T and McG
[2002] FMCAfam 252
•15 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & McG | [2002] FMCAfam 252 |
| CHILDREN – Best interests – long term issues – contact. Family Law Act 1975, ss.60B(1), 60B(2), 61C, 65E, 68F, 68F(2) B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | J R T |
| Respondent: | R L McG |
| File No: | (P)DNM2023 of 2002 |
| Delivered on: | 15 August 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 8 August 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr C Black |
| Solicitors for the Applicant: | Cecil Black |
| Counsel for the Respondent: | Ms J Terry |
| Solicitors for the Respondent: | Janet Terry |
ORDERS
That all previous orders in respect of the children of the marriage J L T born 14 August 1987 and R J T born 15 August 1990 be discharged.
That the parties have joint responsibility for making all decisions concerning the long term care, welfare and development of the said children.
That the said children live with the mother.
That each party have responsibility for making all day to day decisions concerning the care, welfare and development of the said children when they are in each of the parties respective care.
That the father have contact with the children as follows:
(a)For the first half of all school holidays in 2002 and each alternate year thereafter and the second half of all school holidays in 2003 and each alternate year thereafter on condition that and subject to the father providing to the mother in writing or by email 28 days prior to such contact taking place the location of the proposed contact; the arrival and departure times and the flight numbers of all flights that the children will be required to take for such contact; the address or addresses at which the children will be staying and a telephone number or numbers at which the children may be contacted during each period of contact and 14 days prior to such contact taking place the father providing in writing to the mother confirmation that all necessary airfares have been paid for the relevant period of contact.
(b)In the event that the father is in Adelaide for any reason during school terms on one occasion only in each term upon him giving 14 days notice in writing or by email to the mother of his intention to have such contact and provided that he provides the mother with details of the location of such contact as follows:
(i)If it is a weekday, between the hours of 4.00pm and 9.00pm;
(ii)If it is on a weekend, from 9.00am Saturday until 6.00pm the following Sunday.
(c)By telephone and email at all reasonable times;
(d)At any other times or on any other conditions as the parties may mutually agree from time to time.
The mother is to be responsible for delivering the children to the Adelaide Airport at the commencement of such contact referred to in paragraph 5(a) and ensure that the children board any necessary flight for contact.
The father is to be responsible for collecting the children after any necessary flight for the purposes of the contact set out in paragraph 5(a) hereof and ensuring that the children are returned to Adelaide at the conclusion of such contact.
Each party is to advise the other by email of the departure and arrival of the children before and after each period of contact.
That in the event that either party proposes changing their respective place of residence or telephone number, they are to advise the other party of such change 14 days prior to such change.
That the father and mother each keep the other informed of any major illness or accident suffered by the said children when in his or her care and advise the other as soon as practicable of the name of the treating doctor or like professional attended by the children.
That the mother authorise the principal of each school attended by the children from time to time to send to the father:
(a)A photocopy of each school report about each of the children;
(b)An order form for each school photo of each of the children.
That the father be at liberty to communicate with any teachers of the said children and to confer with them regarding the academic progress of the children from time to time.
That the mother be permitted to leave the Commonwealth of Australia with the said children for the purposes of a holiday of not longer than 28 days duration notwithstanding the consent of the father for the children to so travel has not been first obtained.
That the mother inform the father of her intention to take such a holiday in paragraph 13 hereof 28 days prior to such holiday taking place and provide to the father an itinerary in respect of such holiday together with addresses and telephone numbers on which the children may be contacted during such holiday.
That an injunction is issued and the father is hereby restrained from the use of marijuana or the excessive consumption of alcohol during any period of contact with the children, including telephone contact.
That unless otherwise agreed between the parties the father shall bear the costs of the children’s travel between their place of residence, other than necessary car travel to the airport in Adelaide and the place where the contact proposed by the father is to take place.
That the father be restrained and an injunction be granted restraining him from denigrating or threatening the mother or A S.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM2023 of 2002
| J R T |
Applicant
And
| R L McG |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to competing applications for parenting orders in respect of two children, J L T born 14 August, 1987 and R J T born 15 August, 1990. Thus, in a matter of days, J will be 15 years of age and R will be 12 years of age.
The parties to the proceedings are J and R’ parents, their father J R T and their mother R L MCG. The parties were previously married but have been divorced for many years. For reasons of convenience and as it has been a practice adopted by the parties in their applications, I will refer to Mr T as the “father” in these reasons for judgment and to Ms McG as the “mother”.
The children have lived with the mother for the last four and a half years. The father does not seek to change this arrangement. In the main, the proceedings relate to the duration, location and arrangements for the father to have contact to J and R and whether this contact should be subject to any conditions, in particular whether it should be subject to the wishes of the children concerned.
The parties also seek a number of specific issues orders which relate to the care of the children and the sharing of responsibility between them for that care. Specifically, the mother seeks an order that she be solely responsible for making both long term and day to day decisions concerning the care, welfare and development of the children. The father seeks that this responsibility, particularly the long term responsibility for the care of the children, be shared and that he be consulted in respect of matters relating to their education, medical treatment, religion and employment. He also wishes to be able to confer regularly with the children’s teachers.
The parties currently live in different cities. The father lives in Darwin. The mother lives in Adelaide. The distance between the parties and difficulties they both acknowledge they have in communicating with one another, have made arrangements between them in the past for contact extremely problematic.
The father wishes to establish a more flexible regime in respect of contact, which would cover a number of possibilities, including the possibility that he will live in Adelaide in future or visit there from time to time. He also wishes to be able to have holidays with the children away from both Darwin and Adelaide. A number of practical considerations flow from this, the chief of which is how information and proposals regarding contact are to be communicated between the parties. For a number of reasons that will be examined later in some detail, the parties’ relationship is one characterised by suspicion and mistrust. Direct communications between them have almost entirely broken down. The children have not been immune to this dispute and have in fact been used as messengers between the parties. It is the mother’s position that given the history of the parties to date, such a flexible arrangement, as proposed by the father, is unworkable and one that is neither likely to be to the taste of the children concerned nor in their best interests.
Notwithstanding these deep and entrenched difficulties, the parties have been able to agree on some matters. The parties agree that there should be contact between the children and the father for one half of all school holiday periods and that there should be contact by telephone and email, although the specific detail of that contact is subject to controversy between them.
Applications
The father is the applicant in the proceedings. The mother is the respondent. The father commenced the current proceedings in the Family Court at Darwin on the 22nd of September 2000. They were transferred to this Court, the Federal Magistrates Court on the 6th of December 2001. Shortly prior to the commencement of the hearing before me, each of the parties prepared a detailed minute of the orders they sought from the Court in respect of the children. It is not necessary to set out these minutes verbatim, rather the respective minutes of the parties can be summarised and the differences isolated as follows:
i) The father
As has previously been indicated, the father seeks what could be termed an omnibus order, which would cover all eventualities in respect of contact between him and the children.
He seeks contact for half of all school holidays. In the event that he is living in Adelaide he seeks this contact in addition to alternate weekend contact and fixed contact on Christmas Day. He also seeks contact on seven days notice in the event that he has cause to visit Adelaide for any reason. He also seeks the ability to be able to take the children away from Adelaide for a fourteen day holiday, provided an itinerary and other details are provided. This would include overseas holidays.
The father also seeks telephone contact between 6.00pm and 8.00pm on two occasions per week for up to 30 minutes. He proposes making a number available for this at his own expense. He also seeks contact by email and video cam.
He seeks that the parties share joint responsibility for all long term decisions concerning the care, welfare and development of the children and in particular that he be consulted by the mother about major decisions concerning them. He would want to be given the formal imprimateur to consult regularly with the boy’s teachers.
ii) The mother
I think that it is a fair summation of the mother’s position that she wishes to circumscribe the father’s contact to the children to a large degree. She has difficulty in agreeing to orders that would deal with situations that have not as yet come into being. In particular, the situation of the father living in Adelaide or coming to visit there regularly. Indeed these are situations which she would regard with some trepidation.
In principal, she is agreeable to the father having contact to the children for half of each school holiday period, provided that the children consent to the contact; it occurs at the father’s expense; she is provided with travel details 14 days in advance, detailing addresses and contact telephone numbers where the children will be staying together with a copy of pre paid tickets and on condition that the father not consume any marijuana at all during contact or alcohol to excess.
She is not agreeable to the father having contact with the children outside of Australia, although she herself would wish to be able to travel with the children overseas.
She is not opposed to telephone and email contact in principle, although she finds the times proposed and the duration suggested unduly onerous. She is opposed to the web cam proposal as being unreasonably obtrusive into her home.
She wishes to assume sole responsibility for making all long term and short term decisions concerning the children’s care, welfare and development. Although she would consent to the father having access to their school reports, she opposes him being able to contact their teachers directly.
She wishes all communications between the parties to be in writing and not involve the children. She also wishes the father to be restrained from denigrating or threatening either her or her current partner, A S.
In short, the mother’s position speaks of a tense and fractured relationship between the parties, in which she sees little prospect of rapprochement.
Background
It is now necessary to set out the matters that have brought the parties to their current position and to outline why they have each adopted the positions they have.
The father was born in Darwin on the 25th of November, 1965. He is a hairdresser and currently manages and works in hairdressing salons in Darwin. He describes himself as a businessman by occupation. He apparently owns two hairdressing salons in Darwin. He is currently living with friends in a unit in Darwin.
The wife was born in Sydney on the 16th of February, 1966. She too has a background in hairdressing and in fact the parties met when they were both attending trade school in Darwin in the mid 1980’s. However, she currently works for Optus. She and her partner, A S and J and R live in Mawson Lakes, a suburb of Adelaide.
The parties married in Darwin on the 14th of February, 1987. During their marriage they lived in Darwin, Alice Springs and in rural South Australia. The parties finally separated in October of 1995. A decree nisi was pronounced in respect of the marriage on the 15th of November, 1996.
Following separation, the children lived with their father. As a result, on the 23rd of February, 1996 consent orders were made by the Family Court at Darwin that provided that the father should have sole custody of J and R and that the mother should have regular access to them. The orders provided for the joint guardianship of the children.
The children lived with the father pursuant to this order until February of 1998. The mother went to live in the United Kingdom in November of 1996 as a result of her relationship with Mr S, whom she married in June of 1997.
Following separation, the father lived with the children in both Darwin and the Riverland area of South Australia. In January of 1998, he took the children to live in Nerang in Queensland. The mother characterises this as being a period of instability and uncertainty in the life of the children. In my view, the evidence is clear, that at least in the early part of 1998, the father’s behaviour became somewhat erratic and it seems that he was unwell. The children stayed only a short time in Nerang, living in a bus that was parked in a caravan park, before the father decided to return to Renmark. His car broke down during the journey. Arrangements had to be made for the children to be returned to Darwin. A short time later the father was admitted to a psychiatric hospital in Brisbane.
The mother was informed of the father’s difficulties and returned to Darwin and resumed the care of the children in February of 1998. Thereafter, proceedings were commenced in the Family Court at Darwin. These proceedings involved the children’s paternal grandmother, S T. She is apparently a person of some wealth who has had extensive involvement with the children. She was concerned at the prospect of the mother leaving Australia with the children. However, on the 24th of February 1998, Graham J made an interim order granting the mother the residence of the two children and permitting her to take them to the United Kingdom.
The mother returned to Darwin with the children on the 30th of August, 1998. Thereafter, on the 10th of September 1998, O’Ryan J made final orders with the consent of the parties that provided for the children living with the mother, although final orders were not made in respect of the father’s contact to the children or in respect of long term parental responsibility.
The mother, Mr S and J and R have lived in Adelaide since September of 1998. Final orders were made by consent in respect of arrangements for the children by the Family Court at Darwin on the 16th of February 1999 as follows:
1. That the husband shall have contact with the children J L T born 14 August, 1987 and R J T born 15 August, 1990, for half of each of the school holidays in each year.
2. That the husband shall have contact with the children for the first half of the school holidays in 1999 and each alternate year thereafter and the second half of the school holidays in 2000 and each alternate year thereafter.
3. That for the school holidays in April, June/July and September 1999 only the children shall reside:
a) for the first 2 days and nights of the holidays and the last 2 days and nights of the holidays with S T;
b) for the remainder of the holidays with the husband.
4. That contact shall take place in Darwin unless the parties otherwise agree.
5. That the husband shall be responsible for the costs of the children’s travel between Darwin and the place where the children reside for the purpose of contact.
6. That the husband shall advise the wife 2 weeks prior to the commencement of each visit of the telephone number and residential address of the place or places where the children shall be staying during contact.
7. That the wife shall have reasonable telephone contact with the children during contact visits with the husband.
8. That the husband shall ensure that the wife is provided with a copy of the ticket purchased for the children’s travel and shall if requested by the wife to do so contact the airline so that the children’s travel dates can be altered to allow the children to spend time in Darwin with the maternal grandparents either before or after contact with the husband.
9. That the matter be removed from the Pending Cases List.
AND IT IS NOTED
a)That each party mutually undertakes not to denigrate the other to the children.
b)That the husband undertakes not to denigrate A S to the children.
c)That the wife undertakes to procure a written undertaking from A S to the effect that he will not denigrate the husband to the children.
d)That the husband undertakes that during any time that the children are with him for contact visits he shall not smoke marijuana or consume alcohol to excess.
It seems that at the time that these orders were made, the mother wished all contact between the father and the children to take place in Darwin, as it was an environment with which the children were familiar and the contact could also be subject to the moderating influence of S T. It was agreed that the father would pay all the costs associated with the contact. It is these orders that the parties wish to change. They also wish all orders in respect of the children to be consolidated into one set of orders.
The father acknowledges that in the past he has been diagnosed with some mental disorders. These include depression, adult attention deficit hyperactivity disorder and what he describes as a sleep disorder. He has also been admitted to hospital on at least three occasions. However, no medical evidence was provided in respect of his current condition and the mother did not subpoena any notes from his current or previous treating doctors.
Since the orders of February 1999 the father has had face to face contact with J and R on a number of separate occasions as follows:
a)For one week in Darwin in the April/May holidays of 1999;
b)For one week in Darwin in July of 1999;
c)From 25 September 1999 to 9 October 1999 on the Gold Coast;
d)For four weeks in Darwin around Christmas of 1999;
e)For one week in Darwin in September of 2000;
f)From 15 January 2001 to 28 January 2001 in Darwin.
This latter occasion was the last time on which the father had direct contact with the children.
It is in large part as a result of how each of the parties has perceived these past periods of contact that has motivated their present positions in respect of future contact. It is the father’s position that the mother has been unduly restrictive and inflexible about contact and, as a result, is seeking to remove him as a significant figure in the children’s lives. It is the mother’s position that the father is unreliable, unbalanced and irresponsible in respect of arrangements for contact and, as such, she is unwilling to agree to any orders other than those that are quite strict in their application in respect of contact.
Since January of 2001 there has been no contact between the father and the children. Since that time, it seems that communication between the parties has become increasingly problematic and vitriolic. The parties blame each other for these difficulties. The father alleges that the mother has unreasonably rebuffed his request to have contact in both Adelaide and Darwin. It is the mother’s position that the father has either shown no interest in contact or left his requests for contact to such a late stage that it is neither possible nor reasonable for them to be fulfilled.
Because of past difficulties, the mother has demanded strict adherence by the father to the provisions of the orders of the 16th of February 1999. The father has wished to move to a more liberal and flexible arrangement, particularly one that would allow him to visit the children in Adelaide from time to time and have holidays with them away from Adelaide. He has also suggested that he is considering moving to live in Adelaide on a permanent basis. These are the chief factors motivating his current position.
The parties each acknowledge that the father’s relationship with J and R has severely deteriorated since January of 2001. For his part, the father acknowledges that his relationship with his sons is now virtually non existent. He also acknowledges that J has become involved in the dispute between the parties and was, to a certain extent, acting as an intermediary between the parties. In June of 2002, there was an unfortunate altercation on the telephone between J and his father. As a result, it is now the mother’s position that neither J nor R wish to see their father or speak to him on the telephone.
The issues
Given this background the relevant issues in this case appear to be the following:
·Is it appropriate and likely to be in the best interests of the children concerned for the father to be excluded from long term responsibility for decision making in respect of the children concerned;
·In the circumstances of the case, how realistic are the father’s proposals for a more fluid arrangement in respect of his contact to the children and in particular, is it appropriate to fashion orders that would allow regular contact to occur in Adelaide either in the event that the father is visiting Adelaide or living in Adelaide;
·Given the poor state of relationship between the parties and the difficulty they have in directing communication with one another, how fixed or fluid should arrangements for contact be and how should information relating to contact be conveyed between the parties;
·How should any orders for contact recognise the wishes of the children concerned and in particular their apparent current position that there should be no contact with their father;
·What, if any, is the relevance of the father’s past history of mental illness;
·Is it appropriate for either or both of the parties to be permitted to travel overseas with the children;
·What are the appropriate orders for contact by telephone, email and video cam.
The evidence
The father relied on the following affidavit filed on his behalf;
a)An affidavit of himself filed on 23 July 2002
The mother relied on the following affidavit filed on her behalf:
a)An affidavit of herself filed on 6 August 2002.
Both parties were represented by counsel at the hearing before me on the 8th of August, 2002 and each was cross-examined by counsel for the other party. The mother could not be present in Darwin at the hearing of the case and accordingly arrangements were made for her to attend and give her evidence by way of a video link from the Family Court in Adelaide.
It was my impression that the parties are very different temperamentally. The mother attended Court formally attired in a suit. The father was more flamboyantly dressed in black. His hair, no doubt as a result of his occupation, was bleached and spiked in appearance. He appeared younger than his 36 years.
The mother gave her evidence in a clear and determined manner. On occasions she was liable to be argumentative with counsel for the father, Mr Black. She did not strike me as either a shy or retiring person, quite the contrary. She was a person more than capable of conveying her views in a strong fashion. She seemed to me to be a well organised and focused person. Certainly, she seemed to me to be devoted to the well being of the children concerned. She did not attempt to disguise her annoyance or frustration at what she saw as the feckless and unreliable tendencies of the father. If I had any criticism of her at all, it may be that at times she has a slight tendency to be domineering.
The father, on the other hand, in spite of his outward flamboyance, seemed diffident and distracted when he gave his evidence. His responses to many questions were flat and his answers at times vague and rambling. He admitted he finds that he has memory lapses from time to time. I formed the view that he is quite highly strung and emotionally vulnerable. Some of his answers to questions were unsatisfactory. By this, I do not mean that he was deliberately dishonest, rather he was unable to grapple with the import of the question being asked of him.
As a result of my impressions of each of the parties, I formed the view that on balance, where there was a discrepancy between the evidence of the father and the mother, the evidence of the mother was to be preferred. Overall, the evidence indicates that the mother is likely to be well organised in advance in respect of arrangements. The father is not. The father is likely to be impetuous and ill disciplined. The mother is not. In these fundamental matters, they are chalk and cheese. I also formed the impression that the father was liable to flare up and lose his temper, particularly whilst feeling frustrated. In such a frame of mind, it was likely he would say things in the heat of the moment that he would have cause to regret later. I do not think that he is likely to be a physically violent person, although his verbal outbursts are upsetting to those who witness them.
However, having made these observations, I have no reason to doubt the love and affection the father feels for both J and R. Up until February of 1998, he was intimately involved with all aspects of their care. I accept that he is an affectionate person and demonstrative in the manner in which he expresses his affection. I was touched when he indicated that he would like to be able to give his sons a kiss and a cuddle and when he said “I live for my boys”.
Having made these preliminary observations in respect of the evidence of each of the parties, it is now necessary to turn to some specific matters.
i) The father’s mental state
In her evidence, the mother expressed concern at the lack of evidence concerning the father’s current state of mental health. She also expressed concern at the father’s difficulties in planning and the impulsivity in his behaviour he displayed from time to time. By implication, she suggested that these difficulties stemmed from the father’s mental state.
The father acknowledged that in the past he has been diagnosed as having suffered from depression and a sleep disorder. He also indicated that he had previously been diagnosed with adult attention deficit hyperactivity disorder. He was, in my view, somewhat vague about the manner in which these various conditions affected his personality and to my mind his evidence lacked candour when he discussed his current treatment, condition and symptoms. In this regard, it was a telling matter that he failed to provide any evidence from his current psychiatrist, Dr Parker.
In his evidence, the father indicated that he took what he described as “happy pills” each evening. These are an anti-depressant medication. He also takes sleeping tablets. He also indicated that he smoked marijuana each evening prior to going to sleep but said that he had not been advised to desist from marijuana use by his doctors. I found much of the father’s evidence about his medical condition to be glib and unsatisfactory. For example, when asked what would happen if he did not take his medication he answered “I won’t kill anyone”. I can understand why the father would be reluctant to talk about his condition and why he would find it difficult to answer questions about it. However, the general tenor of his evidence left me with a feeling of disquiet. This sense of disquiet was heightened when I considered the past history of difficulties between the parties and the mother’s criticisms of the father for being unreliable.
ii) The Gold Coast Holiday of October 1999
The father has long found the mother’s stipulation that his holiday contact to the children take place in Darwin to be unduly onerous and restrictive. To her credit, the mother consented to the father having contact with the children on the Gold Coast during September and October of 1999. It seems that part of the reason the mother consented to this arrangement was that the father indicated that his mother would be taking part in the holiday and that they would all be staying with his aunt.
I accept the mother’s evidence, which in part was corroborated by the father, that he and the children did not in fact stay with the aunt, as had been indicated would happen to the mother. When this state of affairs came to the knowledge of the mother, she was caused a great deal of distress and alarm. Three days later, the children telephoned the mother and advised her of the address and telephone number of apartments where they were staying. However, when the mother rang back, she learnt that the father and children had vacated the apartment without paying the bill. The children later telephoned to inform the mother of another address and telephone number. Finally, the children missed the flight that was to bring them back to Adelaide and Mrs S T had to make alternative arrangements to return the children to the mother.
To my mind, this behaviour on the part of the father, exhibits a lack of both responsibility and consideration for the mother. She must have been very worried indeed. I have no doubt that she was gravely concerned at the father’s behaviour. For some reason, he seems to actively resent having to tell the mother what his exact plans are. This behaviour does him no credit and cannot be calculated to improve the difficult relationship between the parties.
iii) Previous arrangements for contact
Apart from the September 1999 holiday on the Gold Coast, all previous periods of contact have taken place in Darwin, where the father has lived and until recently so has his mother, Mrs S T.
The father acknowledges that he has a turbulent relationship with his mother. He describes her as being “very controlling” of him. He has however, lived with her from time to time and she has undoubtedly assisted him financially from time to time, in respect of making arrangements for his contact with the children. It also seems that the mother has some confidence in Mrs T.
It seems to me that between February of 1999 and January of 2001, the contact that took place occurred as a result of the efforts of the mother to ensure that it did indeed take place and the willingness of Mrs T to, on occasions, pay for the costs of travel involved and assist in making arrangements. It should also be pointed out, that the mother’s parents also live in Darwin and they have played some part in arrangements in respect of contact.
Regrettably, since January of 2001, there has been no physical contact between the children and their father. I accept the mother’s evidence that this has largely been as a result of the behaviour on the part of the father in either being not willing to take contact in Darwin as the orders of February 1999 envisage or failing to make arrangements until the last moment.
The father concedes that he was not available for contact in April and September in 2001. The mother demanded adherence, as she was entitled to, to the orders of February 1999 in respect of contact in July and December of 2001 – that is that the contact be in Darwin she be provided with a copy of pre paid ticket for the children’s travel which would allow for the times of travel to be altered and she be informed of the residential location of contact 14 days in advance. From time to time, the father has had difficulty in obtaining such flexible fares because of the cost involved. I accept the mother’s evidence that she sent advance emails to the father requesting details from him of his proposed arrangements for contact and that the details were not forthcoming.
Both parties blame the other for the failure for contact to take place from January 2001. No doubt the difficulties the parties have in communicating with one another has exacerbated the problems, but it does seem to me that a large part of the difficulty has rested with the father in failing to make arrangements well enough in advance and then formally to advise the mother of these arrangements. These difficulties have exhausted whatever reservoir of good will there was between the parties. Both parties have become increasingly frustrated with one another and things reached a new low in June/July of 2002.
iv) The altercation between J and his father
I accept the mother’s evidence that the children have become increasingly disappointed at the failure of the father’s plans for contact to materialise. They have felt let down. Unfortunately, due to the difficulties that the parties have in communicating directly with one another, J has been enlisted as an intermediary by the father. In the charged atmosphere of communications between the parties, this was unfortunate and fraught with danger.
The father became frustrated at the failure of arrangements to be finalised for his contact to the children in the mid year school holidays that have just passed. He apparently had financial difficulties in buying the required tickets. During a telephone conversation with J and in the heat of the moment, he said certain things to J that he now regrets. The father concedes that J is quite a sensitive child and that care has to be taken with him. I also accept that the father now deeply regrets what he said. However, it seems clear that J was upset at what was said to him and apparently is now unwilling to consider contact with his father. In my view, it is important for all concerned that the rift between J and his father be mended as soon as possible. The longer the rift continues, the harder it will be to bridge.
v) The father’s future plans
As has already been indicated, the father has indicated that he may in future move to live in Adelaide. In my view, his plans are uncertain and nebulous. He speaks only generally of acquiring commercial premises in Adelaide, presumably for a hairdressing salon, although he does not specify as such.
There is a lack of detail in respect of the father’s future plans. In his affidavit, he says as follows:
“I have re entered the business world and have now established two businesses in Darwin. These have good potential but they have not yet realised that potential due to the fact that they are still gaining market share. I have done well given the financial situation of many businesses in Darwin. My businesses have advanced to the stage where I am now looking to expand into Adelaide, in the coming financial year.”
No detail of his income is provided. In many ways, the nature of his lifestyle in Darwin is somewhat itinerant. He indicated, in his evidence, that for the past few years he has either been living with his mother at her home in Cullen Bay or living on a temporary basis with one or other of his employees. It is his practice to “grab a room” for six months. These indications serve to underline the temperamental differences between the parties. I think that the father likes to give the impression that he is a free spirit. The mother is apprehensive about the possibility of the father appearing without notice in Adelaide. I gained the distinct impression that the father would not consider moving to Adelaide without orders for contact being made in his favour that were acceptable to him. Accordingly, I formed the view that he has no definite plans to move to Adelaide.
Mrs T has apparently sold her home in Darwin and plans to spend her time in future travelling, either in Australia or in the Untied Kingdom, where she has relatives. Accordingly, I am not sure what future role she proposes for herself in respect of the father and herself and the children.
I have reached the view that I can attach no certainty to the father’s proposal that he will move to Adelaide to live in the foreseeable future. Similarly, there seems no certain proposal from him, that he plans to visit Adelaide on any regular basis. As a result, in the circumstances of this case, I am reluctant to make orders on a hypothetical basis, especially when there is such an existing degree of conflict between the parties and when there have been considerable blocks to the commencement of any direct contact for the past 18 months. I can see no utility, in these circumstances, to the making of orders that may never be utilised but which may heighten tensions between the parties.
vi) Overseas travel
The mother wishes to be able to travel overseas with the children from time to time. She has no firm plans at the present time but wishes to avoid the necessity of having to return to Court if, and when, her plans materialise. She has travelled in the past to the United Kingdom with the children. Clearly she has strong attachments to Australia, where she and her husband own property and where they are employed and the children attend school.
She opposes the father being able to travel overseas with the children because of the concerns she has about his reliability and because he himself has never previously travelled outside of Australia.
The father too, does not have any firm plans to travel overseas. However, in future, he may wish to take the children to the United Kingdom to visit his mother. He has a long held wish to visit Wall Street, because of his interest in financial matters.
vii) Telephone contact
The father seeks orders that would allow him to have contact by telephone on two occasions each week for a minimum period of half an hour between 6.00pm and 8.00pm. The mother opposes these orders as being impractical, as the times conflict with meals and other activities in her household. She also believes that it is unduly onerous to expect the children to talk for a minimum of half an hour. She also opposes the idea of contact via a video cam, as the camera which would have to be installed, would be in the study of her home and she believes that this would be unnecessarily intrusive. The study is apparently a room used by all members of her family, including herself and Mr S. She has no objection to the father having contact to the children in a general or unspecified way by means of telephone and email.
The father complains that his telephone contact with the children in the past has been interrupted by unnecessary conversations between the children and others that have been going on at the same time as his contact. There may be nothing unduly sinister in this, if he telephones at busy times in the mother’s household. However, the father says this in his affidavit:
“If I phone the boys in the afternoon between 3.30 and 5.00pm Monday to Friday, their reaction to me is much better and more open, but I don’t like to do that because I worry that will teach them to be secretive. I worry about what will happen to them if they are found out.”
The mother says she has no objections to the father telephoning at these times. In these circumstances and bearing in mind the ages of the children concerned, I believe that on balance it is more appropriate to exceed to the mother’s request than the father’s in respect to telephone contact. I also think that it would be imprudent of me to ignore the mother’s concerns in respect of the placement of a video cam in the McG/S household.
viii) The father’s marijuana use
The father acknowledges that he uses marijuana on a daily basis. It is not appropriate that the children be exposed to the father’s marijuana use during contact. It also seems likely that the father’s marijuana use may detrimentally affect the father’s mood, and given his temperamental nature, may lead to him saying things that he may later live to regret. In these circumstances, the restrictions the mother seeks are not unreasonable ones.
ix) Injunctions
The mother seeks an injunction that the father be restrained and an injunction be granted restraining the father from denigrating or threatening her or Mr S. In submissions to me, counsel for the father sought that any such order be expressed in mutual terms. He did not seek such an order at the outset of the proceedings and can point to no evidence in support of his position, other than such a mutual order would give the impression of even handedness to the parties. The father has a volatile temperament and has, I believe, said threatening things in the heat of the moment to both J, Mr S and the mother. He may later have had course to regret his statements. The mother has not in fact spoken to the father for between 12 and 18 months. I do however, accept that she feels uncomfortable at the prospect of being brought into close contact with the father, either physically or on the telephone. She seemed to be genuinely apprehensive about the prospect of the father coming to her home in Adelaide. I have no doubt that there have been a number of unpleasant incidents between the parties in the past and these have involved Mr S. The mother’s peace of mind is an important consideration. In these circumstances, it does not appear unreasonable or unduly restrictive on the father to make the order that the mother seeks.
x) The cost of and arrangements for contact in future
The current order envisage the father paying all the costs associated with contact. He is also required to purchase tickets which allow for a change in the time of travel. These are likely to be the more expensive type of ticket. The mother seeks, that in future, the father continue to be responsible for paying for all the costs of travel relating to the children having contact with the father. She does not now seem to require that the tickets be alterable so far as the time of travel is concerned.
The father does not specifically appear to wish to change the current situation in respect of his responsibility for payment of the costs of travel for contact. Certainly, he does not elude to any such change in the form of orders he seeks. However, it seems to me that the high costs of travel for contact have been a constant irritant in respect of the relationship between the parties. The father has found it difficult to pay for travel. I have not been provided with any details of the father’s income or his daily living expenses, other than the general statement in his affidavit that he believes that his businesses have done well in the current financial situation of Darwin. Accordingly, I have no way of assessing his financial situation. In the absence of ongoing assistance from Mrs T, I have concerns about how any orders I make in respect of contact will be practically implemented.
Without wishing to be trite or unduly simplistic, the key to making arrangements for contact work, are clear and unambiguous communications between the parties in respect of proposals for contact, which are made well in advance of the time proposed for such contact.
Putting aside the concerns the mother has raised regarding J’s wishes in respect of contact, it seems that both parties are desirous of contact being resumed between the children and the father as soon as possible, although the mother would wish to be advised well in advance of when and where the contact proposed will take place and how other necessary arrangements for it are to be made. With this in mind, during the course of the hearing, I urged to parties to confer together during the luncheon adjournment to see if some practical proposals could be exchanged in respect of the father resuming contact to the children in the forthcoming September/October South Australian school holidays. Regrettably, nothing came of this.
In particular, the mother has said that she has no objection to the father having contact to the children for half of all school holidays at a location to be agreed between the parties. In regards to the locations, she has indicated that she would not agree to a location outside of Australia or one that she regarded as dangerous. In this context, it is difficult to think of a location within Australia that is inherently dangerous. She would like to know of any proposed itinerary and the addresses at which the children will be staying during contact and details of telephone numbers at which they can be contacted. Above all, she would wish to be presented with a certain arrangement for contact in advance. Ideally, she would like to be given at least 6 weeks notice of any period of contact the father proposed to take and to be provided with proof the necessary tickets had been paid for 2 to 4 weeks in advance of the contact. In the context of this case, these do not seem to be unduly restrictive requirements. However, given his temperament, I believe that the father may perhaps regard these strictures as being unreasonable. As I have already observed, he seems to object to providing such details to the mother. However, the provisions of such information seems to me to be the key to the improvement of the parenting relationship between the parties.
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principals underlying this object are set out in section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for J and R.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) 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 in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. The matters that are to be taken into account under section 68F(2) are:
a)the wishes expressed by any child concerned;
b)the nature of the relationship between the child with his or her parents;
c)the likely effect of any change in the child’s circumstances;
d)the practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
f)the child’s maturity, sex and background;
g)the need to protect the child from physical or psychological harm;
h)the attitude of the parties to the responsibilities of being a parent;
i)any family violence that may involve the child or a member of the child’s family;
j)whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child concerned.
I now turn to consider the matters under section 68F(2) that I consider to be relevant in this matter.
a) The wishes of the children
I accept that at the present time the children and J in particular, are expressing a reluctance to have any contact with their father. This stems from the altercation between J and his father earlier this year and the children’s frustration at arrangements not being finalised.
However, in my view, if the issue of future contact is handled with some sensitivity by both parties, it should be possible to resume relations between the father and the children. I would be concerned at the prospect of the contact in future being expressed as being subject to the wishes of the children concerned. Inevitably, it seems to me, that if the orders are expressed in such a way, there is at least the possibility of further discord between the parties as to how the children’s wishes are to be determined and by whom. This in turn has the potential to put the children under more rather that less pressure.
As I say, the mother is not adverse to contact taking place per se. What she requires is notice and certainty in respect of the contact. So do the children. If these requirements are met, I am confident that she would be supportive of contact taking place in future and would assist the children to prepare for and be accepting of contact. To a certain extent, the ball is in the father’s court.
b) The nature of the relationship between the children with his or her parents and other significant persons
The children clearly have a close and loving relationship with one another and their mother. It seems clear to me that they have a full and rewarding life in Adelaide. As the children grow older, it is likely that their activities at school and outside of the home will assume greater importance.
I also have no doubt that the father has played a significant role in the lives of both J and R. He, after all, was their sole carer for a number of years. He also had regular contact with the children following the time the mother resumed the care of them until about 18 months ago. In my view, it would be tragic for all concerned, if the rift between the children and the father was to deepen. In my view, it is important that steps be taken for the children to have contact with the father sooner rather than later. In reaching this conclusion, I bear in mind the entitlement of children to have regular contact with both their parents.
It is clear to me that J has been more affected by the conflict with his father than R has. I accept that R is in some ways a more confident and outgoing child than J. It seems to me that the boys will support each other in preparing for any contact that is ordered by the Court.
c) The practical difficulty and expense in respect of contact
Clearly, there are a number of practical difficulties that impact upon J and R’ entitlement to have regular contact to their father. Not the least of which is the difficulty the parties have in reaching a concluded regime as to how each period of contact is to take place. One of the father’s wishes is to be able to take the children with him for periods of holiday contact away from Darwin. His preferred destination seems to be the Gold Coast. In principle, it seems that the mother does not object to this, provided she is provided with relevant details and tickets for travel have been purchased in advance. It seems to me that it would be appropriate for the father to be able to take the children with him to appropriate holiday destinations within Australia. In this regard I bear in mind that J and R are now 15 and 12 years of age respectively. They would be able to cope with such a holiday and are certainly now much more self sufficient than they were in 1999. Clearly, they would be able to telephone their mother from time to time.
It seems to me that if a definite regime is established for each period of contact and the parties adhere to this regime, a large number of the practical impediments to contact can be removed or at least alleviated. It does not seem to me to be unreasonable that the mother be given advanced notice of contact and where it is proposed that it should take place. It also does not appear to me to be unreasonable, in the circumstances that the father is going to be paying for the costs of travel, that the mother be provided with the details of travel in advance and proof that the necessary tickets had been paid for. These do not seem to me to be onerous conditions on the father. They do however, require a certain degree of pre-planning. As I have already said, the ball is in the father’s court in this regard.
The parties are in disagreement as to when holiday contact should begin. The father says at 5.45pm on the last day of school. The mother says at 7.00pm on the same day. With the greatest respect to the parties, this is silly. Times should depend on travel details and when the relevant flight departs.
The father wishes to move to a more flexible regime in respect of contact. Unfortunately, in my view, the parties simply do not have the open and trusting relationship in respect of the parenting of J and R that would enable such an arrangement. Sadly, the father has not got “the runs on the board” that would lead the Court to believe that he would be able to adhere to the responsibilities that would entail to him from such a flexible arrangement. In my view, arrangements for contact need to be clear and fixed and not subject to the whim of the father.
Some separated parents do have the type of relationship that would enable one parent to arrive virtually unannounced for contact. These parties are not in that category. In my view, it is not appropriate to make orders that envisage what I regard as the hypothetical situation of the father living in Adelaide, certainly not for alternate weekend contact. The father’s plans to move to Adelaide can only be described as vague. The question remains whether orders should be made to allow contact on at least some basis that in the event that the father does happen to be in Adelaide for any reason. The proposal does cause me some concern because of the difficulty that the parties do have in communicating with one another. However, after some consideration, I have determined that such contact would be appropriate, if subject to rigorous conditions regarding notice and if it only occurred once per term and does not disrupt the children’s pre-existing commitments. I have reached this position bearing in mind it is easier for one person to travel than two and if the father is in Adelaide on business it would be sad if he could not spend some time with the children.
d) The capacity of each parent to meet the children’s needs
I am satisfied that the mother is able to meet the intellectual and emotional needs of the children. I do not hold the same confidence in respect of the father. There is evidence, that I accept, to indicate J has been subject to some upset as a result of the recent outburst of his father and that both children have felt let down and abandoned because contact that has been promised has not in fact taken place.
Children of all ages require consistency of approach in all aspects of their care. It is important that if children have an expectation that contact will occur, that the father does what is required of him to ensure that the contact does in fact take place. If the father does this, it will also have the consequence of protecting the children from any further psychological harm. It seems to me that Mr T has some work to do to re-establish the trust of his children.
e) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
J is now 15. R is 12. J in particular is rapidly reaching an age when it is probably no longer appropriate to make orders relating to contact. Given this situation, it is desirable that orders be made that will minimise the prospects of the parties seeking further orders form the Court in future. Litigation is costly in both financial and emotional terms. It is also potentially destructive of the parenting relationship between the parents of the children concerned.
As I said at the outset, the father seeks an omnibus order that will cover all manner of situations regarding his contact to the children, particularly in the event of his coming to live in Adelaide on a permanent basis on some unspecified date in the future. At first blush, it is an attractive argument to justify the making of such an order that it will prevent further proceedings between the parties. However, in my view, it would be imprudent of me to make such orders in the absence of firm proposals and specific details from the father. In my view, the making of such order has the potential to lead to more, rather than less litigation, because of the level of uncertainty of the father’s proposals set against the background of mistrust between the parties.
Conclusions
This is a sad case. Sad because of the rift that appears to have opened between J and his father and because of the period of time that has lapsed since the father last saw the children. No doubt his frustration has grown in the last 18 months. In my view, it is important that contact be resumed as soon as possible. Whether it can be successfully resumed depend on the parties being able to work together and to a large extent the father being able to comply with the orders that will be made. It is incumbent on him to demonstrate that he can be reliable and trustworthy. For reasons already provided, I do not believe that there is currently the prerequisite level of cooperation to enable the parties to move to the flexible regime for contact as wished by the father. The orders for holiday contact must be necessarily fairly rigid. I do not believe that at this stage the contact should be subject to the wishes of the children concerned. I am satisfied, that if appropriate notice is given, the mother will be encouraging of contact taking place. It will be the responsibility of the father to make the necessary arrangements for contact in advance and inform the mother of them.
It is a significant thing to exclude the father from long term responsibility for decision making regarding J and R as the mother seeks. It is clear from an analysis of Part VII of the Family Law Act and in particular section 60B, that one of the objects of the Act is to promote the continuing role of both parents in the lives of their children, no matter what the parents’ status might be (see Cooke & Stehben (1999) FLC 92-839). To exclude the father from long term responsibility for J and R does not accord with this object.
I did not form the view that the father is a disinterested parent. Quite the contrary. It seems to me that he does wish to play a parental role in the lives of his children. Pursuant to section 61C of the Family Law Act, each parent of a child under the age of 18 has parental responsibility for that child. It is clear that the parties in this matter have great difficulty in reaching agreement in respect of very many things. However, in my view, that of itself is not a sufficient reason to exclude the father from all consultation in respect of major issues affecting the children. As a matter of practice, it will be inevitable that each parent will have to make individual decisions about the children when they have the sole physical care of them. The obvious import of the legislation is that there should be consultation between the parents in respect of major issues affecting the children, such as major surgery and place of education. I am not prepared to exclude the father from this process of consultation. Part of any consultative process is being informed of matters relating to the development and care of the children concerned. I think that it is appropriate that the father should have copies of the children’s school reports as the mother proposes and that the father be permitted to consult with the children’s teachers in respect of those reports. It would be regrettable if the father was not consulted in respect of any decision that had to be made regarding any major surgery that the children might have to undergo. Given the ages of the children concerned, it is likely that there will not be many decisions that will have to be taken of a major nature in respect of the children in the future.
Given the circumstances of the mother and in particular the fact that she has travelled overseas before with the children and has strong connections to this country, I believe that it is appropriate to make the order in respect of future overseas travel. I have reached this conclusion for pragmatic reasons and in order to avoid further proceedings between the parties in this respect. I also believe that it is appropriate to grant the injunction she seeks in respect of denigration of her by the father.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 15 August 2002
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