TR and JJ - [2002] FMCAfam 227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T R & J J

[2002] FMCAfam 227

FAMILY LAW – Children – residence – contact – specific issues – health issues – family violence – apprehended violence order

Family Law Act 1975 ss. 60B; 65E; 68F;
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755

Bright and Bright v Bright and Mackley (1995) FLC 92-570
Re Hodak; Newman; Hodak (1993) 17 Fam LR 1; FLC 92-421
Paisio (1979) 4 Fam LR 689; (1979) FLC 90-659
Grimshaw (1981) 8 Fam LR 346; FLC 90-090

Applicant:

T R

Respondent:

J J

File No:

PAM 1039 of 2002

Delivered on:

18 July 2002

Delivered at:

Parramatta

Hearing Date:

16 & 17 July 2002

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Devere

Solicitors for the Applicant:

Coleman & Greig

The Respondent:

In person

ORDERS

All previous Parenting Orders are discharged.
The child, J P J born 11 January 2001, is to reside with the Applicant mother who is to have the sole responsibility for the long term care, welfare and development of the said child, to include the responsibility for authorising any necessary surgical treatment of the said child.
The parties are to have the responsibility for the day to day care, welfare and development of the said child whilst he is in their care pursuant to these Orders.
The Respondent father is to have contact with the said child as follows:
(a)Until the said child attains the age of three years:
(i)Each alternate Sunday from 9.00am to 4.30pm;
(ii)Each Monday from 9.00am to 12 noon;
(iii)Each Wednesday from 4.00pm to 7.00pm, such contact to take place at the mother's residence;
(iv)Each Father's Day from 9.00am to 4.30pm;
(v)Each Boxing Day from 9.00am to 4.30pm;
(vi)For a period of not less than two hours on the child's birthday each year;
(vii)By telephone on one occasion each week; and
(viii)At such other times as the parties shall agree.
(b)From 11 January 2004 until the commencement of the second term when the said child attends school:
(i)Each alternate weekend from 9.00am on the Saturday to 5.00pm on the Sunday, provided that if the Monday following a contact weekend is a public holiday, then contact will conclude at 5.00pm on the Monday;
(ii)Each Wednesday from 4.00pm to 7.00pm;
(iii)Each Father's Day from 9.00am to 5.00pm;
(iv)Each Boxing Day from 9.00am to 5.00pm;
(v)For a period of not less than two hours on the child's birthday each year; and
(vi)At such other times as the parties shall agree.
(c)From the commencement of the second term in the year that the said child commences school:
(i)Each alternate weekend during school term time from 5.00pm on Friday to 5.00pm on the Sunday provided that if the Monday following a contact weekend is a public holiday, then contact will conclude at 5.00pm on the Monday;
(ii)Each Wednesday from 4.00pm to 7.00pm or on such other weekday as the parties shall agree;
(iii)Each Father's Day from 9.00am to 5.00pm;
(iv)Each Boxing Day from 9.00am to 5.00pm;
(v)For a period of not less than two hours on the child's birthday each year;
(vi)For a period of up to seven days during each of the school holidays at such times as the parties shall agree;
(vii)By telephone on one occasion each week; and
(viii)At such other times as the parties shall agree.
The father is not to exercise contact other than telephone contact on Mother's Day or the mother's birthday.
In the event that the father's contact would fall on the Australia Day long weekend then such contact will not take place between 9.00am on the Friday immediately before the weekend and 6.00pm on the Monday and the mother will make the said child available for contact for the same period of time on the first available day thereafter.
For the purpose of exercising contact pursuant to these Orders, the father will collect the child from the mother's residence at the commencement of each contact period and return the said child to the mother's residence at the conclusion of the contact period.
The father will do all things necessary to ensure that the said child attends upon the M program at W P H on Mondays during his period of contact.
The mother is to give the father 14 days notice of her intention to take the said child out of the State of New South Wales for any purpose.
The mother may suspend contact for a period of up to 14 days on one occasion each year, for the purpose of taking the child for a holiday, upon her giving her the father 14 days notice of her intention to do so, provided that the mother makes the said child available for additional contact to make up for contact foregone by the suspension within one month of her return.
The mother make take the said child to the E P Correctional Centre for the purpose of visiting Y A J on no more than one occasion each month, provided that the child remains in the area designated for visitors and under the control of the mother at all times.
Neither parent is to permit the said child to remain in the presence of any person who is administering to himself or herself any prohibited drug or is affected by a prohibited drug.
The Application is removed from the Pending Cases List.
By consent, I make Orders in accordance with paragraphs 1 to 4 inclusive. I note these are in addition to the Orders handed down today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1039 of 2002

T R

Applicant

And

J J

Respondent

REASONS FOR JUDGMENT

Application

The Application before the Court is an application by the mother for Orders concerning the child of the parties, a boy called J P J who was born on 11 January 2001.
The mother seeks an Order, and it is not in issue, that this child should reside with her. She seeks Orders relating to the father's contact with this child in a three stage process. I will examine that proposal in due course. The three stages, however, relate to the time from now until he reaches the age of three; from his third birthday until commencement of his second term at school; and from the commencement of second term of school until he grows into an adult.
As well as Contact orders there are some Specific Issues Orders. The particular issue that the mother is concerned about, she seeks an Order that she should have the sole responsibility for decision regarding any medical procedure for blood transfusion of the child.
The father has filed a Response. In that Response he seeks what is described as a "Joint Residency Order" but on the face of the Orders that are sought, there is a concession that the mother will remain the primary care giver of this child.
Again, the father's proposals for the time that J spends with him are in a three stage process, incorporating the same three stages as in the mother's Application. There are also Specific Issues Orders saying on the face of the document that the father seeks an Order restraining the mother from removing the child from the Sydney metropolitan area, although that in effect is not now the Order the father's seeks; and also, an Order restraining the mother from taking the child to the E P Correctional Centre.
There have been Interim Orders made by this Court after the interim hearing on 29 April providing, at that stage, for the parents to have joint responsibility for decisions relating to the child and that the father have contact on Monday and Wednesday evenings, alternate Thursdays, alternate Sundays, Father's Day and other times.
The history of this matter is that this child was born on 11 January 2001. There are a number of unusual factors, which are of some relevance to the case. The mother was diagnosed with HIV in May of 1993 which she believes she contracted from a former partner. The mother was unaware at the time, she says, that the partner was an intravenous drug user. The mother now is in a regular program of treatment and takes various medications and it appears that the condition is under control. I heard evidence from Dr K about that.
The mother has formed a relationship with Y A J who is the sister of the father. Ms J is currently incarcerated in the E P Correctional Centre. She had been serving a sentence of periodic detention. As a result of her inability to comply with the terms of the periodic detention, the sentence has been converted to a full time sentence and she will be incarcerated in E P for the rest of this year.
The child was conceived however. There is no doubt that the Respondent is the father of that child and the birth certificate confirms that and that is accepted by all of the parties. It is fair to say that the father has taken a somewhat critical view of the mother's relationship with his sister and he is certainly critical of his sister's involvement in crime and also her history of involvement in the past with illicit drugs. The evidence before me indicates that the sister is currently undergoing a methadone program and had previously been involved in prohibited drugs.
The father is concerned the child should not have anything to do with his sister, the child's aunt, and he is concerned about the child being taken into a prison. Certainly, it is the mother's intention that she would be taking the child for regular visits to see Miss J.
It is also a matter of relevance in these proceedings, the father is an adherent of the Jehovah's Witness faith. The father has given some evidence of that and was cross-examined about it, and has indicated his views and his desire that his son should have some knowledge of the faith. He acknowledges, however, that the mother is not an adherent to the faith. She is in fact a Catholic and the child has been baptised. Nevertheless, it is the father's not unnatural wish that his child should have some knowledge of his own faith.
Certainly there has been contact, whether by agreement or by Order of this Court, during the relevant period of time. It is also common ground that J, who is now some 18 months of age, has only spent one night away from his mother and that was in the care of the father.
Dealing with that background, I look at the general principles that the Court should consider in this matter. Courts exercising jurisdiction under the Family Law Act are required to take into account section 65E of the Act, in parenting matters. This section lays down that the Court must regard the best interests of the child as the paramount consideration. There are also a number of principles set out by section 60B(2) of the Act. They must be taken into account except if the application of any of them is or would be contrary to the child's best interests.
Subsection 60B(2)(b) refers to children's right to contact on a regular basis with both the parents and other people significant to their care, welfare and development, bearing in mind that the Court is obliged by section 65E to regard the best interests of the child as the paramount consideration.
Section 68F(2) sets out a number of matters the Court must consider in determining what is the child's best interests. There are 12 of them in all, subsection 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case but all of them must be considered and the Court has done so in this matter.
Where a child is capable of expressing cogent wishes, section 68F(2)(a) requires that those wishes be taken into account. At this stage, the child is of such immature years that his wishes have not been sought. Indeed, it would be surprising if a child of 18 months were held to be giving independent views that the Court would act upon. As I said, it is relevant, and it is also relevant under section 68F(2)(f) that the Court looks at the state of maturity of the child, the child's background, and the child's sex.
The Court has to consider the nature of the relationship of the child with each of the child's parents, where applicable and with other persons. This is certainly relevant in this case. The late Treyvaud J referred in the case of Bright and Bright v Bright and Mackley (1995) FLC 92-570 to the desirability of a child having contact with grandparents and other members of the extended family. He looked at that in the light of the welfare of that child being the paramount consideration. The words of his Honour are relevant to these proceedings where his Honour said: It is very important to children's proper upbringing and development that they have contact with a much wider family than merely parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
Of course, Miss Y A J is the father's sister. Leaving to one side the relationship between Miss J and the mother, she is also the child's aunt. She is certainly part of the extended family. The relationship between the father and his sister is somewhat strained at the moment but there is evidence to show that the father quite properly and compassionately provided material to the District Court which would assist the Court in understanding the difficulties that his elder sister had gone through in her childhood.
It is also noteworthy that the mother's own father resides in the State of Queensland. The mother would wish to take J to see J's maternal grandfather from time to time. The father gave evidence on this very point. He, to do him credit, spoke in positive terms of the relationship with the maternal grandfather. He did not wish to stand in the way of such a relationship and understood that that would involve from time to time not only the grandfather travelling to Sydney, but the mother and the child travelling to Queensland. The father indicated in cross-examination that whilst the Order that appeared on the Response would have the effect, if taken strictly into account, of prohibiting travel to Queensland to see the grandfather, that did not accord with his wishes. Indeed, he indicated a commendable appreciation of the importance of such a relationship. It is clearly a matter that the Court will take into account.
Subsection 68F(2)(c) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect of separation from a parent or any other child or any other person with whom that child has been living. This is a matter that is relevant here; it is a matter that is relevant in a lot of residence applications. It does involve the Court looking at the proposals that each party has to offer to see how they will affect the child. It has been summarised as a test which would require the Court to look at how would a proposal improve the situation of the child.
The change in the child's circumstances which is particularly relevant would involve the father's proposal for overnight contact. It will be recalled that the mother adopts the view that overnight contact should commence after the child is in Term 2 of school. Her proposal for when the child reaches the age of three up till commencement of Term 2 of school, is that there should be weekend contact on a daytime basis with the child going home at night.
The father was cross-examined on this and whilst he indicated that he accepted that the commencement of Term 2 at school was an appropriate time for an increase in the contact, he clarified any confusion that may have existed by pointing out that he had not altered his position from the fact that he considered it was appropriate for overnight contact to commence at the age of three. He was not of the view that there should not be any overnight contact until the commencement of Term 2.
The Court needs also to consider the practical difficulty and expense of a child having contact with a parent. This is set out in section 68F(2)(d) and is subject to the principle that the best interests of the child remains the paramount consideration; I refer to B and B: Family Law Reform Act 1995 (1997) FLC 92-755.
There is no great practical difficulty or expense, at this stage, in respect of contact. The mother lives at W P H. There is no evidence, at this stage, to indicate an imminent departure from that area. The father lives in P. I can take judicial notice of the fact that to travel by motorcar from P to P H, depending on the traffic, can be achieved comfortably in about half an hour; perhaps not at six o'clock on a Friday evening travelling north, but for most cases it is a comfortable half an hour trip. The expense, therefore, is not disproportionate.
It is also relevant that the father is self-employed and has the capacity of adjusting his working hours to meet the times when he is able to spend with his son. He has also indicated a willingness to do so. The father also indicated a desire to be flexible with arrangements and again, to make those adjustments in order to arrive at times that would not inconvenience the mother.
The Court must consider the capacity of each parent where relevant to provide for the needs of the child, including emotional and intellectual needs. This is set out in subsection 68F(2)(e). The mother is the primary care giver and indeed J has been with her all his life, except for the odd night away. She has some health problems as a result of her condition. At times, she becomes ill, she becomes nauseous. Obviously, when she is sick that would affect her physical capacity to provide for the physical needs of the child. There is also the question of the prognosis of her condition. It certainly appears that the prognosis is good at the moment, from the evidence of Dr K, but the father has raised the concern and the mother has not shied away from the fact that the situation could change. It is to be hoped, of course, that the apparent state of good health will continue for a long period of time.
The mother and the father have both demonstrated, to my mind, an understanding of the intellectual needs of this child. There is no issue about the fact that J seems to be a bright child, bright and advanced. Indeed, the father has compared him, perhaps unkindly, with a playmate approximately the same age called A, but certainly the father's opinion, from observation that J is far more advanced than the unfortunate A. The mother is of the view that playing regularly with A is still, however, important for this child's social development and it is well understood by Court's exercising jurisdiction in this area that it is good for children to play together with other children of about their own age. It may well be that poor A is not as bright as J but nevertheless the Court could see that there is benefit in his interaction with her.
The parents have also agreed that the child should attend the M program and that is already underway. Indeed, the father indicated his willingness, and indeed his enthusiasm, for being involved with this program on a Monday and his willingness to take the child there and his understanding that it means that you do not just drop the child there and go and pick him up later; that you have got to be there and participate. He indicated a willingness to be involved in that. Certainly, on what is before me, it would appear that the M program is most beneficial to children's welfare and clearly both parents understand that.
There has been some evidence mildly critical of the father's physical ability to cater for the physical needs of the child. The criticism, as I have said, is comparatively mild. It should be seen through the prism of the difficulties in the relationship between the father and the mother. It is not suggested the father is an uncaring father but certainly suggested that he is an experienced one. Of course, the way to deal with inexperience is to give experience and to give instruction. I am certainly satisfied that the Respondent father possesses the ability and the motivation to become an experienced father.

I have previously referred to subsection 68F(2)(f) because it requires the Court to consider the child's maturity, sex and background. As I said, we have a little boy who is 18 months of age, spent pretty well all of his life in the immediate proximity of this mother and is having regularly contact with his father.
The Court also takes into account the need to protect the child from physical or psychological harm, either by being directly subject or exposed to abuse, ill treatment, violence or other behaviour or by seeing or hearing another person being subjected or exposed to such ill treatment. Subsection 68F(2)(l) and (j) also deal with this issue in respect of Apprehended Violence Orders and family violence. I am not satisfied that that is an issue in this case.
The Court looks at the attitude toward the child and to the responsibilities of parenthood displayed by each parent. That is a matter of particular relevance set out in subsection 68F(2)(h). The father would take the view that the mother is perhaps being overcautious in placing some restrictions on the contact that he has with his son. The mother would take the view that the father's proposals are too widespread and in fact disruptive, especially as they involve a two-week cycle of contact on other days. The mother is also of the view that overnight contact should not commence until this child is at school. I will say more on that shortly.
The Court has to look at whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child. Of course, we are dealing with a very young child and each party has endeavoured to deal with that issue by proposing three stages of contact at different areas in the child's life. That is clearly done with the intention of coming up with a graduated regime which would cover various milestones and not require the parents to come back to Court every year or two. I will look at those stages shortly but it is notable that the parties have considered that.
The Court must look at any other relevant fact or circumstance that the Court think is relevant. Those matters can include lesbianism, homosexuality, cultural differences, or matters of religion. There are some relevant matters here. There is the relationship between the mother and the father's sister. There is, of course, the matter of religion. I will deal with those issues as separate issues.
It is fair to say that the father has raised some objections and some concerns about the mother's relationship with his own sister. The basis of that objection, however, is not on the fact that it is a same gender relationship, as much as certain matters relating to what he sees as his sister's character. It cannot be ignored that his sister is in prison. She is in prison because of her involvement with a crime of violence. It is hardly to be wondered at that the father would have some concern.
The father also has concerns about the mother's history of illegal drug use. The evidence is that she is on the methadone program at the moment, but the father has had concerns in the past about his sister's involvement with drugs. He is certainly concerned, as again would not surprise anyone, that he does not want his child involved in illicit drugs. The father is not seeking a prohibition on the child having any contact with his sister, he is certainly concerned about the child being taken into the E P Correctional Centre.
I have given consideration to that matter. Certainly by the time the child reaches 18 months and goes through to two, which effectively covers the balance of the sentence, the child is going to be aware of surroundings. If there were no evidence of the conditions in this particular correctional centre, I would certainly have some concerns. The Court can take some judicial notice of circumstances that are present in adult prisons and juvenile detention centres and certainly in my career, I have attended both. I would have a great deal of concern, for instance, at this child being taken into Long Bay, or any child being taken into Long Bay. The situation is that the Court would require some evidence of what the conditions are before making an Order, before considering that it would be appropriate for a child to go there.
I am referred to paragraphs 37and 38 of the mother's Affidavit of 8 July. She says:
“Y is serving her sentence at the E P Detention Centre and resides in a cottage there along with nine other people. The cottages are on a cattle farm. There are many women in the prison who live there with their children who are under six years of age. The Detention Centre is equipped with a children's park area with slippery dips and other equipment and toys. When people visit the Centre with children, their visit takes place in the park area unless it is raining, where the visit then takes place in a large carpeted room.”
The mother goes on to say:
“I'd like J to maintain a relationship with Y. I would like to take J to visit her one day a month. If Y is given weekend leave away from the prison, then I'd like J to spend time with her during this time.”
At this stage, there is no evidence about any immediate likelihood of weekend leave.
The evidence about the conditions for visitors in the E P Correctional Centre is such that I am satisfied that, with certain restrictions, it would be appropriate for the child to be taken there. He would have to remain under the supervision of the mother at all times and he would have to remain only in those areas, which were designated for visitors. I am not satisfied that that would create any major hardship as far as the mother is concerned, but I am certainly of a view that there needs to be some caution exercised in taking any child into a prison.
As far as the sister's history with illicit drugs in concerned, certainly people who are on the methadone program are usually on it because they want to get off illicit drugs and, in due course, they want to get off methadone. Methadone is not a prohibited drug when prescribed and a person who is prescribed methadone is not breaking the law when they take methadone as it is prescribed. I would be most concerned, however, if this child were to be in the presence of people who were administering to themselves or who were affected by illicit drugs and whilst there is no evidence that the mother has any intention of taking the child into such a circumstance, I am of the view that it is in the best interests of the child to make an Order that she does not.
The other relevant matter at this stage is the question of the father's religion. The father is an adherent, as I said, of the Jehovah's Witness faith. I have been referred to three cases relating to the relevance of people's membership of a particular faith; Re Hodak; Newman; Hodak (1993) FLC 92-421 is a decision of a single Judge of the Family Court of Australia, Lindenmayer J; Re Paisio v Paisio (1979) FLC 90-659 is a decision of the Full Court of the Family Court of Australia; and Grimshaw v Grimshaw (1981) FLC 90-090 is also a decision of the Full Court of the Family Court of Australia. The decisions in Paisio and Grimshaw are binding on the Federal Magistrates Court.
There has been some conjecture as to whether a decision by a single Judge of the Family Court or the Federal Court sitting as a Judge at first instance and not exercising delegated authority for the Full Court of either of those Courts, is binding on this Court. I am satisfied that a decision of a single Judge of the Family Court or of the Federal Judge, sitting as a Judge at first instance, is not binding on the Federal Magistrates Court but that it would be regarded as highly persuasive.
Nevertheless, I am certainly satisfied that the decision in Re Hodak (supra) is highly persuasive and it represents a synthesis by the Judge in this case of the principles set out in both Paisio and Grimshaw (supra).
Paisio was a case to decide whether the mother, who had become a Jehovah's Witness, should retain custody of the youngest child of the marriage. Grimshaw involved a decision where members of the family had been involved with the exclusive brethren. Re Hodak (supra) was a decision where the mother intended to raise the child as a Jehovah's Witness and the child had been placed with an aunt who was not of the faith. The father submitted it would be inappropriate to make an Order for custody in favour of the mother as the child's welfare would not be promoted by his involvement of the religious activities and belief systems of the Jehovah's Witnesses.
As I said, the decision of Lindenmayer J is a synthesis of the principles in Paisio and Grimshaw, and shows how they coexist quite neatly. His Honour held that the welfare of a child includes the religious upbringing of the child. The Court cannot commence with any premise that as a matter of public policy, one religion is to be preferred to another or that a religious upbringing is to be preferred to a non-religious one, nor engage upon an examination of the merits of the tenets of a particular faith. However, whilst the adherence per se of a party to a particular religious sect is not of concern, the Court must have regard to the influence of any of those religious beliefs and practices on the welfare of the child.
The primary area of concern in relation to the effect of the mother's religious belief system on the child's welfare related to the issue of blood transfusions. His Honour went on to say that in his view, the likelihood of the need arising for a blood transfusion during the child's childhood was fairly remote.
His Honour went onto look at various aspects of guardianship issues and referred specifically to an Act in the State of Queensland which is of course, not relevant here.
I was referred to a number of other decisions on that issue which, with respect, I did not find as particularly helpful or to have a particular bearing on the case. What is relevant, however, which I can take directly from his Honour's judgment in Hodak, is that the Court must look at the religious beliefs of the parties as they apply to the welfare of the child.
This child has been baptised a Catholic and his mother is a Catholic. His father is an adherent to the Jehovah's Witness faith. There is no doubt that each parent has a strong attachment to this child. The father was cross-examined about the possibility of blood transfusions and he responded frankly and with what appeared to me to be a degree of soulsearching.
The father was concerned that in the Jehovah's Witness faith there are prohibitions on people having blood transfusions and he did say that he would like J to get to know the faith, would like him to be educated in the ways of the Jehovah's Witnesses and the Catholic faith.
He went on to say that these days, in his view, there were so many alternatives to blood transfusions and that normally there would be very little need for a blood transfusion. It was put to him that if there was a situation where there was advice that a blood transfusion was necessary, what would he do. He indicated that if other alternative methods were not going to be effective, it was in his view that a blood transfusion would be unlikely to be effective and therefore one should not hold out false hope in such circumstances. The father indicated that had he had the time, and I acknowledge the fact that he is not legally represented and his legal representative had withdrawn shortly before the hearing, that he did not have the particular material to rely on.
I have considered the evidence and I have considered the father's attitudes and I consider his beliefs, which I am quite satisfied are sincerely held. The reality is that for most of the time this child is going to be in the care of his mother. Most of the time she, in other words, would be his primary care giver. Certainly, her views do not prohibit blood transfusions of which, I can take judicial knowledge, conventional medical opinion is that such procedures in certain circumstances may be effective. I am of a view that as this child's mother will be his primary care giver such a decision or that or other surgical procedures should be a decision for the mother to make and I propose to make an Order accordingly.
I look now at general provisions for the father's interaction with the child. It is relevant that the Respondent father is a father who wishes to act as a father. He sees the importance of this child having a male role model, especially as J is a little boy who will be living in a household where there would not otherwise be a male role model. He as this child's father, sees that that is his responsibility. I am of the view that that is a persuasive argument. It is important for children of both sexes to have appropriate contact with fathers or father figures so that they can attain from them an understanding as to how, in our society, we expect adult males to behave. It is, of course, regrettable that there are a number of adult males who do not live up to this requirement.
The father in this case, however, is an adult male who does have firm views that he wishes to be seen as a loving and concerned father. The time that he wishes to spend with the child is based on a two week program with contact on certain days during one week and other days during the other week. The mother is of the view that there needs to be more stability and that on particular days this child should know when he is going to be with his father and should know when he is going to be with his mother.
I am persuaded that a regular relationship, which involves some frequency of contact but involves a specific understandable routine is easier for a child to undertake than one where the days change.
The father also seeks that in his program there should be, in the first week, all day contact on the Saturday; the second week, all day contact on the Sunday. Certainly, that would occur in the first program. The mother seeks alternate Sundays as a regular day and then goes on to look at alternate weekends during the day and alternate weekends including overnight contact after Term 2.
As I have indicated, I am more persuaded that there should be regular days. I am also of the view that the mother needs to have weekend time with a child and the mother needs to have weekends away; this becomes more and more important once children go to school or are involved in preschool or other things like that.
One of the big issues is overnight contact. The mother says it should start at the commencement of Term 2, the father says it should start much earlier than that; when the child attains the age of three years. If we were dealing with a child who had little contact with the father or a father who wished to have little contact with a child, there would be to my mind, justification for delaying overnight contact until the child was of school age. This does not appear to me, however, to be such a case. This is a case of a father who wants to be involved with his child, that his areas of weakness are inexperience rather than lack of will or lack of intention. As I indicated earlier, the way to deal with inexperience is to give experience.
A child who is, on the evidence before me, advanced for his age, otherwise in good health, and who has regular and frequent contact with his father, should in my view be well capable of having overnight contact with the father once he reaches the age of three. On the evidence before me and on my assessment of the parties, having heard their evidence, seen them in the witness box, I am satisfied that overnight contact should commence at the age of three; that it would be to the benefit of the child to do so and that the father will by then have gotten enough hours in his logbook, to use the vernacular, that he will be able to provide for this child's physical and emotional needs for overnight contact.
I am of the view that one overnight is probably sufficient for the age of three but certainly from the commencement of school term I see no reason why, if all goes well, that contact should not commence on a Friday evening and that at that stage there should be the Friday night and the Saturday night. As the child grows older, there are more things that he and the father can do together. The father will be more proficient at preparing meals, enforcing bedtimes, and taking the child to sporting activities or whatever. There is also the fact that there are public holidays from time to time and I am of the view that the odd extra night on the Sunday before a public holiday, if that occurs on a contact weekend, is something that the father would be well be able to cope with and the child, from the age of three, would be well able to cope with and it would be of benefit for him to do so.
It all boils down to the fact that the evidence that I have heard quite persuades me that it is of benefit for this child to have regular, frequent and some extended contact with a loving father. There are other days which, of course, go without saying; Father’s Day is important. The father's faith means that he does not celebrate Christmas Day or birthdays or particularly Easter, and the mother really wants those days to be available.
The father, however, takes a somewhat generous view of the child's needs here which, again, I regard in his favour. As far as birthdays are concerned, he is of the view and this I think is sensibly based, that the child would want to see the father on the child's own birthday and whilst the father is not one to celebrate his own birthdays, not that he is old enough to reach the stage where he dreads them as others of us do, the father takes a very reasonable attitude towards the child's wish of his own birthday and wants to be a part of is and wants to be involved in that with his child. And so he should.
It was put to me that the school holiday contact bear the provision, and all of the Orders, that the parties would have the facility to make such arrangements themselves. I am of the view that from the commencement of school, school holidays should be contemplated and seen as part of the Orders. I am also of the view that by that stage, the child would be well able to have periods of block contact, he should certainly be able to spend a week with his father once he has got school sorted out and has had other periods of overnight contact with his father. I am satisfied from the father's evidence that the father would arrange his working day so that he could take some time off.
Mother's Day should be spent with the mother. There are some specific activities that the mother needs to be involved with as a result of being a member of a group where there are parents who also suffer from HIV Aids. There is a regular program on the Australia Day long weekend and the evidence certainly points to the fact that this should be a time that the mother and child should have and that there can be make-up contact at some other time.
The mother might want to have holidays, take the child away from time to time, perhaps go up to see her father in Queensland. The father has taken a very benevolent and, to my mind, sensible attitude towards that. I am certainly of the view that that is something that the mother might want to do, which would mean taking the child away for a period of time. She could look at some make-up contact once they were back.
I do not consider that there is evidence to make an injunctive order requiring the mother not to leave the Sydney area for any purpose. I am of the view that the mother should give the father reasonable notice of her intention to take J out of the State of New South Wales for any purpose, even if it is only for a fortnight's holiday. In most cases, I am sure the father would consider that on its merits and it would just be a question of letting him know what the mother wanted to do and the father seeing the reasonableness of it. If the mother suddenly decides that she wants to up and live far away, that would give the father the opportunity to react to that and bring an appropriate Application before the Court. I am satisfied that that is fairly remote.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: C Soliman

Date: 29 October 2003