v and M - [2001] FMCAfam 316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

V & M

[2001] FMCA fam 316

CHILDREN – Best interests.

Applicant:

L P V

Respondent:

B J M

File No:

ZD2226 of 2001

Delivered on:

13 November 2001

Delivered at:

Darwin

Hearing Date:

8 November 2001

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Terry

Solicitors for the Applicant:

Janet Terry

Counsel for the Respondent:

Mr Barr

Solicitors for the Respondent:

NT Legal Aid Commission

ORDERS

That the child of the relationship A H M born 28 May 1999 (“the said child”) live with the mother.
That the father and the mother have joint responsibility for the long term care, welfare and development of the said child.
That the father and the mother have sole responsibility for making decisions about the day to day care, welfare and development of the said child when the said child is living with him or her respectively.
That the father have contact with the said child as follows:
(a)Every second weekend from 6.00pm Friday until 6.00 pm the following Sunday;
(b)By telephone as agreed between the parties;
(c)For 6 weeks in total each year whilst the father is on leave provided the father provide to the mother an itinerary providing reasonable details of travel plans;
(d)For 3 hours at a time to be agreed between the parties on Father’s Day and said child’s birthday; and
(e)At such other times as the parties may mutually agreed from time to time.
That all outstanding applications be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

ZD 2226 of 2001

L P V

Applicant

And

B J M

Respondent

REASONS FOR JUDGMENT

Introduction

This is a sad and difficult case. It concerns competing parenting applications in respect of one child, A H M, who was born on 28 May, 1999. A is thus a little over 2 years and 5 months old at the present time.
The parties to the proceedings are A's father, B J M and her mother,
L P V. I will refer to them as the father and mother respectively in these reasons for judgment. The reason it is a sad case is that to date A has had a somewhat unsettled upbringing. This has been in the main because both her father and her mother are currently members of the Australian Defence Forces and both have served overseas in the Australian Army since the time of A's birth. They have also had service commitments when they have been serving within Australia.
As a result, arrangements for her care have been somewhat disrupted and she has lived from time to time with each of her parents, and indeed, with other significant relatives. At the present time A is being primarily cared for by her father. Both parties are planning to move from Darwin to live in Brisbane around 16 or 17 November of this year. That is one bright spot in a difficult case. It means regardless of what orders I make, A will have the benefit of having both her parents living in the same city, and as a result should go a long way to ensuring that she is able to maintain a close and loving relationship with both of them.
However, at this time both the father and mother seek orders from the Court that A should live with him or her, and that the other parent should have regular contact. It is the resolution of this dispute that is before the Court today.

Proceedings

The mother is the applicant in these proceedings. She filed her application with the Court on 4 May 2001. There is some significance in this date to which I will return in due course.
In her application, the mother seeks the following orders:
a)that the child A H M born 28 May 1999 reside with the mother;
b)that the mother and the father each have sole responsibility for making decisions about the day to day care, welfare and development of the child when the child is living with them;
c)that the father have contact with the child
i)every second weekend from 6 pm Friday until 6 pm Sunday;
ii)by telephone as agreed between the parties;
iii)for two weeks whilst the father is on leave, with the father to provide to the mother 7 days written notice with itinerary providing reasonable details of travel plans;
iv)at such other and alternate times as the parties mutually agree;
d)that the mother, jointly with the father have responsibility for making decisions about the long term care, welfare and development.
In his response, filed on 5 June 2001, the father seeks the following orders:
a)that the child A H M, born 28 May 1999 reside with the father;
b)that the father have sole responsibility for the day to day care welfare and development of the said child;
c)that the mother have contact with the said child at such times and upon such terms as may be agreed between the parties.
The father has further defined his proposals for the mother's contact to A since the filing of his application. He proposes that if A lives with him that the mother should have contact to her every second weekend and for half of all school holidays as well as at other times during the week.
In his affidavit filed in support of his application, he seeks the following orders:
a)that the child A H M, born 28 May 1999 reside with the father;
b)that the father and the mother have joint responsibility for the long term care, welfare and development of the said child;
c)that the father have sole responsibility for the day to day care, welfare and development of the said child;
d)that during any period that the mother lives within 100 kilometres of the father, the mother have contact with said child as follows:
i)from 6 pm Friday until 6 pm Sunday on each alternate weekend:
ii)for one half of each school holiday period each year, including Christmas Day in each alternate year;
iii)on Mother's day each year;
iv)on the child's birthday each year;
v)by telephone at all reasonable times;
vi)at such other further or other times and upon such terms as may be agreed between the parties.
He also has proposals in respect of the event of the mother living more than 100 kilometres from the father, but as I have already indicated, both parties have indicated to me, and I accept that it is the case, that they will be both living in the Brisbane area close to each other. Having outlined what each party seeks from the Court, it is important at this stage that I outline the relevant factors which have brought the parties to this point.

Background

The father was born on 2 October 1975 and is currently 26 years of age. The mother was born on 8 June 1977 and is currently 24 years of age.
As I understand matters, the parties began to live together in June of 1998. They have never been married. The one child of their relationship, A H M, was born on 28 May 1999 in W, New South Wales.
It is common ground between the parties that they separated around September 2000.
During the relationship and to the present time, both parties have been members of the Royal Australian Army. The father is a corporal chef. The mother is a nurse medic. When the parties met, they were both stationed at the E Barracks in Brisbane. They were both subsequently transferred to W where A was born.
Following A's birth, the mother was on maternity leave until September of 1999 when she returned to work.
In January of 2000, the Army transferred both parties to Darwin. In Darwin it was necessary for both of them to go on bush exercises from time to time for periods of up to a week. After an early experiment with a child care centre, A was moved to a home care arrangement when both her parents were working.
Between March and August 2000, the father was overseas on operational duty in B.
The mother was also required to take part in a major five-week exercise during this time and arranged for her sister, M, to care for A.
The father's mother also cared for A for about 7 weeks commencing

17 July 2000 when the mother was attending a course in A. This care took place in Brisbane.
When the parties separated on 4 September 2000, the father moved into the single men’s quarters at the R Army Barracks and A remained in the care of the mother.
In November of 2000, the mother learned that she was to be deployed by the Army in East Timor for a period of six months. It was necessary for her to undergo three months training before her deployment. She discussed arrangements with the father for the care of A while she was away. It seems that they considered reconciliation.
In December 2000, the father took A on holiday with him to Brisbane.
In January of 2001, both parties and A were in Darwin. They resumed living together under the one roof but did not recommence their relationship. At around this time the father commenced his present relationship with Ms M M. The mother proceeded with her plans to go to East Timor. Her training was due to commence in February 2001.
At this time the mother proposed that her aunt in Melbourne should care for A while she was away in Timor. This proposal did not meet with the approval of the father. The Army arranged a mediation between the parties. This mediation involved the parties’ superior officers and a minister of religion. This took place on 1 February 2001. As a result of this mediation, the parties agreed that A would live with the father whilst the mother was in East Timor on active service. I will return to the significance of this agreement at a later stage in these reasons for judgments.
Thereafter, from about 26 February 2001, A lived with her father in married quarters at the R Army Barracks. Ms M moved in with the father and A in May of 2001.
The mother was on training for deployment in East Timor from the end of February. She left Darwin for East Timor on 20 April 2001. She returned to Darwin after her tour of duty on 20 October 2001. During the six months she was away, she returned to Darwin on two occasions for recreational leave. These periods were from 3 – 10 August and from
17 – 18 August. During these times the mother had contact with A.
After the mother's return to Darwin, A has continued to live primarily with the father, however the mother has had contact with A every second fortnight from Thursday night until Sunday night and overnight every Tuesday. It is to the parties' great credit that they have been able to agree to this arrangement.
As I have indicated already, both parties have been posted to Brisbane by the Army, both have arranged to leave Darwin at the end of this week around 16 or 17 November. For that reason, as I understand things, there has been some obvious haste to deal with the matter.
Each party at the hearing was represented by counsel. Each filed affidavit material on their behalf and was cross-examined by counsel for the other party. In addition to her own evidence, the mother called evidence from two friends, U J E and T J M. In addition to himself, the father called evidence from his present partner, Ms M M.
The mother has a number of criticisms in respect of the father's ability to care for A. In essence she says that he has heavy work commitments and in particular, that he is likely to work long shifts from time to time and as a result he is less well placed to care for A than she is. She also believes that he has gambling and drinking problems.
The father's case is basically that he is presently caring for A and is well placed to continue that arrangement. Both parties are proposing a move for the child but he says, on his part, that his proposal is less likely to be disruptive for A. It is his position and central to his case that he is more likely to be the parent who will foster a positive relationship between A and the other of her parents if he is granted her residence. He alleges that the mother has some antipathy towards him and as a result is likely to have a negative view of his having continued contact with A. This will be to her detriment.
Quite clearly, given the history to date, arrangements for the care of A have been unstable and somewhat unsettled. This has been as a result of both the breakdown of the relationship between the parties and the nature of their employment. Both parties freely concede that A has spent lengthy periods of time in the care of the home based carer whilst they have been at work.
It is against this background that I must decide the competing applications. It is also important that the parties understand that I don't determine this case in a vacuum. I have to apply principles of law which are set down in the Family Law Act. In particular the provisions that are set out in Part VII of the Family Law Act.
That part of the Act includes a section, section 60B, which deals with the objects of the Act and the children's part of the Act, and that reads as follows:
The object of this part 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.
Underlying that object are some fundamental principles that I have to apply in making decisions and making orders in this Court. The principles underlying these objects are that:
a)Except when it is or would be contrary to the children's best interests, children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never been married or have never lived together;
b) children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
In determining this matter I must have regard to another section of the Act, section 65E which tells me that the best interests of the child concerned in the application is the paramount or most important consideration. I also have to apply in working out what is in A's best interests a number of principles in the Family Law Act set out in section 68F(2). I have no doubt that your respective legal advisers have told you what they are but they are as follows:
a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
b)The nature of the relationship of the child with each of the child’s parents and with other persons;
c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person, with whom he or she has been living;
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 of any other person, to provide for the needs of the child, including emotional and intellectual needs;
f)The child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
g)The need to protect the child from physical or psychological harm caused, or that may be caused, by:
i)Being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
ii)Being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
h)The attitude to the child, and to responsibilities of parenthood, demonstrated by each of the child’s parents;
i)Any family violence involving the child or a member of the child’s family;
j)Any family violence order that applies to the child or a member of the child’s family;
k)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;
l)Any other fact or circumstance that the court thinks is relevant.
Bearing those matters in mind, I now turn to consider the evidence of the parties and their respective plans for the future and in particular the future as they see it for A.
I found the mother to be a truthful witness. On balance I accept her evidence that she was A's primary carer from the time of A's birth until the latter part of February this year when she commenced her training for her deployment in East Timor.
The evidence was that during the time the parties were living in W, during the early months of A's life, that the father worked long hours at two different jobs. By necessary implication during this time the mother was mainly responsible for the care of A, albeit with the assistance of day carers when she had to return to work.
Similarly, I accept her evidence that for the bulk of 2000 she took care of A, albeit with a considerable amount of evidence from Ms Chian Bretzke, A's day carer in Darwin. I find this remained the situation until February of 2001.
In respect of the early part of 2000 there is corroboration for the mother's evidence that she was A's primary carer in the evidence of U E who lived with the mother and A from mid-January 2001 until 26 February 2001. I accept Ms E’s evidence that in this period the mother took the majority of responsibility for the care and parenting of A.
This is also the period that corresponds to the commencement of the father's relationship with Ms M. Thus on balance I find that for the first 20 or so months of A's life the mother was marginally more involved with A's care than the father, albeit that for not inconsiderable period of time others were also significantly involved.
I found the mother's account of how she came to be agreed to be posted overseas to East Timor to be incomplete and somewhat unsatisfactory. Her evidence was that she could have requested the Army not to send her to East Timor because of her commitments to A, and that indeed the Army would have been comfortable with this decision on her part.
However, she said that once an agreement had been made with the father in mediation regarding the care of A, the legal advice she was given was to the effect that it was too late for her to change her mind. I have some difficulty accepting this proposition. It seems to me to be unusual in all the circumstances of the case up until that time that the mother would continue with her plans to go to East Timor and that the Army would insist on such a course of action on her part. However, putting that to one side, two things do appear clear to me from the evidence. Firstly, the mother's preferred option for the care of A was not the father, for whatever reason, and secondly, the placement of A with the father was from the mother's point of view intended to be a temporary one only and was intended to last for the mother's part only during the duration of her overseas deployment.
This to my mind is the only logical interpretation of the mediation agreement that is annexed to the mother's affidavit, the conclusion of which reads as follows:
The outcome of the mediation sessions was that Private V and Corporal M reached a mutual agreement. The agreement is that Corporal M will provide care for A for the period that Private V is deployed on X Timor Dusk and Op Tanagia, Corporal M is required to obtain a married quarter prior to Private V's deployment on Op Tanagia.

It is also clear that the mother commenced proceedings in this Court as soon as she became aware that the father no longer regarded the placement of A with him as being a temporary one. She commenced her proceedings at May of 2001. It is also clear to me that up until the time the mother was deployed to East Timor the father had no substantial criticisms of the mother's ability to care for A. During the time that A has lived with him, both the father and Ms M have worked during that time. The father's evidence was that his hours of work varied; he works what is known as a split-shift.
On some occasions he works a normal shift from 7.00 am until 3.30 pm; on other occasions he works two long shifts from 5.30 am until 7.30 pm, the shifts being in a row and then has 2 days off. He said in his evidence that his working arrangements during the time he has the care of A have been divided approximately equally between these two arrangements. He also said the Army has also excused him from a number of exercises out bush because of his responsibilities for A. Ms M is the manager of a cafe in Darwin. She works from 8 am to 4 or 5 pm during the week. She has worked also at the Larrakeyah Barracks during most evenings during the week.
I find that both the father and Ms M have worked for long hours for protracted periods during the time A has been in their care. As a result, by necessity A has spent long periods of time in the care of her day-carer, Ms Bretzke, periods of up to 12 hours per day. Ms M has assisted in taking A to Ms Bretszke's home when the father has had an early shift start in the morning, and collected her in the afternoon when she has been available to do so.
The mother begrudgingly accepts that a good relationship exists between A and her father. In answer to a question in this regard from the father's counsel, she answered somewhat reluctantly, "I guess so." It is her position however, that the father has not done a good job in respect of his care of A while she was in East Timor. It is also my impression that the mother has a somewhat negative attitude to Ms M. She indicated in her evidence her belief that A was not comfortable with Ms M and that she personally had no knowledge of the role Ms M played in A's life at the present time.
From her evidence, I find that the mother has an extremely negative view of the father at the present time, and in particular in respect of what contact he should have with A in the event that she is successful in her application to be the parent with principal responsibility for providing the residence for A. She indicated to me that her personal preference would be that there would be no future contact between A and her father. However, she conceded that she was not in a position to deny contact to the father and would not do so.
However, her obvious antipathy to the father did cause me some concern. This was a matter that was emphasised by counsel for the father, Mr Barr, in his submission to me. I do note however, that in the past she has permitted the father to take A to Brisbane; this was after separation, and she has also allowed members of his family to care for A in the past. It is my view that the sense of antipathy the mother feels towards the father has to a certain extent coloured her evidence in respect of him. I find that she has exaggerated her concerns regarding his gambling and his drinking and his verbally abusive contact towards her.
However, there are aspects of the evidence called on behalf of the mother which do cause me concern in respect of the father's capacity to parent a child of two and a half years of age and which indicate that at least on some occasions, he may have put his own needs and wishes before those of A. Firstly, there is the evidence of Ms M which I accept. She indicated that on two occasions the father was late in collecting A from child-care. On 17 March 2001, he was some four hours late in collecting her from a children's birthday party which concluded at 5.30 pm. He arrived at 9.20 pm. On 21 June 2001, he was approximately three hours late in collecting A because of his attendance at an Army golf day. I find on balance that on both occasions the father was somewhat affected by alcohol when he arrived to collect A.
Secondly, the haircut which A received whilst in the father's care to my mind shows to a small degree some lack of sensitivity to the child's need and certainly shows an insensitivity to the feelings of the mother. His evidence was that it was much easier for him to care for A’s hair if it was shaved close to her scalp, although I do accept his evidence that he was advised by the hairdresser concerned that the haircut was an appropriate one for A.
It is very much the mother's case that the long hours the father has been required to work have impacted severely and will continue to impact on the father's ability to care for A. Both the mother and Ms M gave evidence regarding A's behaviour during the mother's contact visit in August when she returned to Darwin briefly from East Timor. Both described A as being unsettled and clingy during this period in interaction with her mother. In all the circumstances of the matter as I have found them, this is hardly surprising.
In his evidence, the father conceded very fairly on his part, that A is very attached to her mother and misses her when she is not there. He also gave evidence of his reliance on Ms M for assistance in his care of A. It is also apparent to me that he has placed enormous reliance on Ms Bretzke during the eight months that A has been in his care.
It is of some concern to me that the relationship between the father and Ms M is in its early stages. As a result, there must be some uncertainty about whether it will persist, although of course it is to be hoped that it will. I was impressed by the father's attitude of openness towards the involvement of the mother in respect of his future proposals for parenting arrangements for A. This was in contrast to the impression I gained of the mother.
As I indicated at the outset, one of the very few bright spots in this case is that both parties wish to relocate to Brisbane where they will be living fairly close together. If granted residence of A, the father envisages arrangements whereby the mother can have frequent and flexible contact with A.
At this point, it is appropriate that I turn to consider in more detail the future plans of both parties as they pertain to A. As I say, both the father and mother have obtained transfers to Brisbane from the Army. However, the mother has indicated that she plans to leave the Army as soon as she can; the earliest that she can do this is in six months' time, thereafter she wishes to study nutrition or counselling.
She gave evidence that she is currently financially secure because of her service in East Timor, and would not need to work full-time for the time following her discharge from the Army. She hopes to commence studying in August of next year. The main reason she advances for leaving the Army is so that she will have more time to devote to the care of A, ultimately she wants to get a 9 to 5 job that does not require her to be deployed overseas or take part in exercises. She is currently single.
The father is a career soldier. He proposes to remain in the Army for the foreseeable future. At this stage his posting to Brisbane is for a period of 3 years. He has family support in Brisbane and most likely he will be permitted to stay in Brisbane after his posting of 3 years is up. He hopes to be able to work more regular hours in the Warrant Officers' Mess and eventually cook for functions held in the Commander's Mess.
He hopes to be able to work primarily day shifts, and to be excused from going on exercises. The very nature of his work, however, does entail at least the possibility of overseas placement and attendances on courses held interstate. He wishes to have more fixed and stable working hours so he has more time to spend with A.
Ms M will go to Brisbane with him and they have obtained married quarters together. Ms M hopes to be able to get work in sales in Brisbane rather than in the hospitality industry which of course requires more shift-type hours and evening hours. She is hopeful that she won't have to work in the evenings once she has relocated to Brisbane.
This is a difficult and finely balanced case. I accept that both parties have had extensive involvement with A. However, in the past for all the reasons I have outlined, arrangements for A's care have proceeded on a fractured ad hoc basis. There has been much crisis management and little stability in her care. In my view this has flowed not only from the parties' employment with the Army but also from the problematic nature of their relationship with each other.
It seems to me that at least on some occasions, both parties have put their own needs before those of A. That is not to say that I do not believe that both parties are not deeply devoted to their care and I am not absolutely satisfied that both wish the absolute best for her. I have absolutely no doubt about that at all.
However, what A requires above all at this stage of her development is as far as is possible a stable and reliable arrangement for her care. After a great deal of thought, it seems to me that the relevant section 68F factors are on balance marginally more in favour of the mother than the father. Given A's age, her wishes are not a material consideration in this matter.
I find that both parents have adequate parenting skills. However, I believe for the reasons I have already advanced that the mother's skills are marginally more advanced than those of the father's. I have found that the mother has had more involvement with the care of A during the totality of her life than the father has had. I do find however that A has a close relationship with each of her parents.
It is implicit in these reasons for judgment that I have found to date A's life has been one beset by changes of one kind or another. Both parties envisage a change very shortly in the geographical location of A's place of residence. A is still of tender years, and in my view would be able to adapt easily to the change of living in Darwin to that of living in Brisbane. In addition, given that she has spent a larger proportion of her life in the care of her mother rather than her father, I believe that she will be able to adequately cope with the change of residence from that of her father to that of her mother.
It could not be said in my view that by dint of the period of 8 or so months during which A has lived with her father that it would be unsafe to consider moving her again. Fortunately this is not a case whereby there arise practical difficulties in one parent having contact with A. The parties each propose living in proximity in Brisbane. Neither has plans to move from Brisbane in the near future.
In my view what this case really comes down to is my assessment of the capacity of each of the parties to provide for A's needs including her emotional and intellectual needs, and my assessment of their respective capabilities as parents. Both parties gave examples of the activities in which they take part with A. Both cook, go shopping, play with A and bake cakes for her. Both, when A is with them, take part in numerous activities with her. Both impress me as affectionate, involved parents.
Ms M has also been involved in A's life and plays with her and involves her in her activities and those of the household. However, it seems to me that the mother's proposal for the future in the sense that she is leaving the Army and obtaining alternative employment, are more focused on A's ongoing needs than the proposals of the father, albeit he does propose – as far as he possibly can – changing his hours of work and his requirements to go on exercises and courses. It also seems to me, for the reasons that I have provided, the mother has exhibited to date a better attitude towards the future parenting of A than the father has.
I am concerned about what I have found is a certain level of antipathy that the mother has to the father having contact with A. I hope that this will settle down in time. As I have already pointed out she has been in the past content, at a stage after the parties had separated, to allow A to go with him to Brisbane for a holiday. I therefore take some hope that after the trauma that it inevitably occasions to both parties by proceedings such as these has settled down, the contact arrangements will proceed smoothly. Both parties have proposed relatively lengthy contact periods with the other party given A's age. Given the circumstances surrounding her care to date this is understandable.
From all these reasons and subject to further submissions from counsel, the orders of the Court are as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: