v and N
[2002] FMCAfam 60
•6 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| V & N | [2002] FMCAfam 60 |
| CHILDREN – Best interests. |
| Applicant: | C V |
| Respondent: | P D N |
| File No: | ZD2052 of 2001 |
| Delivered on: | 6 March 2002 |
| Delivered at: | Alice Springs |
| Hearing Date: | 27 February 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms J Terry |
| Solicitors for the Applicant: | Janet Terry |
| Counsel for the Respondent: | Mr B Cassells |
| Solicitors for the Respondent: | Dylan Walters |
ORDERS
That the child S E McI (“S”) born 18th of August 1992 reside with the mother.
That the child W D N (“W”) born 12th of July 1997 reside with the father.
That the father have contact with S at all reasonable times as agreed between the parties and failing agreement:
(i)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(ii)Half of all school holidays;
(iii)Half of Christmas Day;
(iv)By telephone.
That the mother have contact with W at all reasonable times as agreed between the parties and failing agreement:
(i)Each alternate weekend from 5.00pm Friday until 8.00am Monday or if that Monday is a public holiday until 8.00am Tuesday;
(ii)On the same weekend as referred to in subclause 3(i) from 5.00pm Sunday until 8.00am Monday;
(iii)Half of all school holidays;
(iv)Half of Christmas Day;
(v)By telephone.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD2052 of 2001
| C V |
Applicant
And
| P D N |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for two children
S E McI (“S”) born 18 August, 1992 and W D N (“W”) born 12 July, 1997.
The parties to these proceedings are C V (“the mother”) who is the mother of both S and W, and P D N (“the father”) who is the father of W but who is not biologically related to S, although there is no doubt that he and S enjoy a close and loving relationship and to all intents and purposes S regards Mr N as her father.
The parties are not and have never been married. S’s natural father is D McI. He is not a party to these proceedings. He has had minimal involvement with S.
It is common ground between the parties that they began to live together in the middle of 1995 and separated on the 17th of March 2000. S lived with the parties during this time and came to regard Mr N as her dad. Obviously W was also born during this period.
Since the separation of the parties, a situation has come about whereby W lives with his father at a rural property at B C some kilometres south of Darwin and S lives with her mother in K in the northern suburbs of Darwin.
The parties have fundamentally different views as to the appropriateness of this arrangement and its suitability for the children concerned. The mother wishes the children to live together with her in Darwin. The father wishes the current situation to remain as it is with W living with him at B C and S living with her mother in K. It is the resolution of this issue that is before the Court for determination.
Applications
The mother is the applicant in these proceedings. By way of her form 3 application filed the 30th of January 2001 she seeks the following orders:
1)That the children S E McI born 18 August, 1992 and W D N born 12 July, 1997 reside with the mother.
2)That each party have sole responsibility for making decisions about the day to day care, welfare and development of the children when the children are with them.
3)That the father have contact with the children at all such reasonable times as agreed between the parties and failing agreement:
i)Each alternate weekend from 5.00pm Friday to 8.00am on Monday;
ii)With W only on Tuesday and Thursday nights from 5.00pm until 8.00am the following day;
iii)Half of all school holidays upon the giving of 30 days notice to the mother of his intention to have contact;
iv)Half Christmas Day each and every year;
v)By telephone twice a week.
4)That the parties have joint responsibility for making decisions about the long term care, welfare and development of the children.
The father is the respondent to the proceedings. By way of his response filed on the 2nd of March 2001 he seeks the following orders:
1)That the child S E McI (“S”) born 18 August 1992 reside with the mother.
2)That the child W D N (“W”) born 12 July 1997 reside with the father.
3)That the respondent have contact with S at all reasonable times as agreed between the parties and failing agreement:
i)Each alternate weekend from 5.00pm Friday to 5.00pm Sunday;
ii)Half of all school holidays;
iii)Half of Christmas Day;
iv)By telephone.
4)That the mother have contact with W at all reasonable times as agreed between the parties and failing agreement:
i)Each alternate weekend from 5.00pm Friday to 8.00am Monday;
ii)On the same weekend as referred to in sub-clause 3i from 5.00pm Sunday to 8.00am Monday;
iii)Half of all school holidays;
iv)Half of Christmas Day;
v)By telephone.
On the 5th of April 2001 Chief Federal Magistrate Bryant ordered that a family report be prepared. This report was prepared by Ms H P and was released to the parties on the 27th of August 2001.
Background
The mother was born on the 25th of March 1973 and is currently 28 years of age. She was born in Adelaide but has lived in Darwin since she was 11. Her mother and her brother live close by to her in Darwin and she enjoys a close relationship with each of them.
At the present time the mother is engaged in full time employment as a Technical Officer with the Department of M and E. She has had regular employment since she left school at 16 years of age.
When she was still comparatively young she commenced a relationship with D McI and was 19 when S was born. The mother married Mr McI approximately two months after S was born. However she and Mr McI separated when S was aged approximately eighteen months.
The father was born on the 19th of March 1974 and is currently 27 years of age. He was born in Darwin and for the entirety of his life has lived in and around B C. This is a rural community some 40 kilometres south of Darwin.
The father left school at the end of 1990 after completing Year 10. Thereafter he obtained an apprenticeship in light steel fabrication with a firm known as A S M. The father successfully completed his apprenticeship with A S M and is still employed by that firm. He has now been with them for some 11 years.
The parties met in mid 1994 a short time after the mother had separated from Mr McI. In mid 1995 the mother and S came to live with the father at his home at B C.
The property at B C consists of an 8 hectare block, which is owned by the father’s father C N. Mr N Senior operates a tropical fruit nursery and fertiliser manufacturing business on the property. There are two houses on the property some 60 metres apart. Mr N Senior and his wife C N live in one. The parties and S and following his birth W lived in the other. The father has lived on the property for the vast majority of his life and continues to do so. He currently lives there with W.
It is common ground between the parties that S refers to the father as “dad”. She is now known as S N at the school at which she is currently enrolled.
W was born on the 12th of July 1997 at the Darwin Private Hospital. There is no evidence to indicate other than that he is a healthy boy who has developed normally since his birth.
The parties separated on the 17th of March 2000 when the mother left the B C property, which is situated at 110 H Road, B C. Initially both S and W went with her. However after about a fortnight the father suggested to the mother that S should live with her and that W should live with him. On the 14th of May 2000, through the agency of the father’s brother-in-law, who is a solicitor, the parties both signed a document entitled “Deed of Separation Agreement”. The agreement is expressed to be “binding and to resolve to the full extent possible all financial, proprietary and child matters.”. Under the heading “Children” the parties purported to agree as follows:
“The following arrangements apply in relation to the children until 25 July 2000 or until a further agreement is made effective after that date between the parties:
W
W is to reside with P at 110 H Road and spend the week days during work hours at the B C Childcare. Once every fortnight W is to spend from Friday afternoon to Monday morning with C. C is to collect him from childcare or from P on the afternoon of the Friday and return him to childcare or to P on the following Monday morning.
On any Sunday when P returns S to C, W is to spend that Sunday evening with C and C will return him to childcare or to P on the following Monday morning.
P is to pay W’s childcare fees.
S
S is to reside with C. Once every fortnight S is to spend the weekend with Phil, being the same weekend that he has W, Phil is to collect S from school on Friday afternoon or from C and return her to C in the evening of the following Sunday by 5.00pm.
Each party is to pay for the children while with them and neither party is to seek child maintenance or child support from the other.”
This agreement has not been sanctioned by any court and does not have the status of a court order. Nonetheless arrangements for the care of S and W have followed this agreement. Neither party has sought child maintenance from the other party in respect of the child currently in his or her care.
At the present time W is attending pre-school in B C. S is attending
S M’s Primary School in Darwin. W will be due to start primary school shortly. His mother wishes him to attend S M’s with S and his father wishes him to attend the Primary School in B C which is adjacent to the pre-school he presently attends.
When the parties separated W was two years and eight months old and S was seven years and seven months old. There is no doubt that since the parties separated they have endeavoured to ensure that they have both had regular contact to both children and the children have had regular contact with each other. The arrangement by which this has occurred is as follows:
Once per fortnight the mother collects W from pre-school on Friday afternoon so that he can spend that weekend at K with his mother and S. The mother then returns him to pre-school on the following Monday morning. However on occasions the mother also spends Monday with W in addition to the weekend. This occurs when she takes a flex day or that Monday is a public holiday.
In the other weekend the father collects S at 3.10pm on Friday afternoon so that she can spend Friday evening, Saturday and until 5.00pm on Sunday with W and the father at the property at B C. At 5.00pm on that Sunday the father returns S to the mother. However W also accompanies her and spends overnight with his mother and S at K. W is then returned to pre-school the following Monday morning. As a result, according to this arrangement W spends the whole of each alternate weekend and Sunday night of the other weekend with his mother and in turn S spends one alternate weekend with the father and W at B C.
That father is content for this arrangement to continue indefinitely. The mother wishes it to be changed. She proposes that both children should live in the main with her. However, by way of contact she proposes that both S and W should spend one weekend a fortnight with the father at B C and in addition W only should spend overnight on each Tuesday and Thursday from 5.00pm until 8.00am the following day with the father. Finally she proposes the father should spend half of each school holiday with the children if he provides her with appropriate notice.
Since the parties have separated the mother has re-partnered. She has been living with her present partner T D for approximately sixteen months. She, Mr D and S are living in a three bedroom house situated at 12 V Court in K. The house has a garden and is close to a park. The father has remained single. He continues to live with W at the property at B C.
The issues
·The mother believes that S and W do not spend sufficient time together at present. She believes that it is in the children’s best interests that they grow up together as brother and sister and if possible, attend the same school. She places great store in the siblings having the same experiences as they grow older together and the same store of shared memories. It is for that reason she seeks the current arrangements to be changed.
·On the other hand the father puts great store on W remaining in an environment and in the routine with which he is familiar. He does not wish W to be removed from the house and surroundings in which he has lived all his life and where he has ready access to his paternal grandparents. In addition the father sees great benefits to W of him continuing to live in the wide open spaces of a rural environment.
The evidence
The mother relied on the following affidavits filed on her behalf:
i)Two affidavits of herself filed on the 15th of October 2001 and the 16th of November 2001;
ii)An affidavit of her mother E V filed on the 15th of October 2001;
iii)An affidavit of her defacto partner T D filed on the 6th of November 2001.
Of these witnesses only the mother was cross-examined by counsel for the father, Mr Cassells.
The father relied on the following affidavits:
i)An affidavit of himself filed on the 29th of October 2001;
ii)An affidavit of his father C N filed on the 29th of October 2001;
iii)An affidavit of his stepmother C N filed on the 29th of October 2001;
iv)An affidavit of his employer H M filed on the 29th of October 2001;
v)An affidavit of his sister J N-W filed on the 29th of October 2001;
vi)An affidavit of L McK, a psychologist filed the 5th of December 2001.
Of these witnesses the father, Mr N Senior, Mrs N and Ms McK where cross-examined by counsel for the mother, Ms Terry.
In addition the Court had the benefit of a family report which was prepared by H P. Ms P was required to attend at Court for cross-examination on the hearing of the matter on the 27th of February 2002 by counsel for both parties.
Both parties gave their evidence in a straight forward manner. They are however very different people. The mother was deeply affected by the process of having to come to Court and give evidence about her relationship with the children. It appeared to me that she was a sensitive person and on several occasions she was moved to tears during the proceedings. She did not seem to me to be a particularly assertive person. As a result, I formed the view that her application was not motivated by any ulterior motive on her part. I accept her counsel’s assessment of her that she is a sensitive and sociable person who is devoted to attaining what she sees are the best interests of S and W. It seemed to me that she is a family orientated person and although neither her current partner Mr D nor her mother Mrs V were cross-examined in the proceedings, I have no reason to doubt that they are not similarly so orientated.
The father seemed to be a laconic and somewhat dogmatic person. However he is certainly more assertive than the mother and as a result in my view becomes inflexible when proposals put to him do not accord with his wishes. He will not countenance any change to arrangements in respect of the children if it does not suit him. In this regard he would not permit the mother to take W and S on an interstate holiday over the Christmas period of last year. In his evidence he declined the request because “I wanted to see my boy and S”. I think that it is instructive that the father refers to W as “my boy”. In many ways, I think that the father is very possessive of W and on occasion has put his own needs before those of W. However having said that, I have no reason to believe, having seen him in the witness box, during which his motivations and plans for both W and S were subjected to prolonged and skilful examination by counsel, to doubt that he loves both children very much and has each of their best interests to the forefront of his heart. Similarly I was impressed with Mr N Senior. It seemed to me that he was deeply engaged in his grandson’s life and involved him appropriately in work at the nursery and in other age appropriate activities. W is fortunate to have him as a grandfather.
In her evidence the mother concedes that the father’s home at B C is an attractive and appropriate place for a child to grow up. There is no doubt that it is also the environment with which W is most familiar and provides the life style to which his father is strongly attached and to which he aspires for W.
I do not accept the father’s tacit assertion that K is not a suitable place for W to grow up. In my view neither K nor B C is a better or worse place for W to grow up. The locations each have their positives and negatives. The choice of addresses in each case says as much about the parent concerned as it does about the place. The mother prefers a suburban location close to facilities, her work and friends. The father prefers the rural location he has always known.
I found both the mother and the father to be essentially truthful witnesses, although I do have some reservations about the father’s evidence in regards to his use of marijuana. However, in my view, the most important aspect of each of their evidence is that they both refrained from wholesale criticism of the other as a parent. This is to the great credit of each of them. Both acknowledged that the other was a good parent and both recognised that each had played a major role in both S and W’s lives to date and should continue to do so.
Mr N acknowledged that Ms V had been a good mother to W and that W remained close to her. Ms V acknowledged that a close and loving relationship existed between W and Mr N. She also recognised that S had come to accept Mr N as her father figure, although she realised that Mr N was not her biological father. Ms V recognised that notwithstanding the failure of her relationship with Mr N he had maintained his relationship with S and that she benefited greatly from this.
In my view the evidence indicates clearly that the mother was not happy with the arrangements that came into place in respect of S and W in March of 2000. I accept that she felt guilty about ending her relationship with the father and as a result assented to the agreement of the 14th of May 2000 against her better judgment, and that since that time she has tried to negotiate a change to it with the father. However she has met with a stone wall refusal in this regard from him. Notwithstanding her attempts to change the arrangement it has remained in place for a period in excess of twenty two months. Given W’s age at present, this is a most significant issue in the case, especially when the expert psychological evidence is considered.
At the core of this dispute are the different values and priorities in respect of parenting of each of the parties. These values have been engendered in each of them as a result of their own experiences whilst growing up. The mother is very close to her own brother and as a result believes firmly in the importance of brothers and sisters growing up together. She says that she cannot conceive what her life would have been like if she had grown up without her brother. The father has always lived a rural life in B C. He aspires to join his father in running the fertiliser business. As a result of his experiences as a child he values space for children to roam and play and the stability of family home and continuity of routine. If growing up at B C has made him what he is, it should be good enough for W. Accordingly, he has been resistant to any proposal for change put forward by the mother.
The mother wishes W to attend S M’s Primary School. This is a Catholic school in the centre of Darwin. The mother deposes that she herself is a Catholic and wishes both her children to attend a Catholic school. As already indicated, S is already attending S M’s. The mother firmly believes that it is in the best interests of the children to attend the same school as their sibling. She also believes that brothers and sisters should enjoy the same experiences, engage in the same activities and so in time create a common store of memories. This is her concept of the central theme of family life. It is her case that unless S and W live together they will not have this sense of being part of a family. She unfavourably compares S’s childhood to the one she experienced growing up with her brother. This is not the father’s view. He is vehemently opposed to W attending St Mary’s and wishes him to attend B C Primary School. His reason for this is that he “does not like how they push religion on the kids”. I suspect that he is resistant to the mother’s proposal in this regard more because it has the potential to draw W out of his orbit at B C than his views about religious education.
The mother is critical of what she sees as the rigid attachment of the father to his lifestyle at B C and his unwillingness to move beyond the cycle of his friends and experiences there. She accuses him essentially of being unhealthily introspective. It is in this context that she raises concerns about the father’s use of marijuana.
The father acknowledges that in the past he has been a user of marijuana. However he asserts that the mother has exaggerated his use. He deposed that he stopped smoking marijuana approximately two or three months after the mother and he separated when it became necessary for him to care for W. In his words he could no longer afford “to be zombied out anymore”. He did however acknowledge that from time to time he grew the occasional plant at the property at B C. He also indicated that the friends with whom he had previously smoked marijuana, continued to visit him at his home. In those circumstances, I am somewhat reluctant to believe his claim that he has now totally desisted with his marijuana use. However there is no evidence before me to indicate that his use of marijuana has impacted negatively on W or that he has ever smoked marijuana in front of W and so held himself out to his son as an inappropriate role model. In itself, the mother’s concerns about the father’s marijuana use are not sufficient, in my view, to justify a change of residence for W.
A more problematic aspect of this case is the nature of the relationship between W and his mother as it has unfolded over the entirety of W’s life to date and the changes that have been necessarily wrought to that relationship as a result of the parties’ separation and the decision that they made that the care of W on the one hand and S on the other, would be divided between the father and mother.
There seems little doubt that from the time of his birth the mother was W’s primary carer. She breast fed him and it appears to me that from his earliest days she was the one who attended to most of his needs. The father does not seriously contend otherwise. Further the father acknowledges that W was very close to his mother and missed her when she left him at the family home. He indicated that W was distressed for some months following his separation from his mother and cried frequently at home and at creche. The father did not tell the mother of this distress and indicated that he did not consider returning W to her because of it.
As I have already indicated, it is my view, that at times the father has put his own needs before those of W. I regard his response to W’s obvious distress at being parted from his mother as being a prime example of this. However, it is clear that W no longer misses his mother in the same sense. He has long since acclimatised to what must have been a very radical change in his circumstances at the time. It is in these circumstances that the evidence of Ms McK and of Ms P assumes major importance.
The father acknowledges that W enjoys the contact he has with his mother and speaks to him with relish of his activities with his mother and Mr D. However it is clear to me that the nature of his relationship with his mother has significantly altered since the time the parties separated.
The father relied on the evidence of Ms L McK, who is a clinical psychologist. At the request of the father’s solicitors she prepared a report in respect of this matter. She did not observe any interactions between the parties and either S or W or indeed conduct any interviews with the parties. Her role was confined to reading the various affidavits filed in the matter and then commenting on the likely psychological effects on W as a result of the change of circumstances of his care.
On the basis of the information provided to her, Ms McK concluded that W would have been primarily attached to his mother during his early infancy. This is a conclusion that accords with my findings in the matter. Ms McK further opined that as a result of the change in care arrangements for W that occurred when he was two years and eight months old that it was likely that W would have suffered a degree of anxiety and grief at being separated from his mother. Again, this is an opinion that accords with the father’s evidence of W’s reaction on being separated from his mother when the parties initially separated and he remained in the care of his father. Ms McK then conjectured, on the basis of the material that had been provided to her that W would have most likely formed an attachment to his father in the absence of his mother once what she categorised as his “grief response” had subsided.
After having considered the material in the case from a purely objective psychological point of view, Ms McK recommended against a change of residence for W at this stage. She was concerned that a change of residence, which would necessarily involve another attachment disruption, at this stage of W’s development might recreate the mistrust and anxiety he had experienced when he had left the care of his mother in March of 2000. Ms McK did not think that it would be in W’s best interests to go through a similar experience again and she was concerned that it might have the potential to recreate in W a sense of the mistrust that he may have experienced in respect of the continuity of his carer which had first arisen in March of 2000.
Ms McK conceded that such a transition would be more easily managed if it was made to a familiar figure such as the mother, who was sensitive to W’s needs and aware and responsive to the likely grief reaction he would suffer on the transition. Ms McK also conceded that W had now acquired some verbal skills that would be of assistance to him in understanding and assimilating the reasons for the change. However, she still believed that such a change was not likely to be in W’s best interest at this stage of his development. In her view, given W’s age, he was still at an egocentric stage in his development and accordingly, in spite of all the best intentions of those concerned and in particular in spite of the explanations and reassurances that would be provided to him, W was still likely to assume “blame” for the change and as a result there was potential for some psychological harm to be accorded to him.
Ms McK agreed that generally speaking it was important for siblings to reside together. However the greatest benefit to siblings of remaining together derived from the continuity of their relationship. In the case of W and S she pointed out that it was clear that the children had lived separately and apart since March of 2000. In her view the children had effectively grown up since then as only children. As a result it could not be said that there was any high degree of continuity in their relationship. Accordingly, she was of the view that the potential benefits of reuniting the children where outweighed by the likely disruption to them of them no longer being effectively only children. If they were reunited at this time they would have to become used to competing with one another for parental attention. In Ms McK’s view, this represented a huge shift for both W and S to assimilate.
In my view, Ms McK was an impressive and well qualified witness. I accept her evidence, although it is obviously subject to the proviso that it is purely theoretical in nature and not supported by any clinical observations of either the children or interviews with their parents. However, to my mind, it assumes greater significance when compared with the recommendations that have been made by Ms P, the family report writer.
The family report
Ms P is a social worker. She holds a master of social work degree. She is currently an independent counsellor to the Family Court. More importantly she was the Director of Court Counselling at the Brisbane Registry of the Family Court for eight years. In that role she gained extensive experience in supervising the production of family reports for that court. She was cross-examined by counsel for both of the parties in the case. In my view she was an impressive and well qualified witness. I accept her evidence.
Ms P interviewed both parties on two occasions in July and August of 2001. She also observed both parties with S and W.
I think that it can be fairly recorded that Ms P was impressed by the capacity of both the parties as parents. She noted that each was confident that the children were safe and secure when in the care of the other and that they had a congruent approach to discipline and routines.
Ms P also expressed S as expressing her wishes in respect of the matter as follows:
“Sometimes I get very sad. I miss my brother …. I jump into my brother’s bed at mum’s house …. I miss him a lot. I wish he would live with me all the time – I don’t care which house – I look forward a lot to go to dad’s house because I don’t see him (W) much.”
In the summary and options portion of her report Ms P wrote as follows:
“51.In considering the options, it is to be noted that there is an age gap of approximately five years between the two children in this family, and that while their present mutual attachment is unquestionably strong and may well remain so, even were they to attend the same school, the experiential gap would rapidly widen, as S and W continued their individual development and engaged in age-appropriate activities which could be expected to become increasingly disparate.
52.While Ms V’s proposal could have had merit and been completely workable had it been implemented from the outset (apart from Mr N’s likely high level of distress – to which it is suggested she was responsive in any case – and its probable impact on W and S), it is now 17 months later. W in particular has been through his early distress at being separated from her, and by all accounts has now settled. While the 17 months period has not been of Ms V’s own making, she may at this point need to recognise that her proposal which could once have been in the interests of the children, is no longer arguably so now.
53.Were her proposal to be implemented at this stage, the degree of disruption and distress likely to be experienced by W in particular would be hard to justify, and the compensation for the two children of being together would be seen as insufficient for the degree of dislocation experienced overall.”
In cross-examination Ms P acknowledged that Ms V was a sensitive and caring mother, who would be receptive to W’s needs and any distress he may experience if his place of residence was changed. However, like Ms McK, she was concerned at the potential for W to suffer the “cumulative” effects of further distress if his placement was changed again.
She also agreed, as did Ms McK, that generally speaking siblings benefited from remaining together. However, in Ms P’s view that benefit derived from children sharing the same experiences and coping together through them. Given the time that had lapsed since the children had been separated the potential for that benefit had considerably diminished in this case.
In Ms P’s view, W was “very embedded” in his B C environment and had to a large degree absorbed his father’s ethos of “this is your home and this is your place”. As a result, another change of residence even to “a trusted and beloved mother” was likely to be “anxiety provoking” for W. This accords with my own view, particularly so far as Mr N’s views about the importance of continuity of place for children.
Accordingly Ms P recommended against a change in W’s residence at present. She believed that the disruptive elements of the change was so negative that they clearly outweighed any potential benefits to W. Although Ms P did not doubt, as I do not doubt, the absolute good faith of Ms V in wanting to pursue the change.
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 S and W.
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.
Section 68F(2) – determining the best interests of the children
This is not a case in which either party raises any concerns about the exposure of the children to family violence in any form. Nor is it a case where either W or S have any special ethnic attributes or other special characteristics that need to be taken into account.
a) The children’s wishes
S is not yet 10 years of age. W will be 5 in July. S has expressed some wishes both to her mother and to Ms P. W is of course to young to express any wish as to where he would prefer to live. In my view the wishes of the children in the circumstances of this case are not a strongly determinative factor.
b) The nature of the relationships between the children, their parents and other significant people
I have no doubt that both S and W enjoy good relationships with both their parents. As I have also indicated, I accept that both children are part of warm and loving family groups. I accept that both S and W have formed a positive relationship with Mr D, the mother’s new partner. I also note that Mrs V Senior plays an important role in the care of both S and W when they are living with their mother.
Similarly, Mr N Senior and his wife are involved too a large degree in the care of W and offer the run of their property to S when she comes to visit.
It is to the great credit of the parties that they have been able to maintain a relationship between them which has ensured that both children have been able to pass freely backwards and forwards between their father’s home at B C and the mother’s home at K. However the reality of the situation is that the residences of the children have been separated since March of 2000, a period of now almost two years. In that time the children have grown accustomed to having separate homes. This has meant that inevitably each of them has formed a different type of relationship with each of their parents. In my view, the father and his family are far more significantly connected to W then they are to S. This is perhaps inevitable given their biological connection to him. Their emphasis is very much on continuity of care and residence in respect of W. It is to their credit that they acknowledge that S will always have a connection to their family. However, for the reasons that I have already given it is my view that they have a significantly different feeling towards each of the children. In this aspect I agree with Ms P’s assessment that W is likely to have absorbed the ethos of the N family and their connection with their home at B C and their identification of it as “their place”. On balance, I accept that W too accepts it as “his place” in the world. S on the other hand does not have such an identification.
c) The effect of any change in the children’s circumstances
On any view this is the most significant matter in this case. The mother proposes a significant change in arrangements in the care for W. She puts her proposal forward on the basis that it will be in his long term best interests if he lives in the same residential situation as his sister and attends the same school. Ms V acknowledges the close connection of W with his father. In her application she proposes a regime that would allow him frequent overnight contact with his father in the absence of S. She proposes this as a suitable compromise for the competing demands of W spending time with his sister and retaining his existing close bond with his father. It is the mother’s position that she is sufficiently sensitive and attuned to W’s needs to assist him to cope with the transition she proposes. I accept that she is a sensitive person and a good and capable mother.
However, I am not convinced that the potential benefits that the mother believes will flow to W and S as a result of a change of W’s residence sufficiently outweigh the potential negative effects for W to justify such a change in his residence at this time. The fact remains the two children have been living separately and apart for now nearly two years. As Ms P points out, the optimal time for a change of W’s residence would have been the time when his parents separated. At that time W was confronted with a situation where he lost his mother as a permanent presence in his life. In Ms P’s phrase he “underwent a painful switch”. I agree with both Ms McK and Ms P that another change of residence for him, at his age, represents a significant risk. I have no wish to over play that risk. As has already been said, I accept that the mother is a sensitive and empathetic parent. However the consequences of W becoming anxious and distressed at another change of residence and the risk that this could jeopardise his future emotional well being militate against such a change.
d) The practical difficulties associated with contact
Although the parties live some distance apart and both are involved in full time work it is apparent to me that they have each been able to ensure that the children have regular and rewarding contact with the other parent. The arrangement by which the children move backwards and forwards between their respective households is a somewhat complicated one. However it seems to have worked well and also has embodied within it a degree of flexibility. In this regard the parties have been able to accommodate the mother’s wish to spend more time with W on her flex days off. Accordingly I am not of the view that this is a case in which there are significant practical difficulties associated with contact.
e) The capacity of each parent to meet the children’s needs
Both parents are capable of meeting S and W’s needs, including their emotional and intellectual needs. The children are fortunate to have such committed parents. There is no evidence to indicate otherwise or that both children are not much loved by their parents and are not properly cared for and nurtured by them.
f) The attitude to the children and the responsibilities of parenthood
In respect of this criterion I am content to adopt the opinion of Ms P as proffered in the family report:
“It can be said that each of the parents in this matter has the ability and attributes to parent the children more than adequately. Each also has the commitment and desire to offer good parenting to the children. In this, each is well supported by an involved and highly committed extended family, whose loyalties, while strong, do not take the form of competitive or malicious expression. Nor does either parent dispute the abilities or good faith of the other.”
g) Where it would be preferable to make an order that would be least likely to lead of institution of further proceedings
Finality is desirable in children’s cases. A decision should be made between the competing proposals of the parties as soon as possible.
Conclusions
As is evident, I have formed the view that it is not on balance likely to be in W’s best interests for there to be a change in the residential aspect of his care at the present time.
As I have said, I accept the absolute good faith of the mother in wishing to change the current arrangements. In the best of all possible worlds it would be desirable for W and S to live together. However the best time for making that adaptation was when the parties separated in or around March 2000 not now. The reality is that W has become accustomed to life with his father. In Ms P’s compelling phrase, he is “embedded” in his B C environment. The essence of the mother’s case is that brother and sister should live together. However in this case, there has not been a continuity of mutual support between the siblings and they have had a different residential experience since their parents separated. They have lead largely separate lives. The possible benefits of W and S living together are in my view outweighed by the potential trauma that W may experience at having a change in primary carer once again. In this regard I accept the expert opinion of Ms P, which is theoretically supported by Ms McK.
For all these reasons the orders will be as set out at the commencement of this judgment.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Brown FM
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