v & v
[2006] FMCAfam 216
•18 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| V & V | [2006] FMCAfam 216 |
| FAMILY LAW – Contact dispute – Rice and Asplund – change in circumstances – proposal to increase contact – block contact – children’s best interests – significant past contact – acrimonious relationship between the parties – breakdown in communication – children’s wishes expressed cautiously. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)
B and B: Family Law Reform Act1995 (1997) FLC 92-755
Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215
D and Y (1995) FLC 92-581
King and Finneran (2001) FLC 93-079
Bennett and Bennett (1991) FLC 92-191
| Applicant: | FV |
| Respondent: | MV |
| File Number: | CAM 1286 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 16 August 2005 |
| Delivered at: | Canberra |
| Delivered on: | 18 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Tallarita |
| Solicitors for the Applicant: | Joseph Tallarita |
| Respondent: | In person |
ORDERS
Order 3 of the Orders of the Family Court of Australia, Canberra, dated 19 August 1996, be discharged.
The Orders of the Federal Magistrates Court of Australia, Canberra, dated 1 November 2004, be discharged.
The children of the marriage RV born September 1990 and CV born December 1993 have contact with the father as follows:
(a)during school terms, from Friday afternoon after school until Monday 7:00 p.m., and if Monday is a public holiday until 7.00 p.m Tuesday, each alternate weekend;
(b)during school terms, the father will collect the children from school for the commencement of contact. At all other times, unless agreed between the parties, the father will collect and deliver the children for commencement and conclusion of contact from one house prior to the mother’s residence;
(c)for one half of each school holiday period with the father to have the first half and the mother the second half of such holiday periods in even numbered years and the father shall have the second half and the mother the first half of such periods in odd numbered years;
(d)if the children express a wish to have additional contact with the father, the mother will facilitate such contact;
(e)if the children express a wish to return early to the mother from contact, the father will facilitate such early return;
(f)any other contact as agreed between the father and mother.
The contact referred to in Order 3(a) above recommence after the conclusion of school holiday contact as follows:
(a)if the father had contact with the children for the first half of each holiday period, the first weekend after the commencement of the school term following such holiday contact period;
(b)if the father had contact for the second half of each holiday period, the second weekend following the commencement of the school term following such holiday contact period.
In the event the father and mother are within 25 kilometres of each other on Christmas Day or Easter Sunday the children have contact for 3 hours with the parent who they are not in the care of on that date and the parent having contact shall be responsible for the collection and return of the children at the commencement and conclusion of contact.
Each child have contact with both parents on the child’s birthday for a minimum of two hours, with the details to be agreed between the parties.
The father be restrained from attending upon the mother’s residence unless absolutely necessary and with the mother’s permission.
The father telephone the mother at her home or work only if the call concerns the well-being of the children or to make contact with the children.
Each parent be restrained from discussing with each of the children or in their presence issues in relation to child support.
The mother ensure that when the children are in her care, each child has their own bedroom.
Each parent be restrained from saying unkind or unpleasant things about the other parent or permitting any other person to do so.
Each parent notify the other of any medical emergency or medical matters relating to the welfare of the children when the children are in their care.
If the children are ill or for any other reason cannot be cared for by the mother for periods exceeding 8 hours, then the mother give the father the first option to care for the children.
The father and mother maintain a book for the purpose of recording important and/or significant matters relating to the children and the book be sent with the children at changeover.
Each parent be restrained from obtaining a passport for the children without the agreement of the other parent or court order.
Each parent ensure that homework is done by both children when they are with them.
The father be restrained from smoking in the presence of the children.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1286 of 2004
| FV |
Applicant
And
| MV |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 August 1996 the parties agreed to consent orders for the residence and contact arrangements for their two children. The father now seeks to vary the contact and to add some specific issues orders. The mother opposes many of the orders sought by the father and proposes changes of her own.
The parties were married in September 1989 and separated in
January 1996. A Decree Nisi was pronounced in the Family Court of Australia in July 2001.
There are two children of the marriage, RV born September 1990 and CV born December 1993. They reside with their mother and have done so since separation.
The father was born in August 1950 and is aged 55 years.
The mother was in 3 May 1964 and is aged 41 years.
The father is unemployed and is in receipt of a disability support pension. He earns some income from selling antiques. The mother is employed full time as a public servant.
Interim orders were made on 1 November 2004 in this Court providing for additional contact between the children and the father.
The applicable law
Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to s.65E which provides that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle. In B and B: Family Law Reform Act1995 (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The principles set out in section 60B(2) have particular relevance in these proceedings. They are:
a.children have the right to know and be cared for by both 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 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.
These provisions emphasise the desirability of regular involvement of both parents in their children’s lives. The involvement and responsibilities ideally should be shared. The contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In a case where a party seeks to vary existing orders, it is appropriate to have regard to the threshold test and apply the principles derived from Rice and Asplund (1978) 6 FamLR 570; (1979) FLC 90-215. In that case the Full Court of the Family Court held that:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied … that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The decision in Rice and Asplund has been subsequently followed in a series of cases (for example, D and Y (1995) FLC 92-581; King and Finneran (2001) FLC 93-079). In King and Finneran, Collier J sitting on appeal explained the way in which the Court should apply the test:
44.To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary, collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
49.…this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50.…The changed or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
If this threshold is met, the Court must then determine the issues in the ordinary way. Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order.
Section 68F(2) sets out the matters that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests in residence, contact and other parenting arrangements. 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 (see B and B: Family Law Reform Act1995).
The proposals
Under the August 1996 orders the father had contact each alternate weekend from 10 am Saturday until 5 pm Sunday, in addition to half school holidays. By consent in November 2004 the alternate weekend contact commenced from after school on Friday. One evening’s contact was also added – from after school to 7 pm one day each week, to be Wednesday in default of agreement.
The father now seeks to dispense with the evening contact. Instead he proposes a block period on alternate weekends from after school on Friday until Monday 7 pm, or Tuesday 7 pm if Monday is a public holiday. The mother wishes to continue the existing arrangements.
The principal disagreement in this matter is therefore narrow. The father wants Sunday night in his block contact on alternate weekends. The mother opposes this and instead offers one evening each week.
Change in circumstances
The current orders were made by consent on 19 August 1996.
As set out earlier where a party seeks to vary such final orders, the threshold test enunciated in Rice and Asplund and relevant later authorities must be met.
The father says that there are a number of matters that justify reopening the consent orders:
·the consent orders are over nine years old
·the children are much more mature, being fifteen and twelve
·there is evidence that they wish to spend more time with their father, although the mother disputes this
·RV now has casual after school work.
The mother does not oppose reopening the August 1996 contact orders. Indeed she seeks changes to them herself.
I am satisfied that taken collectively the changes are of sufficient significance to require reopening the contact orders. Furthermore, as will become obvious, I have reached the view that some changes need to be made in the children’s best interests. I should give effect to those changes (Bennett and Bennett (1991) FLC 92-191 at 78,262).
Change in contact
The father proposes that the children spend slightly greater time with him. Instead of two afternoons each fortnight, he would have one block weekend period extending for an additional 26 hours – until 7 pm on Monday instead of 5 pm on Sunday.
The father says that he has had greater contact than provided in the consent orders, in particular from about 18 months to two years after the consent orders until February 2004. The mother disputes this. She asserts that he missed contact on many occasions.
The father cared for CV for two block periods of 10 days in August 2003 and 15 days in February 2004. He also had her for some of the periods when she was absent from school in 2003 and 2004.
In February 2004 after the father approached Centrelink about financial assistance Centrelink apparently contacted the mother. Until then the mother was happy for the children to spend a greater amount of time with the father. Since then, apart from the changes made by consent in November 2004, the mother has refused any contact additional to that in the orders.
On occasion when the children have been ill, the mother has decided not to obtain assistance from the father. She has preferred to take leave herself, place CV in the carer’s room at work, have RV stay at home alone, have her mother care for the children or on one occasion have her sister in Sydney have CV stay.
The mother contends that the father’s application is motivated by financial gain: “he’s applying to look after them so he gets more child support”. The father similarly argues that the mother is motivated by financial considerations.
I accept that the father has had significant contact with the children. This is clear from the oral evidence of the mother.
RV is now 15 years old and CV 12. Their wishes are therefore of some importance. The father asserts that they want to spend more time with him. He says CV has asked whether she can live with him. The mother disputes this.
The Child and Family Counsellor, Mr Percival, reported in October 2004 that RV was unclear and imprecise on the form of contact he wished to have with his father. It seemed he would be satisfied with a more flexible arrangement and “he ‘thought’ that he would like to see his father for lengthier periods of time”. To Mr Percival he was reasonably comfortable with the current (October 2004) form of contact.
CV made it clear she would like to spend more time with her father. Her wishes “were expressed cautiously and appear to emerge from a desire to show loyalty to both parents.” Mr Percival was “not convinced that her comments were a direct result of her own thinking and suspect[s] that she is trying to be fair.”
In his updated report of August 2005 Mr Percival noted that RV appeared to show some ambivalence about the level of contact with his father. RV’s personal schedule, including his part time employment, seemed also to be impacting on his contact with his father. CV was not looking for any changes. This was of course after the November 2004 changes had been put in place. Mr Percival concluded that the arrangements operating at that time appear to serve the children’s needs and meet the wishes of each of them.
In oral evidence Mr Percival said:
·given RV’s age, he should be able to see either parent when he wished
·RV is concerned about how contact would impact on his work. He wants greater flexibility. He also wants to be loyal to both parents
·RV would go along with block contact if the Court ordered it. He did not object to it nor promote it
·the children are aware of the level of acrimony between the parents and are reluctant to rock the boat
·they probably would not mind having freer access to their father but they know that would be unpopular with their mother.
Mr Percival was clear that neither child was “rushing to … spend more time with their father”. Nevertheless the block arrangement proposed by the father would sit comfortably with them.
Both parents raised issues about the practicality of the current arrangements and those proposed. Of particular concern is RV’s part time employment which he commenced about the beginning of 2005. His mother says he usually works Tuesdays, Thursdays, Saturdays and Sundays. On occasions he may swap with a Wednesday. He gets his roster in advance, but she was uncertain how far in advance. The father finds that this complicates matters. Sometimes it means that midweek contact is very close to weekend contact.
On the other hand the mother is worried about the inconvenience of weekend contact being extended to Monday. The children would have to take additional school uniforms with them, and RV his work uniform. She also could not be sure that the father would ensure that homework was done.
Mr Percival noted the disturbing element of ill feeling between the parents. This has resulted in serious communication problems. It is apparent from the evidence that until the incident in February 2004 when the father contacted Centrelink the parents were able to speak directly to each other. Since that time all communication has been through the children. Consequently when CV broke her ankle her mother instructed her to tell her father. RV similarly advised his father when he was ill and required treatment by a medical practitioner.
Both parents complained about not being informed about various incidents and events of importance to the children’s lives.
The mother seeks to limit the amount of time the children have with the father “to protect the children from harm”. He is an unsuitable role model. She refers to the father’s smoking and unemployment. She does not want them to become welfare dependent. She objected to the father purchasing a bra for CV. She made certain allegations to Mr Percival but there is no evidence to substantiate them.
Other issues
A number of other issues were raised by the parties, most touching on the contact regime. These are addressed in my conclusions below.
The mother did not press orders she was seeking on the husband’s financial contributions. She has made no departure application, nor adduced all the relevant supporting financial evidence. Furthermore this issue was only raised at the last minute in her minute of orders sought.
Conclusions
As noted earlier s.65E requires the Court to treat the children’s best interests as the paramount consideration in parenting matters. The Court is then directed to the factors in s.68F(2) in determining those best interests. I have had regard to all these factors to the extent that they are relevant in reaching my conclusions below, even though they may not be specifically mentioned.
Having regard to all the evidence before me, and particularly those matters discussed above, I am satisfied on balance that the alternate week block contact proposed by the father is in the children’s best interests. In summary, my reasons are:
·the children are close to both parents but are encountering difficulties because of the high level of ill feeling between the parents
·I am satisfied that until February 2004 the children had more contact with the father than that set out in the August 1996 orders
·this contact was significant and included caring for them when they were ill and also some longer block contact
·the mother was happy for this to continue until an altercation in February 2004 concerning financial assistance
·although the children are “not rushing to spend more time with their father”, the children would be comfortable with the arrangements proposed
·this would be particularly so if it afforded greater flexibility
·frequency of contact is not so important for children of these ages as bonding is no longer an issue
·the prosed block contact would fit more conveniently with RV’s part time work and any after school activities that CV wishes to engage in
·involving one contact period each fortnight rather than three, it would reduce the need for direct communication between the parties
·this communication has been very acrimonious since February 2004
·a block arrangement will allow the father to participate more in the children’s lives and may allow him, for example, to have increased involvement with the two schools
·although there may be some increased inconvenience as suggested by the mother, for example in relation to uniforms, this will only be relatively minor
·I find unconvincing the mother’s claims that the children need to be protected from the father. After all, she is not opposed to overnight contact but just its length.
RV in particular expressed a desire for greater flexibility in contact arrangements. This was supported by Mr Percival. Both parties agreed to an order to facilitate additional contact with the father as well as for the children to return early from contact, if they wished.
The mother asks that changeover be by bus. The children are used to travelling by bus and the mother does not want the father coming to her home. However, I accept the father’s contention that this is impracticable. The children have certain belongings they need to take with them to the father’s and to return to the mother’s. Currently the father often drives by the mother’s home to allow the children to collect their belongings. The orders I propose are similar to the existing ones and will not allow the father to enter the mother’s residence.
I also propose that the father be given first option for care of the children when they are ill and the mother is unable to care for them. There is nothing in the evidence which suggests he is not capable of providing adequate care in these circumstances. Indeed he has done so in the past.
As discussed earlier communication between the parties has broken down since February 2004. A communication book should assist.
A number of subsidiary issues on which the parents reached agreement are also covered by the orders.
As noted earlier the parties’ relationship is acrimonious. This is making it very difficult for the children in their relationships with each of their parents. The children are aware of the dislike the parties have for one another. The continued hostility between the parties is not promoting the interests of the children. It seems that the parties do not want to reconcile their differences and improve their relationship as parents.
I agree with Mr Percival that the children would value a genuine attempt by the parents to address this acrimony and ill feeling. The parents should acknowledge that this is affecting the children. They must look beyond their own personal interests and to those of the two children. It could only be beneficial for the children if the parents were to realistically reassess their attitudes and approach and make the necessary changes.
In my view having regard to all the evidence before me the regime I propose is in the best interests of RV and CV.
Accordingly I make the orders set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 18 May 2006
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