v and v
[2004] FMCAfam 690
•30 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| V & V | [2004] FMCAfam 690 |
| FAMILY LAW – Children – contact – best interests of children – transport arrangements for contact – whether parents should share the transport – whether clothing should be provided for contact – father’s wish for more involvement with children’s schooling – whether son should have more contact with father – variation of consent orders – change of circumstances – daughter has genetic disorder – whether an order should be made that the parents should have joint responsibility for the long-term care, welfare and development of the parties’ two children. |
Family Law Act 1975 (Cth), ss.60B, 61B, 61C, 61D, 65E, 68F
Family Law Reform Act1995 (Cth)
Re B (Alleged apprehension of bias) (2004) FLC) 93-185
B & A [2004] FMCAfam 671
In the Marriage of Talbot (1993) 16 Fam LR 910; FLC 92-397
In the Marriage of Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
B and B Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755
In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC 92-778
| Applicant: | M G V |
| Respondent: | G V |
| File No: | PAM 5261 of 2003 |
| Delivered on: | 30 November 2004 |
| Delivered at: | Sydney South |
| Hearing date: | 6 April 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
That orders 1, 2 and 3 made by consent in the Family Court of Australia at Parramatta on 22 September 1994 are discharged.
That the children of the marriage T M V born 17 May 1990 and E M V born 9 June 1993 live with the Respondent mother.
That the Applicant father have contact with the children as follows:
(a)Every third weekend during school term time from after school on Friday until 7.30 p.m. on Sunday extending to 7.30 p.m. on Monday if the Monday is a public holiday;
(b)on the Queen’s Birthday public holiday weekend in each year from after school on Friday until 7.30 p.m. on Monday;
(c)on the weekend that includes Father’s Day in each year from after school on the Friday until 7.30 p.m. on the Sunday;
(d)for the first half of the Autumn school holidays in 2005 and each alternate year thereafter and for the second half of the Autumn school holidays in 2006 and each alternate year thereafter;
(e)for the whole of the Winter and Spring school holidays in each year;
(f)from 10.00 a.m. on 2 January until 4.00 p.m. on Australia Day in each year;
(g)from 4.00 p.m. on Christmas Eve until 4.00 p.m. on Boxing Day in 2005 and each alternate year thereafter; and
(h)at such other times, if any, as the parties may agree.
By consent, the father is to have telephone contact with the said children at all reasonable times to include but not restricted to Christmas Day, the father’s birthday and each of the children’s birthdays.
The father is not to exercise contact other than telephone contact on the weekend that includes Mother’s Day in each year. If Mother’s Day falls on a weekend when the father would normally be entitled to exercise contact according to these orders then contact will take place on the next weekend.
School holiday contact
For the purposes of these orders:
(a)school holidays are deemed to commence on the Saturday immediately after school term concludes;
(b)school holidays are deemed to conclude on the day immediately before the first day the children are required to attend school at the commencement of each school term;
(c)a day designated by the school attended by each of the said children as a “pupil free day” is not a day when the children are required to attend school;
(d)contact for the first half of the Autumn school holidays will commence at 10.00 a.m. on the Saturday immediately after school term concludes and will conclude at 4.00 p.m. on the middle Saturday of the said school holidays;
(e)contact for the second half of the Autumn school holidays will commence at 4.00 p.m. on the middle Saturday of the school holiday period and will conclude at 4.00 p.m. on the day immediately before the children are required to attend school at the commencement of the next school term;
(f)contact for the Winter and Spring school holidays will commence at 10.00 a.m. on the Saturday immediately after the school term concludes and conclude at 4.00 p.m. on the day immediately before the children are required to attend school at the commencement of the next school term.
Contact changeover
For the purpose of contact changeover:
(a)When exercising contact in accordance with Orders 3(a), 3(b) and 3(c), the father must collect the children from their respective schools and return them to the mother’s residence at the conclusion of each contact period;
(b)When exercising school holiday contact in accordance with Orders 3(d), 3(e), 3(f) and 3(g), the father is to collect the children from the mother and return them to the mother at the overbridge at H Railway Station.
Clothing and footwear
By consent, the mother is to ensure that the children are provided with an adequate quantity of clothing and footwear for each period of contact.
The father is to use his best endeavours to ensure that the children’s clothing and footwear are returned to the mother clean and intact at the conclusion of each contact period.
The children’s schools
The mother must within seven (7) days authorise the principal of each school attended by the children to provide to the father on a regular basis copies of all school reports, bulletins, newsletters, information about school photographs and other information normally provided by the school to parents of children attending that school.
Each of the parents is permitted to attend the children’s schools for the purpose of parent-teacher interviews, school concerts, prize giving ceremonies, swimming carnivals, sporting activities and other activities normally attended by parents and families of children attending the children’s schools subject to the parents complying with all reasonable directions of the Principal or Deputy Principal of each school or any person acting on behalf of the Principal or Deputy Principal.
The mother is directed to forward a copy of these orders to the Principal of each school attended by the children within seven (7) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 5261 of 2003
| M G V |
Applicant
And
| G V |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father of two children to vary orders that were made by consent in the Family Court at Parramatta on 22nd November 1994. The orders relate to the parties’ two children, T M V, who was born on 17th May 1990, and E M V, who was born on 9th June 1993.
The children’s mother, who is the Respondent to the application, opposes most of the orders sought.
The father commenced proceedings in the Local Court of New South Wales at M by means of an application filed on 4th August 2003. In that application, he sought orders for the parents to have joint responsibility for the long term care, welfare and development of the two children, and that the two children should commence to live with him from the beginning of the 2004 school year.
The mother filed a response in which she sought that the proceedings be transferred to the Family Court at Parramatta. On 16th September 2003, the Magistrate at the M Local Court transferred the proceedings to the Family Court. The parties attended confidential counselling on 12th December 2003. A Deputy Registrar transferred the proceedings to the Federal Magistrates Court.
On 29th December 2003 the father filed an amended application. The proceedings went to hearing on the basis of this document. The father seeks these orders:
a)That the parties have the joint responsibility for the long term care, welfare and development of the children of the marriage, T M V born 17/5/90 and E M V born 9/6/93.
b)That the applicant father exercise defined contact with the children as follows:
i)The father collect the children on each alternate Friday at 3.00 p.m. from the children’s school or the mother’s residence; and
ii)At the conclusion of the contact periods the mother collect the children at 5.00 p.m. Sunday or 5.00 p.m. Monday if contact falls on a long weekend, from the father’s residence; and
iii)The father exercise contact with the children for half of each of the school holiday periods, with the same transport arrangements as weekend contacts, the second half of 2004 for each of the holiday periods, except for the Christmas holidays when the children will go for the first half. The holidays are to alternate each year; and
iv)At other times as agreed to by the parties; and
v)Telephone contact at all reasonable times.
c)That the respondent mother provide adequate clothing and footwear for the whole of the contact periods with the father.
d)That the respondent pay for the costs of the applicant and for (sic) incidental to the application.
In her response, filed on 6th January 2004, the mother indicated that she agreed to these orders sought by the father:
a)Telephone contact at all reasonable times; and
b)That the respondent provide adequate clothing and footwear for the whole of the contact periods with the father.
The mother also set out three different proposals for orders that she seeks:
a)That the custody and access orders made at the Family Court in 1994 remain in place; OR
b)That the mother has full custody (sic)
That the father collects the children from school every fourth Friday and returns them to the mother at 5.00 p.m. on the Sunday evening or the Monday if contact falls on a long weekend.
i)That the father have all of the school holidays with the children except Christmas school holidays. Christmas holidays will be shared by the Applicant and the Respondent with the children going to their Dad (sic) the first half in 2004 and alternating thereafter.
ii)Telephone contact at all reasonable times.
iii)The mother will supply clothing for the contact periods.
iv)That the Applicant pays for the cost of the Respondent and for (sic) incidental to the Application; OR
c)That the mother has full custody.
That the father collects the children from school every third Friday and returns them to the mother at 5.00 p.m. on the Sunday or the Monday if contact falls on a long weekend.
i)That the father collects the children from school for half of the Easter School holidays commencing with the first half in 2004, alternating thereafter. The father collect the children from school for all of the June/July school holidays and the September/October school holidays returning the children at 5.00 p.m. the Sunday before school begins. That the father collect the children from School for the first half of the Christmas School holidays commencing 2004 returning them to the mother on an agreed upon date, alternating thereafter.
ii)Telephone contact at all reasonable times.
iii)The mother will supply clothing for the contact periods.
iv)That the Applicant pays for the cost of the Respondent of and incidental to the application.
Background
The parties were married on 23rd September 1989. There are two children of the marriage, T, who was born on 17th May 1990 and E, who was born on 9th June 1993. T was just short of 14 years old at the date of the hearing and E was 10 years old.
The parties separated in about September 1992. They were divorced on 15th November 1996. The children have been living with the mother.
The parties entered into consent orders in the Family Court on 22nd September 1994. Those orders provided the following:
a)That the mother have custody (now called residence[1]) of the two children;
[1] The term was changed by the Family Law Amendment Act 1995
b)That the father have access (now called contact[2]) to the child T:
i)on alternate weekends from 3.00 p.m. Friday to 5.00 p.m. Sunday, extending to Monday on a long weekend;
ii)on Wednesday from 3.00 p.m. to 5.00 p.m.;
iii)by telephone one weekday per week before 6.30 p.m.;
iv)on Boxing Day 1994;
v)from 6th to 29th January 1995;
vi)for the first half of the Christmas 1995 school holidays and each alternate year thereafter, and for the second half of the Christmas 1996 school holidays and each alternate year thereafter;
vii)for the first 9 days of the June/July and August/September school holidays from 3.00 p.m. on the last day of school term and concluding at 5.00 p.m. on Sunday week;
viii)for the first 8 days of the Easter school holidays from 3.00 p.m. on the last day of term until 5.00 p.m. the following Friday.
[2] This term was also changed by the Family Law Amendment Act 1995
There were different contact orders for E, who was only 15 months old at that time. Order 3(f) of those consent orders provided that the contact arrangements for E would be the same as for T from June 1996 onwards.
The mother still lives in the Sydney suburb of South G with the children. The father, who was living in Sydney, moved to the country town of M in 1995. He moved to the town of D the following year, and he has continued to live there and work in his profession as a TAFE teacher.
The father remarried on 14th July 2001. He and his current wife have a daughter of their own, who is now about three years old.
The mother deposed that she works during school hours at an Aged Care Facility as a Recreational Activities Officer. She is studying for a Diploma in Diversional Therapy. There is no evidence that she has repartnered.
The father has exercised contact with the children on a regular basis. In his affidavit filed with his original application and sworn on 17th August 2003 he deposed that the child T wanted to live with him. He said that the child had been making this request since November 2002. He deposed that he had attempted to discuss this issue with the mother in June 2003, which appeared to have soured relations between the parties. The father says that contact had been liberal up until then, certainly more than the consent orders provided. After June, the father says that the mother restricted the contact to the strict terms of the orders.
Evidence
The father filed an affidavit on 29th December 2003 in support of his amended application. As his amended application differs greatly from his earlier application, his earlier affidavit is of very little relevance. He also filed an affidavit on 29th March 2004, in which he replied to a number of assertions in the mother’s affidavit.
The mother filed an affidavit on 6th January 2004 in support of her response. Some medical evidence has been annexed to this affidavit. There were no objections to any of the affidavit material.
It is the father’s evidence that the children live with their mother and attend schools in the Catholic Education System in the G area. The father claims that the mother leaves the children unsupervised on occasions before or after school. The mother denies this allegation.
The father deposed that the child T is in good health, but E has a genetic disorder called Ectodermal Dysplasia. The father says that she has “a mild case” of this disorder. He deposes that it mainly affects her physical appearance:
She does not require any special medication or treatments. Precautions include monitoring her temperature and exposure to the sun. She has problems with her teeth and requires occasional treatment.[3]
[3] Applicant’s affidavit paragraph 24
The father deposes that he has been exercising telephone contact at all reasonable times, every alternate weekend and half school holidays. He stated that “contact with the father has up until recently involved most of the school holiday periods”.[4]
[4] Applicant’s affidavit paragraph 28.
One issue that the father expanded upon in his affidavit is his concern about the transport arrangements for contact and their cost. He sets out his concerns in paragraphs 30 and 31 of his affidavit:
Present transport arrangements for contact require the father to collect the children from their school or their mother’s residence, and to return the children to the mother’s residence at the conclusion of the contact periods. This current arrangement requires the father to travel for some 7 – 8 hours to collect the children for contact and then to travel again some 7 to 8 hours to return the children (at) the end of the contact periods…
There is no payment for the costs associated with transport by the respondent mother. The applicant father pays for all the transport costs associated with travel associated with contact. This involves in excess of $150.00 in fuel cost alone, not to mention wear and tear and maintenance costs of the father’s vehicle and time off work.
The father also referred to his concerns about the children not having adequate clothing when they go on contact with him, but the mother has agreed to an order more or less in the terms sought by the father on this issue. It is unnecessary for me to go into it further, except to make the order and note that it is an order made by consent.
In her affidavit, the mother denied the father’s claim that the children were not supervised before or after school. In paragraph 16 of her affidavit she says “Tim and E are always supervised…the children are never left unsupervised before or after school”. In paragraph 26 of her affidavit, the mother points out that she works only during school hours “so as to be available to my children before and after school. Tim and E are never left unsupervised during school holidays”.
In paragraph 33 of her affidavit, the mother makes a plea for compromise and perhaps some lateral thinking:
I am happy to leave contact as it is, I can’t help with travel or money, and the applicant is no longer happy with the current arrangement. So this is where we need to compromise and meet in the middle. As long as the children are in their own beds the night before school I don’t see why we have to stick to such a traditional access order. The order made in 1994 was when we were living within a two-minute drive from each other before the applicant moved away from Sydney.
The mother gives several reasons why she is unable to assist with the travel to M for contact:
The air conditioning system in my car no longer works and I have to drive the car with the heater on to stop the car from overheating. I have been told that I have radiator problems and the air con can’t be repaired. I had the air con repaired last October, it only lasted weeks before breaking down.[5]
I accepted a child support reduction of $233.59 per month in 1997/98 to help the applicant with the cost. I am no longer in a position to help the applicant financially.[6]
[5] Respondent’s affidavit paragraph 35.
[6] Respondent’s affidavit paragraph 36.
The mother annexed a statement to her affidavit, headed “Attachment for Item 47”, in which she set out her concerns about driving in the country to M and back:
Apart from the fact that I have a 20-year-old car that has been dreadfully neglected over the years and may not pass rego in March[7], I do not possess the driving ability to facilitate a trip of this nature. I had to appear in the M Local Court in September 2003 regarding the previous matter of residency. I borrowed a car and had my aunty accompany me to share the driving responsibilities. We also left the day before the hearing and stayed in a motel in M overnight, because I knew we could not do the trip in a day. I was a nervous wreck due to the high speeds on the freeways and country roads, not to mention the multi lane roundabouts on the New England Highway that nobody seems to understand. I’m not prepared to travel at those high speeds.
[7] The Respondent told the court that the car was still unlikely to pass the inspection for registration
The mother takes issue with the father’s characterisation of the child E’s Ectodermal Dysplasia as “mild”, saying that there is no mild form of the condition. She annexed some material from the Internet about the condition, as well as copies of the following medical reports:
a)undated report from Dr M W, Clinical Geneticist, referring to an examination of the child E on 13th February 1997; and
b)Report dated 11th June 1997 from Dr C N, Registrar of Paediatric Dentistry at the W Hospital Dental Clinical School.
Both of the reports refer to the child’s heat intolerance. Dr N says:
More importantly, because of the nature of the condition, she produces less sweat and tends to suffer heat intolerance, especially during summer. She needs to have appropriate air conditioning and to be kept cool in summer, without any unnecessary outdoor, heat-exposure activities.
The mother also made some other pertinent comments in paragraph 2 of “Attachment for item 47”. She pointed out that she makes “plenty of sacrifices” of time with the children on important occasions:
a)she said she had not spent New Year’s Eve with the children since 1999;
b)she said that the children had spent Easter with their father “almost every year that I can remember” because TAFE holidays do not always commence at the same time as school holidays;
c)Mother’s Day always falls on a contact weekend, so the children spend the day with their stepmother, the only exception being Mother’s Day 2003, when the children were with her; and
d)the children always spend Father’s Day with their father.
In the father’s second affidavit, he suggests that the mother is exaggerating the seriousness of the child E’s condition. He stated that:
E currently travels every second weekend to and from D in a 20-year-old car without air conditioning and has done so for over 9 years. The only precaution that has ever been taken is to ensure that there is a sufficient supply of water and a wetted towel or cloth and then only in the extreme hottest of weather. I have not needed to use a wet cloth to cool E at any time in the past 2 years.[8]
[8] Applicant’s affidavit sworn 25.3.2004 paragraph 4
The father asked to cross-examine the mother on her affidavit material. The mother reiterated her evidence that her car was inadequate for the purpose of transporting the children on long distances. It needed a new radiator. The mother said that E needs to be transported in an air-conditioned car.
The mother said that she had not had E reviewed again because there are no medical advances. She takes the child to appointments with a specialist.
The mother said it had been the parents’ joint decision that the children should go to Catholic schools. Before they separated, they talked about the children going to the H Family Primary School.
The parties’ submissions
The father submitted the following:
a)He has been undergoing all the contact travel since the consent orders were made in September 1994;
b)It is oppressive on the children to have to take them back by 5.00 p.m. on Sunday;
c)The children effectively only spend one day with him, his wife and their daughter, because they are travelling on Friday night and much of Sunday;
d)The child T needs more contact with him;
e)He has never been invited to parent-teacher nights at the school, nor is he given school newsletters;
f)He wants to share the transport rather than make the whole trip; and
g)He suggests that he should return the children to school after alternate weekend contact.
The mother submitted the following points:
a)T had said that he wanted to live with his father at one stage, but he later changed his mind. The issue is used as a tool for manipulation of her;
b)Travel for contact is a financial burden for both parents and her car is not fit for the task;
c)She is also a student, so she is not in a position to spend every second Sunday travelling to and from M;
d)The children want to go away every second weekend – they love their father;
e)She has tried to amend the contact to make it easier for the father – she does swap weekends;
f)If she were to travel every second Sunday she would have “no life”;
g)The transport arrangements are the same for school holiday contact;
h)She saw “no drama” about the children getting back from contact at 7.30 p.m., nor is it a problem if the father picks the children up from school early;
i)She tries to encourage the children to speak to the father over the non-contact weekends;
j)She had “no problem” about passing on school information;
k)She suggests that contact during the school term should be every third weekend with more school holiday contact; and
l)She is opposed to the father returning the children directly to school on Monday mornings, because the drive from M to school would take too long.
In reply, the father stated that he had applied to the Child Support Agency for a reduction in child support in the 1997/1998 year, because of the high cost of exercising contact. This application needs to be made annually.
Principles to be applied
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (Family Law Act, s.65E).
Except when it would be contrary to a child’s best interests, a court should have regard to the principles set out in s.60B(2) of the Act. These include children’s right to know and be cared for by both parents and their right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
In determining the best interests of a child, the court must consider the matters set out in s.68F(2). These matters include the wishes of the child, subject to the child’s maturity and understanding. The court must also consider the nature of the relationship of each child with each parent (s.68F(2)(b)), and the likely effect of any separation from either of the child’s parents (s.68F(2)(c)).
There is a general view that if a child’s situation is stable and the child is doing satisfactorily, it is sensible to be cautious about changing the situation unless there are good reasons for considering that doing so will benefit the child.[9] This does not mean that there is an onus that a party must discharge before there can be a change to the status quo. The status quo is no more than one factor to be taken into account in determining what is in children’s best interests.
[9] Chisholm, R and Dewar, J, “Australian Family Law”, Butterworths, Chatswood, 2003, p. 1326.4, paragraph s. 68F.57
A recent decision by the Full Court of the Family Court provides guidance to courts when considering the issues in cases involving children. In Re B (Alleged apprehension of bias) (2004) FLC 93-185, Nicholson CJ made this point about the role of the judge in assessing and determining issues in cases involving children:
I do not think it is appropriate in children’s matters for the parties to be able to determine the issues in this way…I think that the time is long past when Judges should be expected to sit passively and determine issues defined by the parties or, as in this case, one of them, in circumstances where the best interests of children are involved (FLC 93-185 at 79,136).
It appears clear to me that, based on the above judgement, the proper approach is not just to consider the issues raised by the parties, but the overall welfare of the children. The best interests of the children are the paramount consideration, and orders intended to consider the children’s best interests may not necessarily coincide with orders sought by either of the children’s parents. At the same time, the Court has an obligation to deal justly and fairly with the litigants.
Conclusions
The first thing that appears to me that needs consideration is the fact that the original consent orders were prepared in September 1994, a little over ten years ago. Circumstances have changed, and it is time to consider the contact arrangements again, because both parties submit that the arrangements are no longer appropriate. I have some concerns that the arrangements are no longer the best solution for the children’s need for contact with both of their parents on a regular basis.
The most obvious changes appear to have occurred on the father’s side. When the orders were made in 1994, he was still living in Sydney, a short drive away from the mother’s residence. Since then, he has moved to the country, and he currently lives in De, near M. What was a two-minute drive is now a three and a half or four hour drive each way.
The parties have divorced, and the father has remarried. He and his wife have a little girl of their own, who is the children’s half-sister. The children have developed relationships with their stepmother and half-sister.
The child T has now turned 14, and E has turned 11 years. There is no independent evidence of their wishes, but the mother has given evidence that the children want to have contact with their father every other weekend.
The children appear to have a good relationship with each parent. The mother, in saying that the children want to see their father every fortnight, conceded “They love their father”. Whilst the father originally sought to change the residence arrangement because T was saying that he wanted to live with him, it appears that T changed his mind and preferred to remain living with his mother.
There is no independent evidence about the quality of the relationship between the children and their stepmother, or between the children and their half sister. The father has said in his affidavit filed on 29th December 2003:
T and E love their new sister and they miss each other terribly between contact visits. My new wife Lois has a loving relationship with T and E and we all enjoy the contact that we have (paragraph 13).
The mother has not challenged this evidence. Indeed, she has said in her “attachment for item 47”:
I have also opened up my home to L and their baby daughter L and encouraged the relationship between her and the children (paragraph 2).
The likely effect of any changes in the children’s circumstances would depend on what, if any, variations are made to the contact orders. The father is not seeking a change of residence, and I do not see any grounds for a change, despite the father’s continual harping on the assertion that the mother does not supervise the children properly. As there is no evidence in support of this allegation, it remains a bald assertion by the father, which the mother comprehensively denies. The father does not seek any orders that would enhance the supervision that he claims is deficient, and it is hard to see what the purpose of these allegations might be. If it is no more than generalised “mudslinging” it will not assist the father in his case.
I am concerned, however, that travelling between G and D every alternate weekend during the school term is not necessarily in the children’s best interests. The parties estimate that the journey takes 7 or 8 hours return, which is a lot of travelling for a weekend on a regular basis. There are surely better ways to meet the children’s need for contact with their father than frequent and tiring travel by motor car.
The practical difficulty and expense of the children having contact with their father (s.68F(2)(d)) stems from the distance between the two parties’ homes. I have already expressed my concern about the travel. If the father finds it tiring, and he has had plenty of experience of it, so too must the children. The father’s point that only one day of a contact weekend is not spent travelling is a telling one. The evidence that E has a heat intolerance is relevant to the travelling issue.
There appears to me to be no reflection on the capacity of each parent to provide for the children’s physical, emotional and intellectual needs. The father believes that T needs more time with him, which is not unlikely, considering that T is a boy who has just turned 14.
I have already considered the children’s maturity, sex and background (as required by s.68F(2)(f)). I believe that it is relevant that the parties’ daughter, E, suffers from Ectodermal Dysplasia. The father does not believe that her condition is as serious as the mother says it is, but I rely on the medical evidence produced by the mother. E lives with her mother, and I accept that the mother is capable of forming a view about her child’s condition based on her frequent and long-term observation of the child.
Issues of family violence, apprehended violence orders and physical or psychological harm are not relevant. I have already considered the mother’s concern about harm to E due to her condition. I am satisfied that the father is a loving and caring parent who would never knowingly place his children in danger.
It would be preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to these children. The parties have largely avoided litigation, but difficulties between them arose in 2003. I consider that a fresh set of contact orders that meets the children’s needs for contact with both parents and reduces the strain of frequent and lengthy travelling on them would be the best way to achieve this aim. I am aware that the mother says that she is not in a position to undertake half the contact travel, for financial and practical reasons. I can just as easily understand that the father must be getting sick of all this travelling by now.
I propose to make orders that will cover the entire contact situation. It is better for the parties to have one document that sets out the parenting arrangements rather than two, so I will discharge the Family Court Orders and issue one set of orders. They will obviously include a residence order in favour of the mother.
It is high time that the contact arrangements of each alternate weekend came to an end. Whilst that arrangement may have been suitable when the parties lived in Sydney, the distance between the homes of the two parents makes the arrangement less than suitable. The mother has suggested that contact during school term takes place either every third weekend or fourth weekend. In my view, one weekend in three would be the greatest frequency that I would consider appropriate. I would have seriously considered one weekend in four, except that the mother has given evidence, which I accept, that the children want to see their father every other weekend during school term because they love their father. It appears to me, that after years of travelling to D to spend a weekend with their father every fortnight, the children may well feel that the gap between contact periods is too long if contact only took place one weekend in four.
The father has submitted that the weekend contact could end with the children being delivered to school on Monday morning, rather than Sunday evening. I am not persuaded that this would be in the children’s best interests. To travel for three and a half or four hours and then to have a full day at school would be very tiring for any child, I suspect. The idea appears to be impracticable.
In my view, the children could well be returned to their mother at 7.30 p.m. rather than 5.00 p.m., which has been the case up to this time. The children are aged eleven and fourteen; they will still get plenty of sleep if they are returned home by 7.30 p.m.
The original orders envisaged the children spending public holiday Mondays with the father, and it makes very little sense to interrupt a public holiday weekend to return children on a Sunday night. Some long weekends fall within school holiday times, and I note that Term 2 in New South Wales does not start until Tuesday 26th April, because ANZAC Day falls the day before. At the same time, though, the Queen’s Birthday weekend falls in June, in the middle of Term 2, and that would seem to be a most suitable weekend for the children to spend with their father.
I also note that the mother has complained that the children usually spend Father’s Day with their father, but seldom spend Mother’s Day with her. Whatever one may think of the commercialism attached to those two days, most children in our society expect to be with the appropriate parent on Mother’s Day and Father’s Day, and many parents feel sad if their children are not with them on a day devoted to celebrating that parenthood. In my view, the children should spend the weekend that includes Father’s Day with their father, and the weekend that includes Mother’s Day with their mother. If it so happens that this arrangement disturbs a regular one weekend in three pattern, then so be it.
Obviously, the children would see less of their father if there were no compensatory time during the school holidays to make up for the change to the weekend routine. In a ten week Term, the children at present spend five weekends each Term with their father, which involved 10 days of contact. If the contact reduces to every third weekend, the children would spend either three weekends or four with their father, depending on when the weekends were scheduled. Thus, they would lose either two days or four days each Term with him.
Clearly, the way to make up this time is to extend school holiday contact. The mother suggests that the children should spend the entire June/July (ie winter) school holiday period and the entire September/October (ie spring) school holiday period with their father. The present Orders provide for 9 days during each of those holidays. I intend to adopt the mother’s proposal. The orders that I will make will provide that the children will spend the entire winter and spring school holidays with their father, which will mean 16 days rather than 9 days each time. In this way, the children would spend an extra 14 days with their father during the year, which would be roughly equal to the amount of time lost during the term.
I believe that the autumn school holidays should be divided between equally between the parents. The current orders provide that the Christmas/January school holidays should be equally divided between the parents, alternating first half and second half. To my mind, the need for the children, especially T, to spend more time with the father, could be met by guaranteeing the father more contact in January of each year. Christmas Day can be alternated between the parents each year, as happens in many Australian families.
To my mind, more block contact, interspersed with frequent telephone conversations, will meet the children’s needs at least as well as alternate weekends. I might add, that the increased school holiday contact will go a long way to allay whatever concerns the father may have that the children’s mother does not supervise them during the school holidays. The children will be spending more holiday time with him, so he can supervise them. The father is a TAFE teacher, so he can take advantage of the holiday time given to him for contact. I am aware that the mother has said that TAFE holidays do not coincide exactly with school holidays, but they tend to be similar.
The father wants an order that the parents share the contact travel.
I have made orders that would reduce that travel, but I cannot see that the mother is in a position to undertake much of it herself. If she had a reliable car, I would have considered another arrangement, but I am concerned about the mother travelling with the children by public transport on a Sunday evening.
I am aware that it was the father’s decision to leave the Sydney metropolitan area in 1995. He has certainly undertaken almost the entirety of the contact travel on a frequent and regular basis ever since. It does appear to me that, even with her motor car difficulties and concern about travelling on country roads, the mother should make some contribution, no matter how small, to sharing some of the contact travel burden.
In order to collect and return the children for contact, the father has to drive down from D and enter the Sydney metropolitan area from the North. He then has to drive through suburban traffic to get to G.
I intend to order that the contact changeover point for school holiday contact will be the overbridge at H Railway Station, which would reduce the father’s travelling time substantially. I can take judicial notice that there are parking areas at H Railway Station. If the mother does not have the use of a motor car, she can travel by train. I also take judicial notice of the fact that many suburban electric trains in Sydney are air-conditioned.
It is time, too, for the practice of collecting the children after school at the end of the school term for school holiday contact to come to an end. The father should collect the children on the Saturday morning at H Railway Station. The mother has consented to an order that she will provide adequate clothing and footwear for the children for contact. It is particularly important for school holiday contact that the mother has time to pack the children’s bags and make sure that they have sufficient clothes for a week or more away. I might add that the father should make a point of seeing that the clothes are returned to the mother in a decent state, preferably clean.
It seems to me that the arrangements for weekend contact during the school term will need to remain the same, except that their frequency will be reduced.
There seems to me to be no reason why the father cannot be made aware of the progress of the children at school. He is a teacher himself, and he would be able to contribute to matters concerning the children’s education. He should certainly be able to attend parent teacher interviews, school concerts, prize-givings and sporting carnivals if he wishes or is able to, and no doubt the children would be glad for him to attend. He should receive his own copies of the children’s school reports, and not have to rely on the mother to provide them.
Joint responsibility for long-term care, welfare and development
The other issue that needs to be considered is the father’s application to vary the consent orders so that the two parents have joint responsibility for the children’s long term care, welfare and development. In the mother’s response, she seeks an order for “full custody”, which presumably means sole responsibility for the children’s care, welfare and development. If all she means is “sole residence”, she has had that for over 10 years.
I have recently considered this issue in a matter called B & A, cited in this Court at [2004] FMCAfam 671. I reiterate my comments.
Parental responsibility is defined in s. 61B of the Family Law Act:
In this Part[10], parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[10] Meaning Part VII of the Act
Section 61C provides that each parent of a child who is under 18 has parental responsibility for that child, subject to court orders. This situation is not affected by any changes in the nature of the relationship between the parents, such as becoming separated or re-marrying (s.61C(2)). The situation can be changed by a court order (s.61C(3)).
Section 61D of the Act provides that a parenting order, such as a residence order, confers parental responsibility on a person, but it doers not take away or diminish any aspect of parental responsibility unless it expressly says so.
Bearing those sections in mind, it is clear that the consent orders made in the Family Court on 22nd September 1994 did not affect the parental responsibility that the parents previously had. Order 1 is what would now be called a residence order:
That the applicant wife have sole custody of the children T M V born 17 May 1990 and E M V born 9 June 1993.
The father’s proposed Order would change the legal situation. It would impose a mandatory requirement on the parents that they exercise parental responsibility jointly, and only jointly. This situation has been considered in a number of cases.
In a decision on s. 63F, the predecessor of s.61C, In the Marriage of Talbot, (1993) 16 Fam LR 910; FLC 92-397, Buckley J in the Family Court held that the effect of s.63F(1) was to make each of the parents a separate and not a joint guardian of the child:
As each of the parents is a guardian, each is prima facie entitled to make decisions concerning the long-term welfare of the children of the marriage independent of the other…The exercise of a guardianship right does not require joint action on the part of both guardians, but…the actions of one alone will suffice (16 Fam LR 910 at 914).
The Full Court of the Family Court picked up this issue in the well-known decision of In the Marriage of Harrison & Woollard (1995)
18 Fam LR 788; FLC 92-598. Justices Fogarty and Kay made this point on the operation of s.63F(1):
The practice of making ‘joint’ guardianship orders is a common one, but it is not the normal one prescribed by legislation. Unless it is by agreement or unless particular reasons are given, it should be usual for a judge at first instance who wishes both parents to continue to be guardians to make no order at all as to guardianship and leave the matter as established by the legislation (18 Fam LR 788 at 805).
The Family Law Reform Act1995 (Cth) removed the concept of “guardianship” and introduced the concept of “parental responsibility”. This is defined, as I said in paragraph 70, by s.61B. Section 61C(1) replaced s.63F(1) and substituted the term “parental responsibility” for the earlier term “guardianship”. In all other respects it is couched in similar terms as s.63F(1).
In B and B Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755, the Full Court confirmed the view expressed in the earlier decisions of Harrison & Woollard (supra) and Talbot & Talbot (supra). In discussing s.61B, Nicholson CJ, Fogarty and Lindenmayer JJ had this to say:
9.26Read in conjunction with s. 60B(2)(c) the emphasis is on the continuance of responsibility independently of the status of the parental relationship. Section 61D(2) provides that a parenting order does not take away or diminish any aspect of parental responsibility except to the extent expressly provided for in the order or necessary to give effect to the order.
9.27An important issue is whether parents may exercise this responsibility independently or whether they must do so jointly…
9.29In the absence of a specific issues order, we think it unlikely that the parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day-to-day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated.
9.30As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children, such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation (21 Fam LR 676 at 729-30).
In the case before me, the father’s proposed order would change the legal status. It would go from an individual exercise of parental responsibility to a mandatory requirement that parental responsibility be exercised jointly (see In the Marriage of Vlug and Poulos (1997)
22 Fam LR 324; FLC 92-778).
To my mind, a mandatory requirement for joint action would be likely to be a source of friction and frustration between the two parents. They have had a long-standing disagreement about contact arrangements, which they have been unable to resolve. A requirement for joint action would be impracticable, in my opinion. I decline to make the order sought.
I am not persuaded to make the order that the mother seeks, either. There may be times that the father has to make a significant decision about one of the children whilst that child is in his care. I would expect that the parents would consult each other about serious matters such as the children’s health and education.
It is for these reasons that I make the orders as at the commencement of these Reasons.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 30 November 2004
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