Michael by caesarean section. The pressure was too great for these emotionally vulnerable people and neither coped well with separation. The father feels the mother used him and cannot understand why they separated and why he cannot have time with his new son whenever he needs or wants it. The father construes the mother’s decision to deliver the baby early by caesarean section as devaluing his surgery and an attempt to steal attention away from him. Relevantly, also a signal that she wants to exclude him from the child’s life, something he accuses her of doing with her older son and his father.
Because she has difficulty persuading the father to respect her views and believes he demands that she always gives in, after an argument on Fathers Day 2003 the mother surreptitiously left Nowra with Michael. Michael was three weeks old. Basically, she fled in an attempt to put distance between the parties so that she could gain some control over her situation. She believed that the father would harass her until she either resumed the marriage or gave him the baby. Her actions were impetuous and gave scant recognition to their impact on the father and his relationship with Michael. Ordered to return Michael to the Nowra area, the mother sought the father’s consent to return to the former matrimonial home. After separation the father returned to live with his parents and allowed friends to live there rent free. Surprisingly, he refused the mother’s request. Eventually the mother’s brother allowed her to move into a home he owns in the area.
The mother has maintained a determined stance that contact should occur frequently and for short periods organised around Michaels breast feeding. The father sees this as rigid and believes that the mother breast feeds in order to disrupt contact. Within days of Michaels birth both parties retained lawyers and have diligently trawled through every exchange testing for any evidence that may fit their hypothesis about the other party. The evidence is replete with exaggerated and misinterpreted descriptions of innocuous events. Where either an innocent or sinister interpretation of events is equally available, both blindly prefer a sinister connotation. Considered dispassionately few of either party’s serious allegations withstand scrutiny. Both parties have at least average intelligence and the extent of baseless accusation probably reflects their emotional neediness and desperate desire to gain control of this difficult situation. Notwithstanding all this tension Michael has thrived and is meeting all his developmental milestones in accordance with his chronological age.
The mother has given up her plan to reside in Victoria and proposes regular contact to the father. The father’s application appeared to change during the hearing. Initially he proposed only supervised contact for the mother, in what appeared nothing more than a tit for tat exercise to cause her maximum distress. However, he abandoned this unsustainable notion. Neither party agrees with the other’s contact or residence proposals. They also disagree about Michael’s surname. The father wishes Michael to carry his surname whereas the mother proposes either a hyphenated surname or her name.
Chronology of relevant events
SDW “the father” was born on 5 November 1973.
JCJ “the mother” was born on 11 January 1978.
The mother lived with her former partner YM in Darwin from late 1999 until the end of March 2001. They met in Darwin where both were working.
The mother’s eldest son, Timothy (not his real name) was born in Darwin in 2000.
In March 2001 the mother, YM and Timothy moved to North Nowra. When it seemed likely that they would separate the mother obtained consent parenting orders from Nowra Local Court in April 2001. The following day YM returned to Darwin. Since then he has had very limited contact had with Timothy. Contact has occurred on few occasions when YM has visited from Darwin. He has never exercised unsupervised contact.
The parties met on the internet in late March 2002. Not long afterwards they met at Shoalhaven Basketball Stadium. From about May 2002 the mother and Timothy stayed at the father’s unit at Corrimal during the week and on most weekends the father stayed in her unit at Nowra North.
The parties commenced cohabitation on 1 August 2002 when the father moved into the mother’s rented townhouse at Nowra North. Not long afterwards the parties decided to have a child. In 1996 the father was diagnosed with Crohn’s disease. Against medical advice he ceased taking medication so as to maximise the prospects of a successful pregnancy. Potentially his decision was life threatening.
The parties married on 15 March 2003.
On 21 July 2003 the father was hospitalised to undergo surgery for the removal of his large intestine. The parties have not cohabited since.
The father was discharged from hospital on 30 July 2003. Upon discharge he returned to the former matrimonial home. The same day the mother was admitted to Wollongong Hospital for observation because of severe abdominal pains and low blood pressure. Upon her discharge the mother moved in with her aunt at Wollongong.
On 19 August 2003 Michael was born. At the mothers request he was born by caesarean section, four weeks prior to her expected confinement date. The mother provided hospital staff with written instructions concerning handling the child and her visitor’s schedule[1]. Her schedule enabled the father to visit for thirty minutes on the child’s birth day and thereafter three times a day. Because she feared the father may transmit germs or unsettle the baby she withheld permission to handle the baby. The father believes the mother’s restrictions on visitors was unreasonable and her refusal to permit him to handle the baby was malicious.
[1] Annexure B father’s affidavit
On 22 August 2003, while the mother was still in hospital the parties attended mediation with a hospital social worker.
Without notifying the father, on 25 August 2003 the mother and baby left the hospital and returned to her aunt in Wollongong. The father discovered they had been discharged the following day.
Accompanied by his parents, the father had contact in the mother’s presence on 27 August 2003. He had contact again on 1 September 2003 at which time the parties discussed but could not agree on the baby’s name. Thereafter an already tense situation became fraught.
In anticipation of Father’s Day the father sought three hours contact, to be exercised away from the mother’s home. Any criticism of her refusal to agree to this request is wrongly made. The request signals the father’s determination to exercise contact irrespective of the new baby’s needs. The mother offered contact at her mother’s home, where she and the children were living temporarily. After discussion between the grandparents, her mother agreed that the father could also bring other family members.
Father’s Day fell on 7 September 2003. That day, the father, his parents, his brother, his brother’s wife and their children arrived at the maternal grandmother’s home for contact. There were too many people and emotional tension for this occasion to work smoothly. Only the father and his father entered the home. The parties argued and the mother accused the father of trying to take the baby. Timothy was outside and became distressed when he was unable to open the front door and enter the home. The father and his family left, with all parties feeling contact was a disaster. No one accepts any responsibility for what occurred and all hold the other side totally responsible for the unsatisfactory outcome. After the father left the mother contacted Nowra Police and complained about her fears of the father.
After first obtaining legal advice, on 8 September 2003, without the father’s knowledge, the mother took Timothy and Michael to her sister’s residence near Geelong in Victoria.
Immediately upon her arrival in Victoria the mother approached the Barwon Domestic Violence Outreach Centre. With their assistance on 30 September 2003 she obtained a twelve months Intervention Order[2] for her, Timothy and Michael’s protection. There was no proper basis for the mother’s claim that the order should include the children. Between her arrival in Geelong and return to NSW on
17 November 2003 the mother and children moved between Geelong and Bendigo.
[2] Exhibt M
On 10 September 2003 the father’s solicitors wrote to the mother[3] at her mother’s address. If the letter was intended to promote early resolution, its tone and content made such an outcome even more remote. In strident tones the letter complains about aspects of the mother’s conduct and then proposes contact four times a week away from the mother. At this stage the baby was 22 days old. The maternal grandmother redirected this letter to the mother. Upon receiving it the mother consulted solicitors in Victoria. She made no direct response to the letter.
[3] Annexure C father’s affidavit
On 16 September 2003 the parties filed their initiating applications. The mother sought interim residence and indicated she intended to remain in Victoria[4]. Her application made no contact proposals. The father sought a final order that the child lives with him. On an interim basis he asked that the mother return the child to the Nowra area and that he have contact four times weekly, for three hours each time.
[4] Exhibit K
On 9 October 2003 the mother registered the child’s birth, calling him Michael W J[5]. When she named Michael the mother knew the father disagreed with her nominated names.
[5] Annexure A father’s affidavit
The father next exercised contact shortly prior to the interim hearing scheduled for 17 November 2003. By prior arrangement arranged through solicitors the father exercised two hours contact in a Melbourne park. The father was accompanied by his parents. Although it was raining the mother refused to allow the father to sit with the child in a car. Her refusal was based on her irrational fear that the child may be abducted.
On 17 November 2003 in the Family Court of Australia at Melbourne, the mother was ordered[6] to return Michael to reside in Nowra by no later than 28 November 2003. The father obtained an interim contact order which enabled him to have two hours contact that day and upon Michael’s return to Nowra, for four occasions each week for two hours. Contact took place between 12.20 pm and 2.20 pm in the gardens adjacent to the Commonwealth Courts building in Melbourne. The mother complains that during this time the child became dehydrated and sunburnt. Photographs taken during contact[7] show it was a sunny day and that contact took place in deep shade under large trees. Michael shows no sign of sunburn during contact. Signs of sunburn can take a while to develop. The mother provides no photographs of the child’s sunburn. By this stage she was highly concerned about the father’s care of Michael and the absence of proof undermines her allegation. It is highly unlikely that the child was sunburnt during contact. Later that evening the mother took Michael to Bendigo Hospital arriving in the emergency department at about 9.30 pm. Michael was assessed and allowed to return home.
[6] Annexure D father’s affidavit
[7] Exhibit D
Michael was again taken to Bendigo Hospital on 19 November 2003, with the mother complaining that he was in severe pain and produced a green nappy. She formed the belief that he had been fed during contact. The paternal grandmother confirmed the child had not been fed during contact in Melbourne. The mother alleges that a doctor told her that another explanation is that Michael had possibly contracted a bacterial infection from the father’s colostomy. The hospital took stools for testing, the results of which were negative for any infection. Again Michael was assessed and allowed to return home.
On 22 November 2003 the mother and children left Melbourne and moved to Wollongong where they resided temporarily with her aunt. With her mother’s assistance the mother unsuccessfully attempted to locate rental accommodation in the Nowra area. While she remained in Nowra the parties agreed to vary the ordered contact arrangements to address logistical issues. Contact was reduced from two hours to one and a half hours. Because she was unable to locate appropriate rental accommodation the mother asked the father to allow her to return to the former matrimonial home. Selfishly he refused. Allowing the mother to return would have caused the father no inconvenience or additional expense. He was living with his parents and had no plans to return. Presented with an opportunity to make a positive gesture which would have promoted his sons needs, he declined, preferring to make the mother’s situation as difficult as possible.
When the mother failed to return to Nowra to live, the father filed a contravention of parenting order application in the Family Court at Sydney.
On 3 February 2004 the court found that the mother breached the interim order to return Michael to the Nowra area by 28 November 2003 without reasonable excuse. The hearing was adjourned until the following day so as to consider varying the Melbourne interim orders. Further orders were made which essentially provide the father with contact twice weekly for two hours. Both parties were ordered to attend mediation and counselling with Unifam’s “Keeping in Contact” program. The mother completed her intake interview; however counselling could not proceed until after this hearing.
Between 3 and 6 February 2004 the mother and children moved into her brother’s home in North Nowra, where they still live.
Within days of final separation the father had been asking the mother to remove her belongings. On 5 February 2004 the mother attended the former matrimonial home to collect her possessions. Before arriving she spoke with local police and instructed her solicitor to advise the father’s solicitor of her attendance. When she arrived, VP, the father’s friend occupying the home called him and he arrived shortly afterwards. Once again an argument developed during which the mother called the police. The police attended and defused the situation. The father permitted the mother to take some of her belongings. She arranged with VP to collect another load of her possessions the next day. In relation to this incident I accept VP’s evidence.
On 18 February 2004 the parties agreed on further parenting orders which enabled contact four times each week for two hours. The orders identified the dates and times for the father’s contact to Michael. Basically contact was to occur:
1. Each Monday and Thursday from 7.30 am to 8.30 am and 5.30 to 6.30 pm;
2. On 29 February and 14 March from 3.30 pm to 5.30 pm; and
3. From 21 March 2004, each Saturday and Sunday from 9.30 am to 11.30 am.
Although the father is entitled to eight hours contact each week, he has not exercised all the contact to which he is entitled. In April 2004 he stopped exercising contact in the afternoons. This is primarily for two reasons. He believes late midweek contact is unsettling for Michael. Secondly, that the times are too difficult. Although designed around the child’s routine they do not suit the father’s.
During contact changeover on 24 April 2004 the mother overheard the father say to Michael “and get you away from your bitch of a mother”. She then contacted Nowra Police and sought their advice and assistance.
On 26 April 2004 the father was arrested[8] at Nowra Police Station and questioned in relations to the mother’s complaint that he had punched her in the stomach a few days earlier. He was released without further action. During cross-examination the mother’s description of a punch did not withstand scrutiny. During contact changeover the father forcibly pushed a nappy bag into the mother. His force reflects his determination to indicate his general antipathy of her. Although regrettable, the force was not sufficient to cause physical harm.
[8] Exhibit I
The father was in hospital between 28 June 2004 and 5 July 2004. During his admission the mother twice took Michael to visit.
The father has not exercised mid week contact since his discharge from hospital. The cessation of mid week contact is entirely the father’s decision.
On 7 December 2004 this court made further interim contact orders. These orders provided for a gradual extension of contact consistent with the child’s increased ability to separate from his primary carer. These orders are set out below:
1. All prior contact orders are discharged.
2. The father shall have contact to the child MICHAEL born in 2003 as follows:
(a) Commencing Saturday 11 December 2004 each Saturday from 9 am until 1 pm.
(b) Commencing Sunday 19 December 2004 and each alternate Sunday thereafter from 9 am until 1 pm.
(c) Commencing 22 January 2005 each Saturday from 9 am until 3 pm.
(d) Commencing 30 January 2005 each alternate Sunday from 9 am until 3 pm.
3. Orders 2(a) and (b) expire at 1 pm 16 January 2005.
4. For the purpose of contact the mother or her nominee shall deliver the child to the father at his home at the commencement of contact and the father or his nominee shall return the child to the mother at her home at the end of contact.
5. The parties shall agree on a family general medical practitioner who will be the child’s primary treating doctor. To the extent possible the parties shall ensure that the child attends their agreed treating doctor accompanied by one of the parties, except in the case of an emergency.
The evidence
At trial the applicant father relied upon the following evidence:
· His affidavit sworn 19 July 2004 and filed 20 July 2004 as well as his oral evidence.
· His financial statement sworn 19 July 2004 and filed 20 July 2004.
· Affidavit of VP sworn 16 July 2004 and filed 20 July 2004 and her oral evidence. This witness was not cross examined and I accept her evidence.
· Affidavit of GW (the father’s father) sworn 16 July 2004 and filed 20 July 2004 and his oral evidence.
· Affidavit of SW (the father’s mother) sworn 19 July 1004 and filed 20 July 2004 and her oral evidence.
At trial the respondent mother relied upon the following evidence:
· Her affidavit sworn 18 July 2004 and her oral evidence.
· Her financial statement sworn 8 July 2004 and filed 14 July 2004.
· Affidavit of GS sworn 8 July 2004 and her oral evidence.
Both parties relied on voluminous exhibits.
As part of its trial preparation, the court appointed Dr Chris Rickard-Bell court expert to investigate and report upon matters regarding Michael’s residence and contact. Dr Rickard-Bell conducted interviews on 11 June 2004, which interviews included the parties, Michael, Timothy and MS and GS. In his report[9] Dr Rickard-Bell made the following recommendations:
I recommend that the child remain in the primary care of the mother. She is caring for him competently and I believe she needs to be able to let the child progress to developing a secure attachment to her. She needs to be able to continue breast-feeding as long as she and the baby feel is natural. In addition it is ideal for the baby to be close to his sibling to become close to him as well. I believe that the mother does support a relationship between the father and the child.
The father needs to have regular contact with the child. The reality of trying to have a contact arrangement with a young baby is that it is extremely difficult at best. Young children need a lot of care and sleep. Frequent short periods of time are best; such as one or two hours several times a week. These contact visits need to be balanced with the animosity between the parents and difficulty with hand overs.
I recommend that neither parent criticise the other parent in front of the child. The mother needs a lot of support.
The father needs to gain some more knowledge about the physical and emotional development of babies so he has realistic expectations of the child and so he is able to be of more support to the mother.
As the child develops he will be able to spend increasing amount of time during the day with the father. It needs to be recognised that when the child is about eighteen months of age that he will probably start to become increasingly fussy about his mother and clingy to her. This should be understood as normal separation anxiety.
It can be difficult to judge when a child might be ready for overnight contact. It needs to be at a time that the child can comfortably cope with separation from the mother, which is usually about three or four years of age if he has developed a good relationship with the father.
[9] Exhibit E
Dr Rickard-Bell was cross-examined at length. At the end of his cross-examination his primary recommendation that Michael live with the mother had not changed. In his report and oral testimony Dr Rickard-Bell demonstrated a sound understanding of the parties, their circumstances and issues in these proceedings. His observations of the parties’ accord with my own. The father’s counsel cross examined Dr Rickard-Bell for quite some time concerning the possibility that the mother suffered from generalised anxiety disorder, borderline personality disorder or possibly Munchausen by proxy. Dr Rickard-Bell rejected these suggestions. He helpfully explained that the mother, like many mothers with newly born babies was anxious and possibly obsessively concerned about her baby. However, while there is some evidence she has some personality vulnerabilities she is coping as a mother. Concerning her over reactions to the father and his family, he explained that it is important to understand that she has been trying to protect herself from a relationship with a dominating and demanding partner. He does not accept that the mother was unreasonably trying to deny contact, and generally considered her approach to contact age appropriate.
Dr Rickard-Bell explained that the father carries a lot of underlying anger related to his chronic illness. He is very close to his parents and has a sense of being a special person. During a joint session with the mother, the father was perceptively angry, in his tone and expression. He was forceful and overbearing towards her.
Dr Rickard-Bell explained that father’s often feel excluded following a child’s birth. Most accept for a period they are on the periphery of the mother-child relationship. The father’s complaints about breast feeding symbolise how profoundly he feels excluded. His evidence that the father has difficulty comprehending the babies stage of development was particularly compelling as is his evidence the father has difficulty tuning into his new sons needs. Basically the child was his and the father had difficulty accepting that he could not have the child when he wanted.
Dr Rickard-Bell is an experienced child, adult and family psychiatrist well known to the court. He is frequently retained by parties to complete assessments such as this. As will be apparent, I am satisfied that his opinion should carry considerable weight.
The father’s circumstances and proposals
The father resides with his parents, SW and GW in their home at Culburra. He has lived with his parents since separation. Until its recent sale the father allowed friends to live in the former matrimonial home. The home sold for $300,000. The father is employed full time with Horizon Credit Union as a loans officer. He has worked with Horizon Credit Union since 1998. Upon the parties commencing cohabitation he transferred from Wollongong to Nowra, where he still works.
Should his residence application succeed, the father plans to take twelve months paternity leave. His employment conditions entitle him to twelve months paid paternity leave and he is able to take such leave. During the first year that Michael resides with him, the father will continue living with his parents, primarily so that he has family support. At the end of Michael’s first year living with him, the father will establish another home independently of his parents. At that stage Michael would start day care and the father resume full time work. He plans that once Michael turns 3 years old he would start attending a childcare centre or preschool. He has made arrangements with his mother that she will collect Michael between 4 pm and 4.30 pm each day and care for him until the father has finished work.
The father proposes that Michael attend St Michaels Primary School and he will take three months long service leave coinciding with Michael’s first term at school. If it becomes plain that Michael is unable to cope with the father working full time, the father will seek part time work with his current employers. If that arrangement is not available or Michael needs greater care from his primary care giver the father will resign from paid employment and stay at home, at least until Michael starts school. If he works part time or gives up paid employment, there is a commensurate reduction for the need for Michael to attend day care.
The father has Crohn’s disease. Crohn’s disease is a debilitating bowel disease which is more commonly known as ulcerative colitis. In order to increase his fertility, once the parties decided to have a child, the father ceased medication prescribed for Crohn’s disease. His decision to cease taking Methotrexate was made contrary to his doctor’s advice. Within three months of ceasing medication, the mother fell pregnant. During her pregnancy the father underwent radical surgery during which his large bowel was excised. Potentially, this surgery would relieve him of the symptoms which he had suffered since he was about seventeen years old. Surgery took place on 21 July 2003. After this surgery the father still possessed a rectal stump which continued to cause him difficulty. He had further surgery and the rectal stump has been removed. As a result of surgery, the father has a colostomy. The father is extremely conscious of his hygiene. His colostomy does not interfere with his capacity to care for Michael and there is no risk to Michael that arises from his father’s illness.
The father believes that Michael’s long term interests are best met living with him. He fears that if Michael resides with his mother he will forever need to fight for any relationship with his son. During the time that the parties cohabited he saw that Timothy had virtually no contact or relationship with his father. He is determined that he and Michael will not be deprived of a strong father/son relationship. It is his belief the mother has systematically and relentlessly acted against him having a relationship with Michael. He denies that he was violent towards her or that she had reason to relocate to Victoria and later involve police in their dispute. He claims the mother continues breastfeeding at a frequency that is unnecessary from Michael’s point of view and designed to limit his opportunity to have contact. The father alleges that the mother has a personality disorder and fears that she presents Michael to doctors and hospitals with fictitious symptoms, trying to build up a case that he is neglectful of Michael and that he refuses to cooperate with the child’s routine.
Michael is the father’s first child and he has little experience in caring for babies. To a considerable extent the father is reliant on others for information concerning child development and appropriate responses to the child’s capacity to separate from its primary carer. If his residence application fails, the father wishes to exercise considerably more contact than the mother proposes or which the current orders provide. He believes that by the time Michael is 2 he should be exercising block periods of contact with him of two weeks duration. The specific structure for his contact is identified in his counsel’s written submissions. These orders are set out below:
1.That all orders concerning the care of the child MICHAEL born in 2003 be discharged.
2.That both parties shall do all things necessary to:
(a) Cause the child of the marriage born in 2003 to be known by the name MICHAEL J W.
(b) To alter the registration of the child’s birth to reflect that his name is MICHAEL J W.
3.That both parties shall retain joint parental responsibility for the child’s long term care, welfare and development.
4.That each party shall be responsible for the child’s day to day care, welfare and development whilst the child is in their care.
5.That the child shall reside with the father with the mother to have reasonable contact with the child or, in the alternative the child shall reside with the mother and the father shall have contact with the child as follows:
(a) From the date of these order until 1 February, 2005 each Saturday and Sunday from 9:00 am until 5:00 pm.
(b) From 1 February, 2005 until 19 August, 2005 in each week from 9:00 am Saturday until 5:00 pm Sunday.
(c) From 19 August, 2005 and continuing thereafter from 5:30 pm each Friday until 8:30 am the following Monday morning provided that in years ending with an even number on weekends where the Monday is a public holiday contact shall conclude at 8:30 am on the Tuesday in lieu of the Monday.
(d) On the Mother’s Day weekend in each year the father’s contact with the child shall conclude at 5:00 pm on the Saturday.
(e)
On the child’s birthday in years ending with an odd number from 5:30 pm on 18 August until 5:00 pm on 19 August provided that should the father be obliged to work on
19 August then the child shall return to the mother’s care at 8:30 am on that day.
(f) On the father’s birthday each from 5:30 pm on the preceding evening until 5:00 pm on his birthday provided that should he be obliged to work on that day the child shall e returned to the mother’s care at 8:30 am.
(g) In years ending with an even number from 5:30 pm on Christmas Eve until 5:00 pm on Christmas Day and in years ending with an odd number from 5:00 pm on Christmas Day until 5:00 pm Boxing Day.
(h) That should Christmas Day and Boxing Day fall on a weekend when the father would otherwise have contact with the child then the mother shall have contact with the child in years ending with an odd number from 5:30 Christmas Eve until 5:00 pm Christmas Day and in years ending with an even number from 5:00 pm Christmas Day until 5:00 pm Boxing Day.
(i) If the mother’s birthday falls on a day when the father would otherwise have contact then the father’s contact with the child shall conclude at 5:30 pm on the day before the mother’s birthday and if the mother’s birthday is a Saturday then the father’s contact shall recommence at 5:00 pm on that day.
(j) That once the child has attained the age of two years then, provided that the father gives to the mother four weeks notice in writing of his intention to do so, he may have contact with the child for two periods not exceeding two weeks in duration provided that the father has leave from work during the whole of that period.
(k) That provided that the mother gives the father not less than four weeks written notice contact between the child and the father may be suspended for a period of not more than four weeks in any year.
6. That if the child, Michael, is not in the mother’s care in accordance with these orders on the birthday of the child, Timothy, then the mother shall have the child, Michael, in her care from 9.00am to 5.00pm on that day.
7. That the husband shall pay to the wife within 28 days from the date of these orders the sum of $20,000.00 by way of lump sum property settlement.
8. That from the sum payable to the wife pursuant to the preceding orders the husband shall be entitled to deduct the following sums:
(a) The sum of $4,937.45 being the costs ordered to be paid by the wife pursuant to the orders dated 4 February, 2004.
(b) The sum of $2,200.00 being one half of the cost of joint expert’s fees paid by the husband on behalf of both parties.
9.That unless otherwise specified in these Orders each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
10.That each party shall be liable for payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by that party in accordance with these orders and shall indemnify and keep indemnified the other party in relation thereto.
11.That the respondent pay the applicant’s costs of and incidentals for these proceedings.
The mother’s circumstances and proposals
The mother, Timothy and Michael live in a home her brother owns at Nowra. This is a three bedroom home which is sufficient for Michael’s needs. Presently, the mother is not working in paid employment. The mother’s income comprises a combination of social security payments and child support. She devotes her time to the children’s care and is studying off campus at Deakin University, Geelong. In 2002 the mother enrolled in a Bachelor of Arts Police Studies degree which she discontinued after two semesters. She has re-enrolled and studies as a distance student using Wollongong University library for her resources. Presently, the mother has no plans to return to paid employment. She hopes that she will complete university studies by the time Michael is starting school. At that time she will look for paid employment in criminology or police support.
When the parties separated the mother planned to relocate to Victoria. Having moved to Geelong she sought orders predicated upon the basis she and the children would remain in Victoria. Prior to this hearing commencing, the mother abandoned her relocation application. She strongly resists the father’s application that Michael live in Nowra and says that she wishes to live in Wollongong. In Wollongong she has access to a university campus. Her great aunt resides in Wollongong and she and the children have their medical specialists in the Wollongong area. Wollongong is approximately a one hour drive from Nowra. Nowra is approximately twenty minutes drive from Culburra.
The mother’s approach to contact has been somewhat confusing. She has filed numerous suites of orders and when the hearing started proposed a contact regime predicated upon the child’s body weight. Simply put as the child put on weight, contact would increase. At the end of the hearing, she provided a minute of parenting orders[10] which sets out the orders sought. These orders are set out below:
[10] Exhibit A
1.That the child MICHAEL (born in 2003) reside with the Wife.
2.That, subject to Orders about specific issues herein, each party have sole responsibility for making decisions about the day-to-day care, welfare and development of the child when he is with each party respectively.
3.That the Husband have contact with the child as follows:
(a) Until 19 February 2005:
(i) Each Saturday from 9am to 11.30am.
(ii) Each Tuesday and Thursday from 5.30pm to 6.30pm.
(b) From 19 February 2005 to 19 August 2005
(i)Each Saturday from 9am to 1pm.
(ii)Each Tuesday and Thursday from 5.30pm to 6.30pm.
(c) From 19 August 2005 to 19 February 2006
(i)Each alternate Saturday and Sunday from 9am to 1pm.
(ii)Each Tuesday and Thursday from 5.30pm to 6.30pm.
(d) From 19 February 2006 to 19 August 2006
(i)Each alternate Saturday and Sunday from 9am to 3pm.
(ii)Each Tuesday and Thursday from 5.30pm to 6.30pm.
(e) From 19 August 2006 to 19 November 2006: -
(i)Each alternate weekend from 12noon Saturday to 12noon Sunday.
(ii)Each Wednesday from 5.30pm to 6.30pm.
(f) From 19 November 2006 to 19 February 2007:
(i)Each alternate weekend from 10am Saturday to 4pm Sunday.
(ii)Each Wednesday from 5.30pm to 6.30pm.
(g) From 19 February 2007 to 19 February 2009:
(i)Each alternate weekend from 9am Saturday to 5pm Sunday.
(ii)Each Wednesday from 5.30pm to 6.30pm.
(h) From 19 February 2009:
(i)Each alternate weekend from Friday after school until the commencement of school on Monday.
(ii)Each Wednesday from 5.30pm to 7.00pm.
(iii)For one half of each NSW school holiday period (the second half unless otherwise agreed) provided that the Husband is on leave from his employment during such periods.
(iv)That weekend and midweek contact be suspended during school holidays each year.
(v)Such further times as the parties may mutually agree.
(i)On Christmas Day 2004 and 2005 from 11am to 2pm.
(j)From 2pm Christmas Eve until 2pm Christmas Day in 2006 and in even numbered years thereafter. From 2pm Christmas Day until 2pm Boxing Day in 2007 and in odd numbered years thereafter.
(k)That on Father’s Day in 2004 the Husband have contact to the child from 9.00am to 1.00pm in lieu of the Saturday set out in 3.1.1 hereof.
(l)That despite anything else in these Orders, after 19 August 2005 the Husband shall not have the child during the weekend that includes Mother’s Day, but in substitution the Husband will have the child on the following weekend.
(m)That despite anything else in these Orders, after 19 August 2005 the Wife shall not have the child during the weekend that includes Father’s Day, but in substitution the Wife will have the child on the following weekend.
4.That the Husband collect and return the child from and to the Wife’s residence or such other place as agreed.
5.That each party shall not denigrate either party or members of the other party’s family to the child or in the presence of the child or at all.
6.That each party will use his or her best endeavours to ensure that no other person denigrates either party or members of the other party’s family to the child or in the presence of the child.
7.That the Husband attend an Anger Management Course and Parenting Skills Course within 4 weeks of the date of these Orders.
Basically, the mother proposes that Michael continues to live with her and that his contact with his father increases gradually. The catalyst for increased contact centres on the child being weaned in his and the mother’s time frame and his capacity to separate from her. She believes the father’s program for contact is ambitious and inconsistent with the child’s developmental needs and the father’s capacity to care for a baby and toddler. The mother made a large number of exaggerated claims concerning the father and his parents. Without proper foundation she accused the father’s parents of emotional and psychological abuse of Timothy. She claimed that they conspired with the father so that he could assault her with them pretending that they knew nothing of the assault. She accuses the father and his mother of disregarding her instructions that they not feed Michael other than as she directs and after contact bathes Michael to remove “irritants” from his clothes and skin. The mother has presented Michael to doctors and hospitals after contact, making claims about the child’s health which often are not confirmed on examination. Until the father succeeded in his contravention application, the mother made contact between Michael and the father as difficult as possible. However, since February 2003 she has generally complied with orders for contact, and, in spite of her misgivings, has enabled the child and father frequent contact.
The mother’s former partner YM lives in Darwin. In one set of orders, the mother proposed that the father’s contact to Michael would be suspended annually for up to eight weeks so that Timothy could have block contact with his father. She reinforced the suggestion that Timothy and his father have regular contact saying in her affidavit, “He (Timothy) has contact with his father at times as agreed between us, which is usually block period during the year as his father lived in Darwin”. This evidence bears little relationship to reality. Timothy has virtually no relationship with his father. He did not see his father during 2002 or 2003. On the few occasions that Timothy has seen his father the mother has insisted that she supervise. Fortuitously, with this hearing looming and the mother acutely aware that the father criticised her attitude to both children’s relationships with their fathers, the mother took Timothy to YM’s family’s celebration at Newcastle. Over three consecutive days Timothy had contact with his father at a large family gathering. I have real misgivings that but for the scrutiny that her actions are under in these proceedings this contact would not have occurred. However, I do not have enough information concerning YM’s interest in Timothy to determine whether Timothy’ lack of relationship with his father is driven by the mother’s attitude, his father’s lack of interest, difficulties arising because the parties live so far apart or a combination. What is clear, however, is that the mother’s evidence concerning Timothy’ relationship with his father was significantly misleading. I am satisfied deliberately so.
Credit
This is one of those unusual matters in which it is necessary and proper to make credit findings. Both counsel highlighted deficiencies in the parties’ evidence in a number of material respects. Not as a consequence of inadvertence or anxiety, but rather because both deliberately attempted to mislead the court. Both parties impressed me as having at least average, probably above average intelligence, and I do not accept that important differences in their oral and written evidence and within their oral testimony on significant matters are mistakes. Whilst I accept that people can have genuinely different perceptions and recollection of the same events the parties often diametrically different accounts of relatively recent events, reflects either wilful blindness or an almost pathological ability to see the other party in anything other than a negative light.
I have already made findings concerning the mother’s misleading evidence concerning Timothy’ relationship with his father. Only with persistent cross-examination was it clear that Timothy has virtually no relationship with his father and the mother’s evidence that Timothy usually exercises block contact during the year nothing more than entirely fabricated. When the mother arrived in Victoria she told domestic violence workers that she feared for her safety and the safety of her children. Similarly, she told the Family Court on the interim applications that she was afraid the father may attempt to harm her and the children. During cross-examination she agreed that neither the father nor his parents would knowingly harm either child. The mother told the Family Court that she was living with her sister in Geelong, when she was actually moving between Geelong and Geelong and had not settled anywhere in Victoria. In the latter part of 2003 and early 2004 the mother repeatedly took Michael to hospitals and doctors requesting that he is examined. These examinations invariably occurred shortly after contact with the mother complaining that the child may have been fed or somehow inadequately cared for during contact. None of the hospitals or doctors gave evidence that corroborates the mother’s claim concerning the child’s symptoms or their recommendations. Eventually, Michael was referred to Dr Peter Kristidis, consultant paediatrician at Oak Flats.
In his report to the mother’s general practitioner, Dr Tony Irwin, dated 19 December 2003[11] Dr Kristidis says Michael appears to be a healthy thriving infant. The mother told Dr Kristidis that the father has overcome an alcohol abuse and illicit drug use problem. The mother says the father explained to her that prior to their relationship he had used illegal drugs and alcohol. She has no direct experience of this behaviour herself. Dr Kristidis saw Michael and the mother again on 29 March 2004. He reports that the mother expressed concern that Michael has recurrent diarrhoea, which usually occurs after he returns from contact. Again, stool samples were taken which returned clear. At his second consultation, again Dr Kristidis says Michael is healthy and well nourished. Developmentally he is normal, with good head control and at 7 and a half months old is sitting unsupported, can roll over, vocalises and is almost babbling. Dr Kristidis saw Michael again in late April 2004[12]. In this report to Dr Irwin, Dr Kristidis says, “Michael had a stool sample done last week which was normal. Michael’s mother reports now that Michael has also had bilious vomiting recently. She reports this occurs when he comes back from access visits with his father. If the symptom of bilious vomiting is true then intestinal pathology such as malrotation needs to be ruled out. I spoke with Michael’s mother and will order abdominal x-ray and barium study. I will also order a further stool sample. I would trust that symptoms are not being fabricated as a means of denying father access to Michael. One does need to keep an open mind however to all possibilities”. Dr Mark Chapman conducted the x-ray and barium meal examination. No abnormalities were detected.
[11] Exhibit O
[12] Exhibit E
The lack of corroborative evidence for any of the mother’s many accusations about the child’s diarrhoea, vomiting, sunburn, dehydration and pain is inconsistent with the gravity of her concerns. While the child may have occasionally had mild discomfort, a runnier than usual nappy, slightly raised temperature, basically short lived symptoms which unless observed immediately are unlikely to be later detected, there is no reliable evidence that the child’s symptoms were ever as grave as the mother alleges. The complete lack of corroborative medical evidence undermines the integrity of her evidence and satisfies me that the mother has exaggerated mild symptoms. Her motivation for doing so probably centres upon her belief that the father shows such disdain for her desire to breastfeed that she felt unable to trust him not to give the child formula and solids. Thus, she exaggerated symptoms in order to obtain medical evidence to corroborate her suspicions. I give considerable weight to these medical reports. The reports confirm that Michael is thriving and his physical needs are being competently met. Both in his mother’s care and during contact.
On an inconsequential issue, concerning receipt of the father’s solicitor’s letter dated 10 September 2003, the mother constructed an elaborate lie in an attempt to deny knowledge of the letter. Eventually, she was forced to concede that the only way her solicitors knew to send correspondence dated 15 September 2000 to Marriott & Oliver was because the mother had given them the earlier letter.[13] Of course this means that she had the Marriot & Oliver letter prior to 15 September 2003.
[13] Exhibit L
The father claimed that the mother accused him of deliberately poisoning Michael. Eventually, he was forced to concede that she did not say this. SW agreed no such statement was made. More relevantly, the thrust of the father’s case is the mother’s refusal to allow him contact with the child. Yet, he failed to disclose that the mother offered additional contact, which he exercised. He failed to disclose that he gave up mid week contact and that he exercised less contact than he was entitled to. Not because of the mother’s refusal to comply, rather, because he decided against it. These deliberate non-disclosures are as telling as the mother’s deliberate exaggerations. In these instances the father tried to construct a case the central features of which he knew were misleading.
Relevant law – residence and contact
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act. (1997) FLC 92-755
Determining the child’s best interest
Michael is a happy, apparently settled and healthy baby. He meets all of his milestones in accordance with his chronological age.
Dr Kristidis and Dr Rickard-Bell report that he is well cared for. This indicates that on a day by day basis, without needing additional assistance, the mother is well able to meet the child’s physical and emotional needs. Because Michael has lived with his mother all of his life and she cares well for him, it is not surprising that during his observation of them, Dr Rickard-Bell observed that Michael related well to his mother and she responded appropriately to him.
Dr Rickard-Bell’s discussions with the mother as well as his observations of her with Michael led him to conclude, “Jeanette was a capable and caring parent”.
At only 10 months of age, Michael is too young to express attachment behaviour. However, based on his observations and good understanding of the facts in this case, Dr Rickard-Bell concluded that Michael appeared to be developing a bond with both parents. Attachment and bonding is one of the pivotal issues in this case. I agree with Dr Rickard-Bell, “The baby needs to develop a secure, primary attachment with one parental figure. This relationship will determine the future relationships with the child. Once the child has developed a secure relationship with the primary parental figure then he is in a position to form other secure relationships or secondary attachments”. Unlike the father, the mother has demonstrated a good understanding of the child’s stages of development and his development needs. Presently, Michael and the mother are well advanced in the establishment of a secure parent/child attachment. The mother is attached to Michael and the child is moving through a natural progression towards being securely attached to her. Unless the child is given the opportunity to continue to develop his attachment to, in this case his mother, Michael’s capacity to form other secure relationships or secondary attachments is seriously compromised. Essentially, if the baby’s biological drive to secure primary attachment is interfered with, then future relationships are highly likely to be fraught with difficulty. The father’s residence proposal seriously jeopardises Michael’s capacity to securely attach to a primary parental figure. Changing Michael’s circumstances at this critical stage in his development is inconsistent with his primary need for a secure relationship with his mother. If the situation had been reversed and Michael lived almost exclusively with his father since birth, thrived in his father’s care and was developing a secure relationship with his father as his primary parental figure my findings would be different. The point is that attachment is not a gender issue per se. My findings reflect this particular child’s circumstances. Specifically, that he has lived with his mother all of his life and is thriving in her care. This is a weighty consideration in favour of the mother’s residence and contact applications.
The father appeared to have only a limited understanding of relationships. He was dismissive of Michael’s potential relationship with his half brother Timothy. Having considered the ramifications for Michael of separation from his half brother, the father effectively saw separation as collateral damage and barely a relevant consideration. The father enjoys a good relationship with his brother, yet does not have the necessary introspection to consider similar benefits for Michael. There is no presumption that siblings should live together. However, there are obvious advantages to children of doing so. Living together maximises their sense of identity as siblings. Sibling relationships are of lifelong significance. By living together, children have shared experiences that enhance the intimacy and strength of their attachment to each other. Hence the quality and significance of their relationship as siblings. It cannot be ignored that in the usual scheme of life, sibling relationships out last parent/child relationships. Growing up together rather than as effectively an "only child" most of the time, siblings can enjoy a more child-focussed life. I do not mean to say that children who grow up as only children are deprived of the joy that comes from being with other children, but where they have siblings their childhood is enriched by growing up together. The children are both boys and close in age. It is likely that they can have a close sibling bond if they live together. Apart from living in the same home, living together the children are more likely to attend the same school and have friends in common. Living in separate homes this is much more difficult to achieve.
Perhaps the father’s lack of concern for the sibling relationship is a reflection of his emotional neediness. He is doted on by both his parents and in his relationship with the mother was emotionally immature. For example, when the mother complained of pain during her pregnancy this was dismissed as attention seeking. Yet the father knew the mother had a horrific delivery of Timothy. Her pain was caused by adhesions and was real not feigned. When she asked that Michael be born by caesarean section, he accused her of being inconsiderate and attention seeking. Once again, he ignored her prior birthing experience and his accusation that she put the child’s life at risk is offensive. He criticised the mother for trying to limit the number of visitors to the delivery room and hospital after Michael’s birth. The father called her a “bitch” not long after Michael was born. This is an epithet he has continued to use to her and about her. Before she left hospital, the mother knew that the father sought residence of Michael. From the outset, he has complained to her that she is an unfit mother and psychologically unsuited to care for Michael. Even though he has seen Michael thrive, he told Dr Rickard-Bell that the mother could not have contact until she was certified psychologically fit to do so. Considered collectively, these examples reinforce my comfortable satisfaction that the father is emotionally immature and lacks the capacity and self discipline needed to consider the mother and, relevantly the child’s individual emotional needs. He has an almost breathtaking inability to consider the probable effect on Michael of separation from his primary care giver and half brother. Although it sounds harsh, I am not satisfied that the father has the emotional capacity to understand and address Michael’s emotional and psychological needs, either immediately or long term. There is too high a risk that in the father’s care should Michael’s emotional and psychological needs clash with the father’s, the father will give priority to his own. This weighs against the fathers residence application and aspects of his contact application.
Even if the father was emotionally attuned to Michael’s emotional and psychological needs, because he has not been the child’s primary care giver in the short term the father does not have the capacity to meet the child’s emotional and psychological needs. Michael is too young for any explanation concerning separation from his primary carer. He has not been in his father’s care for more than a few hours at a time and although the child may eventually accept his father’s care, the process is likely to be highly distressing to the child. Unless there are strong reasons associated with the child’s welfare, forcing this distress on the child is counter intuitive. These findings carry considerable weight and are relevant to both residence and contact.
Dr Rickard-Bell preferred the mother’s general approach to contact. I agree her approach is consistent with the child’s stages of development, including his capacity to separate from his primary carer. I accept Dr Rickard-Bell’s evidence that during its second year, a toddler is usually made anxious and distressed at separation from its primary carer. Using the vernacular, the thrust of
Dr Rickard-Bell’s evidence concerning contact structure, is that for young children if one proceeds in haste, parent and child repent at leisure. If the pace of contact is too rapid and separations from primary carer too lengthy, the child’s attachment is disrupted. There is a real risk the child may increasingly reject the person who is taking him or her away from their primary carer. The father’s contact scenario demonstrates once again his inadequate understanding or regard for Michael’s emotional needs. The father’s proposal that by the time Michael is 2 years old he will exercise two weeks block contact is revealing. This indicates that even with the benefit of Dr Rickard-Bell’s advice, the father is unable to understand and implement compelling expert opinion.
To a considerable extent, the father’s case rests on his hypothesis that the mother suffers some form of psychiatric or personality disorder. In his counsel’s submissions reference is repeatedly made to Dr Rickard-Bell’s comment to the effect that the mother displayed obsessive characteristics and was overly anxious after Michael’s birth. However, Dr Rickard-Bell opined that these characteristics are not uncommon in mothers of new babies. He did not agree that the mother suffered a personality disorder or psychiatric illness. Importantly, when the father’s counsel’s cross-examination was complete and Dr Rickard-Bell had been given the opportunity to review transcript of the mother’s oral testimony, his original opinion that the mother competently cares for Michael and is able to meet his long term needs remained unaltered. It is a difficult proposition to successfully argue that the court should accept an integer of part of a psychiatrist’s evidence but reject the psychiatrist’s primary opinion. This is particularly so when the court is asked to accept part of the psychiatrist’s evidence concerning mental health when the expert’s ultimate opinion takes into account the mental health assessment. In essence, the father’s claim about the mother’s personality and mental health, even if accepted by Dr Rickard-Bell, does not result in a conclusion that these matters place Michael’s emotional, physical or intellectual wellbeing at risk.
The period immediately following Michael’s birth was highly traumatic for both parents. The father craved intimate contact with his son. The mother was dealing with major surgery, a new baby, recently failed marriage and a formidable husband. At only 25 years of age it is not surprising that she panicked on Father’s Day 2003 and leapt to a conclusion that the father would do everything within his power to take the baby. Whilst her panic explains her flight to Victoria, misinterpretation of health issues and subsequent misrepresentation of them, it does not mean that her conduct should be disregarded. The question that must be considered is whether these early months of panicky conduct are likely to continue. My assessment is that future conduct of this type is unlikely. Although the mother was tardy moving to Nowra, I wondered whether those who have considered this matter previously realised how difficult it would be for the mother to find appropriate housing for herself and children. Subsequently, with an onerous contact regime the mother has complied and where contact has been missed in recent times it has been the father who has not exercised ordered contact. The mother has done more than merely pay lip service to Michael’s relationship with his father. Through regular contact, she has demonstrated a growing appreciation of the importance of compliance with court orders and commensurate regard for the child’s relationship with his father. At the same time, the frequency of Michael being presented to doctors and hospitals for examination has fallen away. On balance, I am satisfied that the mother will continue to promote contact between Michael and the father and that their relationship will be nurtured, not undermined.
Should the father have residence, he also will ensure contact between Michael and his mother. However, I have real misgivings about the father’s capacity to refrain from making critical remarks to Michael about the mother. Even during the joint consultation with Dr Rickard-Bell, when the father knew he was being assessed and a report provided to the court, the father was unable to refrain from intimidating and belittling the mother. His behaviour in the joint observation session with Dr Rickard-Bell corroborates to a considerable extent the mother’s evidence that during contact changeover he has called her offensive names and pushed and bumped her. It does not assist the father’s denials of this behaviour that his parents, who are present during contact changeover, have not witnessed it. The father is savvy enough to hide his unpleasant aggression so that it is only seen by the mother. Whilst there is a risk that this style of behaviour may continue, it overstates the mother’s evidence to categorise this behaviour as domestic violence. While there is a risk that the father will continue to denigrate the mother, it is highly unlikely that there will be violence.
This separation may have been easier for both parties if contact changeover had been handled by others and the parties avoided meeting regularly. With time and distance, it is likely that some of the tensions between them may have dissipated. Had the mother been protected from the father’s anger, her inclination to flight and make ill-founded allegations in the months after separation may have been avoided.
The father opposes the mothers plan to live in Wollongong. He says this is too far away and makes contact unnecessarily difficult. However the distance between Wollongong and Culburra is only one hour greater than Culburra and Nowra. This means that on the father’s proposal the child’s total return travel time is about 40 minutes each contact occasion. On the mother’s it is about 2 hours and forty minutes. If one parent does all of the travelling the travel time doubles. The mother does not have a car and if the parties live in Wollongong and Culburra the father will do all the travelling. Public transport is difficult in the area and the mother’s lack of transport means that she cannot assist with the longer distance travel. One person doing all the driving will take about 6 hours driving for each contact occasion.
The mother has the right to live where she chooses. However that right “Must defer to the expressed paramount consideration, the welfare of the child” U v U (2002) FLC 93-112 at par 89. While contact is limited to relatively short day time contact, spending so much of it travelling to and from the mother’s home undermines its success. Particularly while the child is very young. If contact is made too onerous, the child’s capacity to enjoy contact and thus his time with the father is potentially undermined. Such a circumstance is likely to undermine their relationship. However as the child gets older his will find travelling less tiring and his capacity to travel between Wollongong and Culburra will materially improve. I am concerned that these parties are unlikely to cope with living in the same area long term. Putting distance between them minimises the prospect of chance sightings and impromptu arguments.
I consider that living in the same community indefinitely is likely to reduce the chance that the parties may reach a reasonable understanding as parents. Presently both are suspicious about the other and routinely jump to the worst conclusions. Long term living twenty minutes apart is likely to promote disharmony and make co-parenting considerably more difficult. Timothy starts school next year, and although his interests do not drive the outcome of these proceedings they are a relevant consideration. Changing schools can be disruptive to a child’s education. It is far preferable that Timothy is able to start kindergarten at a school he will be able to continue to attend. By the end of this year Michael will be old enough to make the return journey between Wollongong and Culburra without contact being lessened because of it. The duration of contact will have increased. Although he may sleep in the car during the return journey, this ought not to reduce his enjoyment of contact before the return trip. Starting 2006 the mother will be able to move to Wollongong. With the mother living in Wollongong the parties will have reasonable privacy and hopefully both will embrace the opportunity to move on in their lives. As well, she will be able to pursue her studies using the local university library. Holding her back any longer would be an injustice and by that stage there are no adverse impacts to the child’s relationship with his father. One cannot overlook the father has abandoned mid week contact even though the parties live in reasonable proximity.
The December 2004 orders require the mother to deliver the child at the start of contact. Because this involves public transport or making arrangements with other people to drive her, this arrangement was appropriate for only a short time. I wanted the mother to appreciate that she needed to make a real effort in relation to contact. With winter approaching it is inappropriate to continue this arrangement. It is too hard on the children to expect them to travel by public transport on winter mornings when there is another appropriate option. The father has the available time and exclusive use of a reliable motor vehicle. Thus he will take responsibility for collection and returns for contact. Presently he brings his parents with him for contact changeover. Given the mother’s accusations to date I understand this precaution. As time passes one can only hope that changeover will settle down and the father no longer feel it necessary to involve third parties.
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. To the extent possible I am satisfied that the court should make orders that will be least likely to involve these parties in future litigation. Although there were early instances where the mother failed to comply with orders, she has reliably ensured that the Michael has had contact with the father consistently in accordance with the court’s orders (to the extent the father wished it). When parents have as poor a relationship as these parents have, there is always the prospect that there will be future litigation. I take that into account. In order to promote improved communication the parties will be ordered to attend post order counselling with Unifam. My aim is to improve their communication and enhance their capacity to co-operatively parent their son. The court can only hope that with the proceedings ended the parties may decide to reframe their relationship and introduce a degree of civility and respect presently lacking.
Conclusion, residence and contact matters
Michael has lived all of his life with his mother. He has never lived with his father. The longest period of time Michael has spent with his father is six hours. In his mother’s care, Michael is healthy, settled and obviously thriving. He sleeps and feeds well and has met his developmental milestones without difficulty. The overwhelming effect of the evidence is that the mother capably meets the child’s needs. She is his primary care giver and the process of Michael securely attaching to her and her to him is well advanced. Disrupting this process is fraught with difficulty from the child’s perspective. Potentially, the damage to the child in terms of his future relationships is severe and the benefits for Michael in changing residence are far outweighed by the detriments. The key advantages of changing residence are that Michael will have the opportunity to live with his father and paternal grandparents, all of whom love him dearly. The obvious detriment is that Michael’s attachment to his primary carer will be irretrievably disrupted at a stage when he can least adapt and his long term relationship with his half-brother greatly compromised.
Although the father alleges that the mother suffers from a personality or anxiety disorder, he has not proved to my satisfaction that she does. After a dramatic and panic stricken time immediately following Michael’s birth when she made contact difficult, the mother has demonstrated real commitment to Michael’s relationship with his father. The father has placed her under considerable pressure to agree with contact arrangements that she reasonably considered inconsistent with the child’s stage of development. With respect to him, the father’s proposals for contact have been inconsistent with the child’s age and emotional needs. In themselves, his proposals demonstrated an inability to understand the child’s physical and emotional needs. I have already expressed considerable reservations about the father’s insight into the child’s needs. His approach to contact and the mother’s care of the child has been inconsistent with the child’s best interests. Had he demonstrated greater insight into the child and mother’s needs immediately after the child’s birth, many of the difficulties in those first few months may have been avoided.
Although the mother’s conduct prior to her return to Nowra warrants criticism, since then she has maintained good contact and as time has passed adapted reasonably well to post-separation co-parenting. In the immediate and long term, I am strongly persuaded that Michael’s best interests require that he lives with the mother.
Structuring contact arrangements for a child who has never lived with its other parent and while the child is a baby, is difficult. This is because many of the child’s important developmental milestones lie ahead. Fortunately, in this case the court is structuring living arrangements with two parents committed to their son’s best interests. Both parents have family support and any deficits in the practical aspects of child rearing are consequently minimised. This is less of a consideration with the mother than the father. However, within the families, none of the adults are experienced in managing contact arrangements in separated families. With the benefit of Dr Rickard-Bell’s report, the mother redesigned her contact proposals. Whereas the father maintained a stance inconsistent with Dr Rickard-Bell’s evidence concerning the preferred structure for future contact. Dr Rickard-Bell emphasised that it can be difficult to judge when a child might be ready for overnight contact. Overnight contact needs to start at a time when the child can comfortably cope with separation from its primary caregiver. Provided Michael has developed a good relationship with his father, Dr Rickard-Bell opined that overnight contact would usually be appropriate from about three or four years of age. Although the father wants overnight contact to start much sooner, the evidence does not support overnight contact before Michael is three. The father is devoted to Michael and is motivated to do his best to establish a good relationship with his son. As contact expands, I have no doubt that the father will do his best to ensure contact is as rich an experience as possible. By then, Michael will be used to moving between his parents’ homes and it is likely he will accept overnight contact. Although it will be difficult for him on the first few occasions, it is more likely than not that after a short settling in period, overnight contact will be routinely enjoyable. Thereafter contact grows in accordance with my assessment of the child’s ability to adapt to longer contact with his father. With respect to her I consider the mother’s proposals were too cautious concerning the appropriate pace for longer contact. Before overnight contact starts the duration of contact gradually lengthens as Michael is more used to spending time away from his mother. The duration of contact should not interfere with the mother’s desire to breastfeed. By this stage Michael will be eating regular meals of solids and is well able to have supplementary bottle feeding, assuming that is he is not already fully weaned.
Unnecessarily limiting contact deprives a child and parent of the opportunity to develop and enjoy their relationship. Unless contact develops at a pace consistent with the child’s age and capacity to separate from its primary carer, there is a risk that although Michael will understand who his father is, he will not appreciate his significance as a parent. By this I mean the father will be deprived of the opportunity to actively parent by exercising parental authority in a meaningful way.
Because contact will have occurred on a weekly basis, it is not desirable that it abruptly reduce to longer alternate weekends. Initially, overnight contact will start midday Saturday and finish midday Sunday. Alternate weekends structured this way will be complimented by day time contact on the intervening weekends. As Michael adapts to overnight contact, contact will start earlier Saturdays and finish later Sundays. Eventually, when Michael has started school weekends shall start after school Friday and continue until the commencement of school Monday. This gives the father an obvious opportunity to meet Michael’s school friends and teachers and be more involved in his education than might otherwise be the case. Although the father does not exercise midweek contact he will have the opportunity for contact each alternate Wednesday afternoons. This keeps an appropriate frequency for face to face contact.
Longer periods of holiday contact will be delayed until regular overnight contact is well entrenched. In the year before Michael starts school, the father will have a number of periods of short block contact, leading up to a continuous five day period during the Christmas school holidays immediately before Michael starts school. The child should be ready for slightly longer periods and is likely to enjoy the chance for short trips away with his father. Thereafter, he will share school holidays equally between his parents.
Michael will have the opportunity to enjoy special occasions with both parents. Both parties agree with this approach. Although the father sought contact on birthdays on non contact weekends, I have not ordered it. When I stood back and considered the total impact of all of the contact orders it seemed to me more additions in favour of other special occasions, for mother and father made the arrangements too chaotic. Both parties will need to plan special celebrations not addressed in these orders at times the child is in their care. From Michael’s point of view this is unlikely to have any adverse impact. Until Michael starts school, the mother will be able to suspend contact for two periods of two weeks annually provided she and Michael are on holidays out of the area. Although she seeks one month, this is an unnecessarily long gap between contacts. If I thought Timothy was likely to exercise block contact with his father for as long as one month the mother’s proposal may have succeeded. However, the limited contact to date between Timothy and his father suggests such contact is unlikely. Once regular school holiday contact starts, weekend and mid week holiday will be suspended. Both parties need to have the chance for uninterrupted holidays.
Once Michael is able to manage telephone contact, the parties will facilitate regular contact. This contact is set as a minimum. Because of the tensions between them the party with whom the child then is shall cause the child to telephone the other parent. This maintains a semblance of privacy and provides no justification for unwelcome calls.
I have made a series of specific issues orders that will maximise the parties chance to communicate relevant matters concerning Michael and obtain information from others. Because medical issues have been problematic the parties must agree on the child’s primary treating doctor and as far as possible ensure this is where the child receives non specialist medical care. Presently, the parties communicate using a communications book and until they have completed confidential counselling, they are likely to need to continue to do so.
I have carefully considered whether there should be an order for joint long term parental responsibility. It is difficult to see how these parties will effectively communicate on matters concerning their son’s welfare. However, both parties consider this outcome desirable and in spite of my misgivings I will order it. As long term decisions need to be made, the father needs to remember that Michael lives most of the time with the mother, a factor which may be highly relevant to the decision.
For these reasons I make the parenting orders identified at the start of this judgment. I am satisfied they are in the child’s best interests.
Relevant law – change of name.
The nature of orders relating to a child's surname was considered recently by the Full Court of the Family Court in Flanagan v Hancock 2000 Fam CA 150. Although a grant of special leave to appeal to the High Court was given it was subsequently revoked. It is apparent from the Full Court's decision that whichever way one analyses a change of name issue, that is by reference to a s.68B injunction or a s.65D parenting order, either directly or indirectly the paramountcy principle is applicable.
There are numerous decisions that pre-date the 1995 Family Law Act 1975 amendments relating to a child’s surname. In Foocks v McCarthy (1994) FLC 92-450 Warnick J held “There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.” The factors frequently considered in determining whether there should be any change to a child's surname:
· Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
· Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
· The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
· The effect of frequent or random changes of name.
· The contact that the non-custodial parent has had and is likely to have in the future with the child.
· The degree of identification that the child or children have with their non-custodial parent.
· The degree of identification which the child or children have with the parent with whom they live.
Conclusion regarding the child’s surname
The mother wants Michael to have her surname or a hyphenated surname which combines both parties’ last names. The father wants Michael to carry his surname. The father submits that the child’s family name ought to be W because it is usual of marriages in Australian society that children bear their father’s name. Whilst it is certainly common, societal norms have changed and many children carry their mother’s or another person’s surname. In his affidavit, the father revealed his attitude to the mother saying, “The family name “J” which the respondent adopted for herself and used for Michael is only the respondent’s mother’s maiden name”. The use of the word “only” is telling. It simultaneously denigrates the mother’s and her mother’s attachment to their maternal lineage.
I wonder if the mother had nominated her father’s surname whether the same epithet would have been used.
The mother has a tenuous relationship with her father. She and her mother accept that he was emotionally ill equipped to address his daughter’s trauma when as a teenager she was disfigured in a horse riding accident. He withdrew from his daughter and she must have been deeply saddened with the manner in which her relationship with her father failed. Not surprisingly, when she had the opportunity to give up his surname she took it. The mother adopted “M” when she lived with YM and upon her marriage to the father, changed her name to “W”. With YM’s agreement she changed Timothy’ surname to “W”. Immediately after separation she abandoned the last name “W” for herself and Timothy. Presently, the mother has started negotiations with YM concerning Timothy’ surname. While I cannot be certain that YM will agree that Timothy adopt “J” as his surname, his passive acceptance of the mother’s role as primary decision maker in Timothy’ life suggests that he will agree.
The father’s counsel submits the court could not be confident that the mother will retain “J” for herself and the children. Basically, that she changes her and their surname with such frequency that Michael may ultimately be the only person in her family using the “J” surname. On the contrary, the mother has demonstrated a strong desire that she and her children carry the same surname. Should Michael’s surname be determined by order she is unlikely to seek to change her or Timothy’ surname. It is more likely than not, that by using “J”, Michael will have the same surname as his half-brother and mother.
On the other hand, if Michael uses the surname “W”, he will not have the same surname as his mother and half brother. Because Michael will live primarily with his mother and half brother it may well be easier for him socially if his name is linked with theirs. On the school ground, for example, carrying the same surname as his slightly older brother identifies the children as brothers. Although others will know they are brothers, the same surname reinforces this identity. This is the factor that carries greatest weight.
There is no proprietorial right in children’s surnames. Social norms no longer discriminate against children who carry their mother’s surname rather than their father’s. Society accepts that children in the same family may have different surnames. Where children have an established identity, changing surnames merely because a family has separated or reformed is rarely a compelling reason for change. The mere fact that Michael has carried his mother’s maiden name since his birth is of no moment. Michael has no sense of identity by reference to his surname. Whichever outcome is ordered, until Michael is older will have no impact upon him. I am surprised the father so strongly opposes the mother’s alternate scenario of a hyphenated surname. His strong opposition to it combined with the certainty that neither Timothy nor the mother will carry a similar hyphenated surname has persuaded me against this course. On balance, I am satisfied that Michael’s best interests lie in carrying the same surname that his mother and brother are likely to use throughout his childhood.
The property proceedings
The approach to the determination of an application under s.79 of the Family Law Act 1975 is well established by authority In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; and In the Marriage of Clauson (1995) FLC 92-595 the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Family Law Act 1975 affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
The assets and liabilities as at the date of hearing
The parties reached agreement as to the value of most assets and liabilities. The father identified the asset pool in his counsel’s case outline. The mother identified her contentions as to the asset pool in her counsel’s closing submissions.
I find the assets, liabilities and financial resources of the parties as at the date of the hearing are as identified as the following table.
| Assets | $ |
| Former matrimonial home (F) (Agreed) | 306,000 |
| Toyota Corolla (F) (Agreed) | 9,000 |
| Superannuation (F) (Agreed) | 13,699.29 |
| Contents of home (F) (Agreed) | 2,195 |
| Add back paid legal expenses (F) | 19,000 |
| TOTAL ASSETS | 349,894.29 |
| Liabilities | |
| Horizon Credit Union (F) (Agreed) | 193,227 |
| Visa credit card (M) | 1,900 |
| NETT ASSETS | 154,767.29 |
There are a number of findings that require explanation. Although the former matrimonial home has an agreed value since the court reserved its decision the father sold the home for less than its agreed value. No issue of waste arises, however the court does not have evidence of its sale proceeds after selling costs. It would be harsh to ignore these costs. Thus I will use the agreed figures as an approximation and structure my orders using percentages when distributing the net assets.
After separation the father extended the mortgage by $19,000 to pay legal fees. Applying Farnell (1996) FLC 92-681 his paid fees will be notionally added back into the asset pool.
The father does not accept the mother’s visa card debt is a joint matrimonial liability. It appears this debt largely accrued after separation. Since separation the father has enjoyed exclusive possession of all the valuable matrimonial assets. The mother needed to rehouse, starting with few personal possessions. Although the father pays child support, the mother’s financial circumstances are modest. I infer that she has needed to use credit cards in order to meet her reasonable and necessary living expenses. In those circumstances the credit card debt will be treated as a joint matrimonial liability.
Section 79(4) contributions and other factors
Section 79(4) requires that the court looks at the entirety of the contributions, both financial and non-financial to the welfare of the family, as well as the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
In relation to the parties contributions under s.79(4) a global approach is generally adopted rather than an asset by asset approach. Neither party submitted that the court should depart from the usual global approach, which is clearly the appropriate methodology for this matter. Norbis (1986) FLC 91-712.
At the commencement of cohabitation the mother was receiving Centrelink payments and child support. She was not working in the paid workforce. The father was employed full time with Horizon Credit Union as a loans officer. The mother owned a house full of furniture and household effects. The father settled the sale of a home unit he owned at Towradgi on 2 August 2002. From its sale, the father received $46,202.06 net. The father also owned a recently acquired Toyota Corolla and had an interest in his superannuation fund.
From the time the parties commenced cohabitation in August 2002 both parties contributed all income earned and received to joint matrimonial purposes. The affidavit material is replete with disagreement concerning who paid for food and other day to day expenses. Although they maintained separate bank accounts, the parties lived frugally and saved hard towards the new house. The father successfully disproved the mother’s claim that she alone paid all expenses including food, rent and day to day expenses while the father saved his income. The father’s bank records reveal that he also paid food and day to day expenses. His documentary evidence is not sufficiently compelling that I could conclude he paid all household expenses. It appears, that like most families, the parties contributed all income to the family and that at different times one or other saved while the other paid accounts.
Between mid-September 2002 and mid-April 2003 the mother worked on a casual basis at Shoalhaven City Council for a total of 197 hours. The father’s mother, who was her superior at Shoalhaven City Council breached the mother’s privacy and obtained precise details of her hours of employment. Throughout cohabitation the father worked full time. During his hospitalisations and recovery he received either holiday pay or sick leave. The mother continued to receive Centrelink benefits until the parties married, contributing these, as well as child support for Timothy to the family. It is difficult to understand her entitlement. In Parshen v Parshen (1996) FLC 92-720 the Full Court of the Family Court held, “In our view in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s.79 that monies how so ever received by a party during the course of the party’s cohabitation, are used by that party for the benefit of the family unit. Such monies, in those circumstances, thus constitute a financial contribution by the party who received the money”. These principles apply during the parties cohabitation. Relatively, during cohabitation the father earned and contributed more financially than the mother.
On 11 November 2002 the father purchased land at Lot 409 Worrigee Gardens Estate, Nowra for $71,000. He contracted with Pioneer Homes to construct a home. In total, the father borrowed $173,204 for the home and land. For six weeks while the home was being constructed, the parties resided with the maternal grandmother. They lived rent free and between them paid for the weekly groceries. This is an indirect financial contribution made on the mother’s behalf. Both parties worked to establish gardens and liaised with Pioneer Homes and other tradespeople. The significant work in construction and completion of the home was undertaken by the building company or tradespeople. The parties’ individual non financial contributions to this venture are minimal.
The home was completed in May 2003 and the parties moved in, in mid 2003. By this time the mother’s pregnancy was well advanced and the father about to undergo major surgery. Neither party enjoyed good health. I do not accept that either completed any significant work around or to the property. Nor do I accept the father performed virtually all of the housework as well as working full time. In the short time the parties cohabited it is more likely that the mother performed most of the housework, while the father contributed after work and when his health permitted. However, because cohabitation was so short, the parties’ respective contributions as home maker are insignificant.
Since separation the mother has made a continuing contribution as a home maker and parent by virtue of her care of Michael.
In Pierce v Pierce (1999) FLC 92-844 the Full Court of the Family Court held, “In our opinion it is not so much a matter of erosion of contribution, but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
The mother’s counsel submits that the court will acknowledge the father’s initial contribution by deducting it from the asset pool and conclude the parties contributed equally to the remaining assets. With respect, this submission does not reflect the court’s usual approach and significantly undervalues the father’s initial contribution. The father’s initial contribution of his car, the sale proceeds of his unit and his superannuation is fundamental to the current values of the asset pool. Without his initial contribution the parties are unlikely to have been able to acquire and improve the former matrimonial home during the brief time they were together. It is highly unlikely that any increased value of the former matrimonial home is attributable to improvements. To a significant extent, the current value is attributable to the father’s contribution to it. This is a significant factor that weighs in the father’s favour.
Putting the father’s initial contributions to one side, during cohabitation the father made a greater financial contribution than the mother.
Overall, the mother’s non-financial contributions, including her contribution as a home maker and parent since separation exceed the father’s. Although comparatively insignificant, the mother’s contribution as a home maker and parent must be properly recognised. See Ferraro.
The orders I propose will not affect the earning capacity of either party.
The father pays $75 per week child support.
As I have already indicated I must take into account and balance all of the parties’ contributions. This means that the mother is not required to prove a nexus between her contributions and the home. This involves quantifying and balancing different activities, something that does not lend itself to mathematical precision or formulaic scheme. Nor is there an artificial separation whereby contributions initially made are inherently more valuable than those made later. Having regard to these findings I am satisfied that the father’s contributions are 97 per cent compared to the mother’s 3 per cent.
Section 75(2) factors
The mother is 26 years old and in good health.
The father is 31 years old and subject to the impact of Crohn’s Disease is in good health. It appears that the major debilitating aspects of Crohn’s Disease have largely been eliminated as a consequence of surgery. The father has a permanent ileostomy. There is no evidence that Crohn’s Disease will reduce his life expectancy, that there is the prospect of further surgery or that it interferes with his capacity for employment. In these circumstances, these factors do not warrant an adjustment pursuant to subsection (a).
I have already made findings concerning the parties’ property and financial resources. The mother is unemployed and is unlikely to have paid work at least until Michael starts school. If she manages to complete her degree she may secure employment in the Police Force or teaching. Although I do not doubt her intellectual capacity for study, her circumstances may make it difficult for her to study full time or even complete her degree until the children are much older. It is more likely that once Michael starts school she may obtain part time clerical or relatively unskilled work. Her prior experience as a security officer is relatively modest and whilst the children are young, unlikely to create an opportunity for paid work. By comparison, the father has full time and secure employment with Horizon Credit Union. His employers have accommodated his relocation and given him time off work for health and other reasons, which indicate he is a valued employee. Presently, he earns $36,000 per annum, about $526 per week net. The mother’s income comprises social security of $308 per week, $50per week child support for Timothy and $75 per week child support for Michael. Overall, I am satisfied the father will continue to earn considerably greater income than the mother and that their financial disparity is such that it warrants an adjustment in her favour pursuant to s.75(2)(b).
In Clauson the Full Court of the Family Court said, “In addition it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment opportunity and the restriction upon an independent lifestyle which the obligation to care for children usually entails”. These principles are applicable to the circumstances of this case. I am satisfied that as a consequence of the mother’s substantially exclusive care of Michael that there should be an adjustment in her favour pursuant to subsection (c). This is a weighty consideration.
The mother has commitments identified in her financial statement. Now that he has sold the former matrimonial home, the father no longer has commitments associated with it. The mother’s commitments include a significant proportion for Michael. I am satisfied that I should make an adjustment in the mother’s favour pursuant to subsection (d).
Neither party contends for an adjustment under subsections (e) – (m).
By virtue of my contributions finding, the father will receive a vastly greater share of the matrimonial property than the mother.
At the conclusion of the contributions phase, the mother has few assets. Because the period during which the parties cohabited and contributed is short, this moderates the significantly wide gap in their asset position. Although not a weighty consideration, the factor warrants an adjustment pursuant to the subsection. With respect the father’s counsel misunderstands the Full Court’s decision in Goodwin & Goodwin-Alpe (1991) FLC 92-192. In Goodwin & Goodwin-Alpe the parties cohabited for just over three and a half years, considerably longer than these parties. There the Full Court of the Family Court held that a trial judge was in error in making an adjustment during the contributions phase because of the parties disparate financial circumstances. The Full Court determined that this consideration was properly addressed pursuant to s.75(2)(n).
The father has many years of child support ahead. It appears likely he will remain in salaried employment and unlikely he will fail to meet his child support obligations. At his current salary level his child support payment is modest and it seems unlikely it will increase dramatically. Nonetheless it is appropriate to make an adjustment in his favour pursuant to s.75(2)(na).
The only other matter requiring consideration is the father’s financial support of Timothy and his contribution to the child’s welfare. The father accepted Timothy as his own child. However the period during which he did so was short and relatively insignificant. Although the father allowed friends to live in the former matrimonial home rent free, he could have rented it for about $250 per week. His decision to forgo income is unnecessarily a waste in a Kowaliw (1981) FLC 91-092 sense. Balancing these factors I make no adjustment pursuant to s.75(2)(o).
Having regard to all of the relevant s.75(2) factors, it is appropriate that there should be an adjustment in the mother’s favour of 20 per cent. This outcome reflects the cumulative outcome of the finding I have made pursuant to s.75(2). See Tomasetti (2000) FLC 93-023. Any lesser adjustment, given the size of the asset pool, would be notional.
Section 79(2) is this a just and equitable outcome?
The outcome of the s.79(4) and s.75(2) phases has resulted in a distribution favourable to the father 77 per cent as compared to the mother’s 23 per cent. This is a just and equitable outcome within the meaning of s.79(4). The s.79 exercise requires that the court gives proper weight to the parties’ financial and non-financial contributions. In this regard, the father’s initial contribution was pivotal to the parties’ financial security. The period during which the mother contributed to the acquisition, conservation and improvement of the parties’ assets is short. Her financial contribution is no where near as significant as the father’s. The father’s contribution of the net sale proceeds of Towradgi provided the seed capital which enabled the parties to acquire the former matrimonial home. While the mother’s modest furnishings enabled the parties to live comfortably, comparatively this contribution is nowhere near nearly as significant. The increased equity in the former matrimonial home is overwhelmingly attributable to the father’s contribution of the Towradgi sale proceeds. Because the mother’s contributions are so limited the capital gain is a contribution made almost entirely by the father. However, the mother’s non-financial contributions, particularly in the care of the child post-separation are minimal; they must be afforded some value. Section 75(2) contributions materially favour the mother. She has many years of Michael’s primary care ahead and her financial future, as a consequence is far less secure than the father’s. Comparatively, he has appropriately paid, full time secure employment. Although in the years ahead he will pay considerable child support, comparatively his financial future is far more assured than the mother’s.
Structure of the property orders
Although the former matrimonial home has an agreed value, as I have indicated earlier, I do not have evidence concerning the net sale proceeds. Excluding the former matrimonial home, the net assets are $41,994.29. The father has net assets worth $43,894.29. Seventy seven per cent of $41,994.29 is $32,335.60. Therefore, the father must pay the mother the difference between $43,894.29 less $32,335.60. This is $11,558.69. By way of cross-check, 23 per cent of $41,994.29 is $9,658.69. The mother has liabilities of $1,900. $11,558.69 less $1,900 is $9,658.69. The father will have 77 per cent of the net sale proceeds from the former matrimonial home and the mother shall have 23 per cent. From the father’s share he must pay the mother $11,588.69. However the mother owes the father $7,687.45 and this debt must be offset against his adjusting payment. The mother’s liability arises from a $4,937.45 adverse costs order made 4 February 2004. Also one-half of Dr Rickard-Bell’s fees, initially paid by the father of $2,750. $11,588.69 less $7,687.45 is $3,901.24. This is the adjusting payment that the father must pay the mother from his share of the sale proceeds.
These figures are predicated upon the mortgage payout not exceeding $193,227. If the mortgage payout was actually greater than this amount, the father must pay the difference. This is because he has had exclusive use of the property in circumstances where the mother was refused occupation. The sale proceeds shall take into account legal costs and agent’s fees and any other necessary costs associated with the sale. Rates shall be adjusted on a paid basis, if necessary from the father’s share. The mortgage and rates are in effect the father’s price for possession of the property.
This, I am satisfied, is a just and equitable outcome.
For these reasons I make the orders identified at the start of the judgment.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 6 May 2005
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