T and D
[2000] FMCAfam 5
•21 July 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & D | [2000] FMCA fam 5 |
| INTERIM RESIDENCE & CONTACT – Principles to be applied in interim parenting order |
| Applicant: | L T |
| Respondent: | L D |
| File No: | ZP000338 of 2000 |
| Delivered on: | 21 July 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 19 July 2000 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kearney |
| Solicitors for the Applicant: | Messrs Malouf, Solicitors, DX 28334, Parramatta |
| Counsel for the Respondent: | Mr Sperling |
| Solicitors for the Respondent: | Legal Aid Commission NSW, DX 5 SYDNEY |
ORDERS
Pending further Order that the child L G H T born 5 May 1991 reside with the Respondent Mother.
Pending further Order that the Father exercise contact with the child:
(a)On each Saturday and Sunday that the Father has a rostered day off, and if consecutive days, then overnight;
(b)One night during each week, from 5.00 pm until the commencement of school the next day;
(c)On Fathers Day;
(d)For such time during the school holiday, but not exceeding one half, as the Father can take leave from work.
That for the purpose of contact the Mother deliver the child to the Father at the commencement and the Father return the child to the Mother at her home at the conclusion.
That the Father nominate the weekdays on which he will exercise contact pursuant to these Orders 7 days in advance of his intention to do so.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 000338 of 2000
| L T |
Applicant
And
| L D |
Respondent
REASONS FOR JUDGMENT
Application
These proceedings relate to interim residence and interim contact to L G H T born 5 May 1991.
The Applicant Father (Hereafter referred to as the Father) filed an Application for Final Orders and an Application for Interim Orders on
28 June 2000. The applications were filed in the Family Court at Parramatta. On 19 July 2000, the proceedings were transferred to the Federal Magistrate’s Court by consent. That same day the Respondent Mother, (Hereafter referred to as the Mother), filed a response to the Application to Final Orders and to the Application for Interim Relief.
Background history
The Father was born on 23 April 1968 and is now aged 32 years. The Mother was born on 7 December 1971 and is now aged 28 years. They commenced a relationship in June 1990 and married in March 1991. There is one child of their relationship, L who was born on
5 May 1991. L is 9 years and 2 months old. After their marriage the parties resided in Sydney.
There is no agreement about the date of separation. In his affidavit, the Father asserts that the separation occurred in October or November of 1991. The Mother’s evidence is that separation occurred in about February 1992. The circumstances surrounding separation are also matters that are in dispute.
After separation, L resided with the Mother. Initially, the Mother was not in paid employment and was able to care for L on a full time basis. The Father was employed by the Department of Corrective Services as a Correctional Officer working in the prisons. The Mother obtained rental accommodation in M and the Father moved into the officers quarters at L B Gaol. On his rostered days off, the Father exercised contact to L, his contact was for short periods on a regular basis.
The Mother was struggling financially and returned to paid employment. L then attended daycare five days a week in family daycare. In early 1993, the Mother moved to Brisbane where she and L resided for the next year and a half. The Father exercised contact to L in Brisbane on a number of occasions staying at the Mother’s home for this purpose.
In about January 1994, the Mother was offered a job in Japan. The Mother asked the Father to take care of L for the few months she proposed to be overseas and he agreed. Prior to the Mother’s planned departure to Japan, the Father and L returned to Sydney and together went to live at the Father’s brother’s home at N. L and the Mother maintained telephone contact and on 10 February 1994, the Mother visited L in Sydney. The Mother did not, in the end, travel to Japan. She went to New Zealand and returned to Australia on 24 February 1994. In either late February or late March 1994, the Mother resumed L’s full-time care. By early April, the Mother obtained accommodation provided by the Housing Commission Department in S H.
In 1996, L started school and was enrolled at B Street Public School in S H.
The Mother and L continued to reside in their S H accommodation until early 1997. In early 1997, the Mother and L moved to M. L transferred schools and was enrolled at M B Primary School. L did not progress well at M and he returned in 1998 to B Street Public School. Between early 1997 until March 1998, the Father delivered L to school and collected him from school, taking him to the Mother’s home two or three afternoons each week.
In April 1998, the Mother travelled to America for twelve days. At her request, the Father took care of L. He moved into the Mother’s flat at M whilst the Mother was overseas. Upon her return from America, the Mother resumed L’s full time care and the Father returned to his accommodation at L B Gaol.
The Mother was then offered employment in the Northern Territory. The Mother asked the Father to care for L whilst she was away working. The parties are in dispute about the duration of the Mother’s period of employment in the Northern Territory. The Mother’s evidence is that she was away for approximately three and a half months. The Father’s evidence is that she was away for approximately four to five months. The parameters of this disputed evidence are narrow and nothing turns on them in this decision. The Mother made her unit available to the Father and he moved into the unit to care for L whilst the Mother was in the Northern Territory. A friend of the Mothers assisted the Father in the care of L, particularly when he was working nightshift at the gaol.
Upon her return from the Northern Territory, the Mother returned to reside with L in her M unit. The Mother’s evidence is that the Father continued to reside with her and L at M and that for a period of some months, the parties attempted to resume their relationship. The Mother says that the Father vacated the M premises in July 1999 and returned to live at L B Gaol. The Father says that he returned to live at L B Gaol upon the Mother’s return from the Northern Territory in about September or October 1998. It is the Father’s evidence that he took L to school most mornings, often collected him in the afternoons and had contact with him on rostered days off throughout 1999. He says that on some evenings, he would take L back to the accommodation block at L B Gaol and that from time to time, L would spend the night with him at the gaol.
The Mother agrees that overnight stays at L B Gaol did take place but not with the frequency alleged by the Father. I am not able to make any findings that determine the dispute concerning the Father’s continuing to reside with the Mother and L upon her return from the Northern Territory and until July 1999. I am satisfied, however, that during this period, the Father had regular and substantial contact with the child and contributed in a meaningful way to his physical care.
In 1999, L was enrolled at the C Public School, which school is close to L B Gaol.
It is agreed that after July 1999, the parties lived separately, the Mother with L at M and the Father at L B Gaol. The Father had liberal contact with L. It is agreed that the Father often collected him from school and that L then spent afternoons and some nights with his Father. At some point, the Mother had returned to work and L’s overnight stays with his Father at the gaol coincided with the Mother doing night work.
In March 2000, the Mother and L moved to a house in B and the nature of contact between L and Father changed. There was no contact for about four weeks and contact then occurred on those weekends that the Father was not required to work. L changed schools again and was enrolled at H Public School.
On 10 April 2000, the Father was appointed a Senior Correctional Officer at P Correctional Centre and started working there from that day.
In late April 2000, L told his Mother that he wanted to live with his Father. The Mother and Father had a number of discussions about this issue. The Mother initially asked the Father to take L for a time so that she could have a break from L. The Father’s response was to offer to take L on a permanent and full-time basis. The Mother agreed and on L’s ninth birthday, he moved to live with his Father. The Father had made arrangements with his brother, J T and sister-in-law to live with L and them at their home at C. Together with L, he then moved into his relatives’ premises at 56 F Avenue, C. Also living at the home were his four nieces and nephews, L’s Aunt and Uncle and two adult relatives. The home comprised a three-bedroom residence.
The Father and Mother transferred L’s belongings to the C home and enrolled L at P Public School. The Father took time off from work to settle L in to his care, returning to work on 26 May 2000. The Mother exercised contact to L every weekend, except one weekend when she was ill.
On 3 June 2000, whilst on contact with his Mother, L complained to her about having his head flushed down the toilet whilst at the Father’s home. L said he wanted to come home and live with his Mother. The Mother made contact with the Father. Either during that telephone conversation or in a conversation when the Father came to the Mother’s home, the Mother told the Father about L’s complaint about being dunked down the toilet. The Father had no knowledge of the incident and explained that he had been working nightshift, with little opportunity to speak with L. L did not return to the Father and has resided with the Mother continuously since that time.
The following Monday, the Father and L spoke by telephone. The Father asked L, “Where do you want to live?” and L said to him, “I want to live with Mummy”. There has been no face to face contact between L and his Father since then and only very limited telephone contact.
The father’s current circumstances
The Father is in full-time employment with the Department of Corrective Services. He lives at 56 F Avenue, C, with his brother and sister-in-law. He is employed on a 28-day roster, during which period he will have 9 rostered days off. He currently works between 8 am and 4 pm each day and will not be required to return to nightshift until at least January 2001. He expects that he will have one Saturday and/or Sunday a month as a rostered day off. If he is fortunate, he might have two weekends off in a month. I am satisfied that month to month, the Father cannot predict when he will be rostered off duty and that the former rather than the later weekend leave is the more likely outcome of the operation of his roster.
The father’s proposals
The Father identifies the contact orders he proposes in his application for interim orders. If he is successful, he proposes to obtain a home nearby to his brother and sister-in-law in which he and L will live. He has arranged with a cousin, V T, to assist him on those occasions when the Father is required to work at night or on weekends. L has never met V T. The Father will re-enrol L at P Public School.
The mother’s current circumstances
The Mother continues to reside at K Road, B. Since L has returned to her care, she has not worked in the paid workforce and has been able to care for L full-time. L has returned to his former school at H. The Mother has made arrangements for L to see the School Counsellor and he is being assessed academically to ascertain whether he requires some extra assistance with learning. In early 2000, the Father was assessed to pay child support for L at $746.00 per month. Since then, the Father has received a promotion, and I infer is earning at least a comparable, if not slightly greater salary than that which underpins the child support formula. The Father has attended at the Mother’s home and it is not part of his case that the accommodation provided by the Mother for L is insufficient to meet the child’s physical needs.
The mother’s proposals
Although the Mother filed her response to the Father’s interim application on the day of the hearing, the Mother amended, during the course of the hearing, the orders she sought for contact between L and the Father. The Mother proposed a staged program to re-establish contact. For the first two weeks that L have contact for one day in each week, for the next two weeks one night overnight, then one night in each week and each alternate weekend from Friday – Sunday night, half of school holidays. She indicated a flexible approach to the difficulties created by the Father’s roster by contemplating additional contact subject to the roster and by agreement.
Relevant law
Interim parenting proceedings do not determine the long term rights and obligations of the parties and their children. Accordingly, the Court should not ordinarily be drawn into matters of contentious matters of fact, or matters relating to the substantive merits of each party’s case.
The principles that determine the adjudication of interim parenting matters are reflected in a long line of authority; most recently stated in Cowling and Cowling (1998) FLC 92-801. The Full Court of the Family Court there identified a five-element process for the determination of interim proceedings for residence and contact.
Firstly, the overriding principle is that the best interests of the child are the paramount consideration.
Next, given the circumscribed nature of interim proceedings, the orders made should maintain and promote stability in the child’s life pending the final determination.
Next, where it is clear that the child is living in a well settled environment, the child’s stability will usually be promoted by continuing these current arrangements. If the evidence establishes there are strong or overriding reasons relevant to the child’s welfare whereby in that environment the child will be at risk, then the court should not make an order that leaves the child in a situation of serious risk. In deciding whether a child is living in a settled environment, the court should examine and assess :
a)The wishes, age and level of maturity of the child;
b)The current and proposed arrangements for the day to day care of the child;
c)The period during which the child has lived in the environment;
d)Whether the child has any siblings and where they reside;
e)The nature of the relationship between the child, each parent, any other significant adult and his or her siblings; and
f)The educational needs of the child.
Next, the weight given to the importance of the current living arrangements is to be determined by reference to the interests of the particular child. In deciding what weight should be given to the current status quo, the court may examine the circumstances by which the current status quo has been attained, the duration of the current arrangements and delay. This list is not exhaustive.
The court will undertake a limited evaluation of the matters set out in Section 68F(2) of the Family Law Act in circumstances where the evidence does not establish that the child is living in a settled environment. Cowling and Cowling (1998) FLC 92-801
Is the child living in a settled environment?
Both Mr Kearney for the Applicant Father and Mr Sperling for the Respondent Mother submitted that the child was living in a settled environment at the date of hearing. Mr Kearney submitted that the relevant environment, namely that which I am satisfied the Mother and Father agreed in May 2000 would be the child’s permanent living arrangement, is L living in the care of the Father and with contact to the Mother.
Mr Sperling submitted that the settled environment was the child residing with the Mother, living at B and attending H Public School. He argued that the four week period of residence during May 2000 with the Father was insignificant when considered in the context of long term residence with the Mother.
I do not accept the argument made on behalf of either party. I am not satisfied that as at the date of the hearing the child was living in a settled environment.
Dealing firstly with the Father’s environment, I am satisfied that L does not wish to reside with his Father. He has communicated his preference to reside with his Mother, to both his Mother and his Father. L is 9 years old and although he is being assessed for extra educational needs, neither party gave any evidence that would support a finding that he is immature. Mr Kearney submitted that L’s wishes should have little weight attached to them given that as recently as May 2000, he expressed a clear wish, and I accept he did, to reside with the Father. I am satisfied given the age of the child and the fact that he has communicated his wish to both his parents that his preference must be given some meaningful weight.
I have made findings concerning the Father’s current and proposed arrangements for the care of L. These arrangements will include the care of L by a person who is not known to him, residing in a home in the short term where as recently as June 2000 L was head dunked in a toilet, an incident I am satisfied he found distressing. The Father’s roster arrangements, I am satisfied are uncertain and unlikely to enable him to spend more than a few weekend days caring for his son. I am satisfied that between the date of this hearing and a final hearing in this court, the Father will not be required to work nightshift but nonetheless, the demands of his work currently place a significant impediment for the day to day care of the child. This is particularly so when compared to the arrangements that can be made by the Mother.
L lived in the environment proposed by the Father for a period of four weeks. This brief duration in the context of the other factors relevant to the establishment of a settled environment is not sufficient to enable me to conclude that the child was living with the Father in a settled environment. I am satisfied on the evidence that L and the Father have a close and significant relationship. At present, there is evidence of some anxiety in L’s relationship with his Father. The evidence does not enable me to conclude whether this anxiety is transient or potentially longer lasting. The Father would return L to P Public School, a school he has attended for only a matter of weeks.
Similarly, I am not satisfied that L’s living environment with his Mother is a settled environment. I have already in these reasons made findings concerning L’s wishes. I will not restate them. The Mother is residing with L in rented accommodation in B. L and his Mother moved to B in March 2000 and have lived there together for a total of 3.5 months. L has returned to H School, the seventh time he has changed school. His educational needs have been disrupted by repeated changes in schools attended and he has not been given the opportunity for consistency in education. A further change in his educational arrangements, other than on a permanent basis is undesirable. I am satisfied that the Mother has been L’s prime caregiver, albeit with substantial participation by the Father, since separation. L has a close and important relationship with the Mother. There is evidence of some anxiety in that relationship, demonstrated by L’s desire in May 2000 to reside with his Father.
Thus, it is necessary to have regard to the relevant Section 68F(2) factors in the determination of these proceedings.
Section 68F(2) — determining the child’s best interests
a) The child’s wishes
For the reasons I have already given, I am satisfied that L currently wishes to reside with the Mother and that those wishes should be given material weight.
b) The quality of the child’s relationship with each of the parents
The child’s relationship with his Mother and Father has been discussed when examining the evidence relating to the child’s environment, particularly at paragraphs 32 and 33.
c) Parties capacity to meet the child’s needs, and their attitude to the child and the responsibilities of parenthood
In evaluating this evidence, I am considering L’s short term needs, namely those that arise between the time of this hearing and the final determination. There is conflicting evidence concerning the parties capacity to meet L’s financial and emotional needs. The evidence does not suggest that these deficiencies, even if I could make findings about them, will affect L in the short time that will lapse prior to the hearing.
I was satisfied, having had the opportunity to see both of the parties cross-examined, that each demonstrated a commitment to L and the responsibilities of parenthood. There is evidence that each has had difficulty in the past giving primacy to L’s needs, when balanced against their own. The extent to which this is the case and its relevance to future parenting is also an issue that can only be determined on a fulsome examination of the evidence, the opportunity for which will only arise at trial.
The Father is critical of the Mother’s attitude to contact and says that the Mother has gone to considerable lengths since separation to interfere with his relationship with the child. For her part, the Mother concedes that she has changed residence on occasion without notice to the Father, seeking to take herself and the child away from the Father’s alleged harassment and violence towards her. These are important matters of fact that must be addressed at the final hearing. I am satisfied having seen the Mother, that she will comply with orders made by this Court for contact and that L’s relationship with his Father will be maintained.
d) Changing the child’s circumstances
L has lived in numerous different homes since separation and changed schools on seven occasions. There is evidence that his schooling, as common experience would suggest, is potentially suffering. His short term welfare requires stability and continuation of the services that are being provided for him at H Public School. In the context of the many changes that have taken place for this particular child, I am satisfied that continuing to reside in B with the Mother and attending his current school are in his best interests.
e) The practical difficulty of contact
The Father’s working arrangements make a regular structure for contact problematic. The practical difficulties, however, are secondary to the need to ensure that L re-establishes contact with his Father and has regular contact to him. This will require effort by both parties, something that the orders I make will reflect. The Father has demonstrated that he can make arrangements to accommodate L on occasions of contact. Although these arrangements may not be suitable in terms of residence they are sufficient for the purpose of contact, particularly when balanced with the need to ensure that the Father and son relationship is nurtured.
f) The child’s maturity, sex and background
L’s Father has a south pacific heritage, the details of which did not form part of the evidence. The Father clearly has significant family support in Australia. The evidence does not enable me to make any findings concerning the significance of L’s cultural heritage, that again being a matter in this case more relevantly addressed at the final hearing. I have already dealt with L’s maturity and sex earlier in these reasons.
g) Physical or psychological harm
There is evidence in the Mother’s case of violence to her by the Father. The time constraints placed on the parties during the course of this interim hearing meant that not every issue was explored. The parties’ legal representatives properly addressed current issues relevant to L’s immediate residence and contact. It was not part of the Mother’s case in submission that the Father represented a risk to the child or her at this time. The nature and extent of any family violence is clearly a contentious issue between the parties and not an issue in relation to which I can make any findings.
There are no family violence orders that apply to the child or a relevant member of the child’s family.
I have and read and considered the evidence. Taking into account the non contentious evidence and in particular those matters to which I must have regard pursuant to s 68F(2) which are relevant to these proceedings, I am satisfied that L’s interests are best served by remaining with his Mother and having contact with his Father. I am also concerned that the determination of the final issues should occur quickly, so that those matters that have not been able to be the subject of close scrutiny and relevant findings can be considered and a decision made that ensures L’s long- term future.
The orders I make are:
(1)Pending further Order that the child L G H T born 5 May 1991 reside with the Respondent Mother.
(2)Pending further Order that the Father exercise contact with the child:
(a)On each Saturday and Sunday that the Father has a rostered day off, and if consecutive days, then overnight;
(b)One night during each week, from 5.00 pm until the commencement of school the next day;
(c)On Fathers Day;
(d)For such time during the school holiday, but not exceeding one half, as the Father can take leave from work.
(3)That for the purpose of contact the Mother deliver the child to the Father at the commencement and the Father return the child to the Mother at her home at the conclusion.
(4)That the Father nominate the weekdays on which he will exercise contact pursuant to these Orders 7 days in advance of his intention to do so.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date:
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