W and B - [2003] FMCAfam 270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & B

[2003] FMCAfam 270

FAMILY LAW – Children – contact – orders – best interests of children – three children aged 8, 7 and 5 years.

Family Law Act 1975, ss.60B; 64B(1); 65E; 68B; 68F

McEnearney (1980) FLC 90-866

Applicant:

LMW

Respondent:

File No:

NCM 5333 of 2001

Delivered on:

11 July 2003

Delivered at:

Parramatta

Hearing date:

30 April 2002

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

All previous parenting orders are discharged.
The children MGB born 11 August 1994, ERB born 29 December 1995 and ACB born 24 September 1997 are to live and reside with the Applicant mother.
The Respondent father is to have contact with the said children as follows:
(a)Each alternate weekend during school term time from after school on Thursday afternoon until the start of school on the following Monday morning PROVIDED THAT the contact period will be extended to the start of school on the following Tuesday morning:
(i)if the Monday of the contact period is a public holiday; or
(ii)on the second contact period of each month;
(b)For half of each of the Autumn, Winter and Spring school holiday periods in each year as agreed between the parties but failing agreement the first half in odd numbered years and the second half in even numbered years;
(c)For a period of sixteen (16) days during the Christmas/January school holiday period in each year as agreed between the parties but failing agreement for the period commencing at 9.00 am on
1 January and concluding at 6.00 pm on 16 January of that year;
(d)From 10.00 am to 2.00 pm on Father’s Day in each year if that day does not fall on a day when the father would normally be entitled to contact under Order 2(a);
(e)On the father’s birthday and the birthdays of each of the children from 10.00 am to 2.00 pm if that day does not fall on a school day and from the end of school until 8.00 pm if that day falls on a day when the children are normally required to attend school;
(f)From 6.00 pm on Christmas Eve to 2.30 pm on Christmas Day in 2003 and each alternate year thereafter and from 2.30 pm on Christmas Day to 3.00 pm on Boxing Day in 2004 and each alternate year thereafter;
(g)Reasonable telephone contact at such times as the children or any of them shall request; and
(h)Such other times if any that the parties may agree.
Contact is to be suspended between the hours of 10.00 am and 2.00 pm on Mother’s Day and on each of the children’s birthdays if any of those days falls on a day when the father would normally be entitled to exercise contact under Order 2(a), 2(b) or 2(c).
For the purpose of exercising contact:
(a)in the case of contact pursuant to Order 2(a) the father or a responsible adult nominated by the father is to collect the children from school at the commencement of each contact period and return the children to school at the conclusion of each contact period;
(b)in the case of any contact that commences after school the father or a responsible adult nominated by the father shall collect the children from school;
(c)In the case of any contact that commences or concludes on a day when the children are not required to attend school the father is to collect the children from the mother’s residence and return the children to the mother’s residence.
For the purpose of exercising contact during the Autumn, Winter and Spring school holiday periods:
(a)Contact for the first half of the school holiday period will commence at 9.00 am on the day after school term concludes and will conclude at 6.00 p0m on the middle Saturday of the school holiday period;
(b)Contact for the second half of the school holiday period will commence at 6.00 pm on the middle Saturday and conclude at 6.00 pm on the day before the children are required to attend school at the beginning of the following term; and
(c)A pupil-free day on the first day of a school term is not a day when the children are required to attend school.
The mother is to authorise the Principal of any 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 notices normally forwarded to parents of children attending that school.
The mother is to authorise all medical practitioners and other health professionals who provide treatment to any of the children to provide all such information to the father about the health of the children and any treatment received as the father may reasonably request.
Each party shall advise the other as soon as is reasonably possible of any medical or other emergency affecting all or any of the said children.
The mother is restrained from telephoning the father except in the case of an emergency as set out in Order 9.
If either party is unable to care for all or any of the said children for more than two (2) consecutive nights at any time when the said child or children would normally be in the care of that party then the party who is unable to care for the said children is to offer to the other party the opportunity to assume the care of the said child or children for the period that he or she is unable to care for the said child or children.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

NCM 5333 of 2001

LMW

Applicant

And

Respondent

REASONS FOR JUDGMENT

Application

This is an application brought by the mother of three girls, MGB, aged 8 years, ERB, aged 7 years and ACB, who is 5 years of age, for orders to this effect:
a)That the children should reside with her and she should have the responsibility for their care, welfare and development; and
b)Orders defining the father’s contact with the girls.
The father filed a response seeking a shared parenting order in alternate weeks once the children are all attending school, defined contact orders and some injunctive orders, as follows:
a)placing an absolute ban on telephone contact; and
b)placing an absolute ban on the mother attending the father’s residence.

Background.

The parties were married on 16^th May 1987 at Holmesville, New South Wales. They separated on 19^th July 2000. A decree nisi dissolving the parties’ marriage became absolute on 23^rd February 2002.
There are three children of the marriage, MGB, who was born on 11^th August 1994, ERB, who was born on 29^th December 1997, and ACB, who was born on 24^th September 1997. The children currently reside with the mother. They currently all attend school.
The father has been having contact with the children but difficulties arose early in 2002. Communication between the parties seems to have taken place by means of a series of e-mails.
On 2^nd October 2002 the mother filed her Application. The matter first came before the Court on 20^th November 2002 and was adjourned to 20^th December 2002 for interim hearing. On 20^th December, Federal Magistrate Donald made a number of orders until further order.
The Orders until further order (section 64B(1)) made on 20^th December 2002 provided for the children to reside with the mother and the father to have contact as to include the following:
a)on alternate weekends from after school on Thursday to before school on Monday;
b)for half of the school holidays;
c)from 10.00 am to 4.00 pm on each of the children’s birthdays if on a school day or from 4.00 pm to 6.00 pm if the birthday fell on a school day;
d)from 10.00 to 4.00 pm on the Father’s birthday and on Father’s Day;
e)reasonable telephone contact;
f)particular arrangements for Christmas; and
g)a suspension of contact on Mother’s Day and the mother’s birthday.
The parties were directed to attend counselling. Since that time, they have conducted negotiations.
The matter came back to Court on 12^th March 2003 and was adjourned for directions, first to 9^th April and then to 30^th April 2003. On that occasion, they informed me that they had conducted some negotiations and had agreed on some issues, but there were still some matters to be resolved. The parties had decided that the children should reside with the mother, but they wanted to put a proper and reasonable scheme of contact into place.

Principles to be applied in contact proceedings

A court exercising jurisdiction under the Family Law Act 1975 must bear certain matters in mind when dealing with residence and contact applications. Section 60B of the Act states that the object of Part VII of the Act 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.”
Section 65E of the Act makes it clear that the Court must regard the best interests of the child as the paramount consideration when deciding whether to make a particular parenting order. A consideration of the factors in section 68F(2) will help the Court to arrive at this decision.
Section 68F(2) provides for a number of matters that the Court should consider in order to ascertain what is in children’s best interests. Not all of them will be relevant in every case, but the Court must give consideration to them, as I have done in this case.

Conclusions

There is no evidence before me as to the wishes of the children

(section 68F(2)(a)), nor is there any evidence about the nature of the children’s relationship with their parents (section 68F(2)(b)). I take it that each parent has a good relationship with each of the children and that the children want to spend quality time with each parent.
The parties do not propose any significant changes to the children’s circumstances (section 68F(2)(c)). There are no practical difficulties involved in the children having contact with their parents. The parties live in the same suburb, and the proposed contact changeover point for contact during school term time is the children’s school.
There is no evidence before me to suggest that either parent lacks the capacity to provide for the children’s needs, including their emotional and intellectual needs (see section 68F(2)(e)).
Sub-section 68F(2)(f) requires the Court to consider each child’s “maturity, sex and background” and any other relevant characteristics. The three children are little girls aged 8, 7 and 5 years. They are from an Australian background and have apparently lived in Australia all their lives.
There are no issues of physical or psychological harm, no issues of family violence have been raised and there is no evidence of any Apprehended Violence Order in force (sections 68F(2)(g) to (j)).
Sub-section 68F(2)(k) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings” in relation to these children. I am mindful of the decision of Nygh J in McEnearney (1980) FLC 90-866 at 75,499, where he held that the principle that there should be an end to litigation has force in custodial disputes. There can be no definitive or immutable contact order where the children concerned over a decade to go before they reach adulthood, but parents should be reluctant to resort to court proceedings too readily. The Court must look at the need for the children to have flexible arrangement so that they can be comfortable with each parent.
With these matters in mind, I note that the parties wish to depart from what has been seen as the “traditional” contact arrangement of one parent having contact for 48 hours every fortnight. There is clearly still a degree of animosity between them, as witness the father’s request for injunctive orders about telephone contact between the parents and an outright ban on the mother coming to the father’s residence.
The parents want an arrangement where the children spend a period of time one fortnight from after school on Thursday to the start of school on Monday morning, and the other fortnight for an extra day, until the Tuesday morning. In this way, they would spend four nights with their father one fortnight and five nights the next. The advantage of this is that the father has the opportunity to take them to school and collect them from school, allowing him to be more involved in the children’s schooling. It also seems to offer the parties an opportunity to avoid meeting each other more than they need to, which may reduce the likelihood of unpleasantness at contact changeover. It would appear to me that provision should be made for public holiday Mondays when they occur, and I consider that the children should spend that day with their father if the public holiday falls on a weekend when they would normally be with their father, even if it transpires that they spend the occasional extra Monday with their father in a particular month.
One matter that causes me some concern is the father’s request for an injunctive order “Mother not to contact father by phone.” This order is set out in a Minute of proposed orders submitted by the father. The mother has submitted her own such Minute of Orders, and I have adopted those orders that are uncontroversial from both documents.
The Court has power under section 68B of the Family Law Act to grant an injunction for the personal protection of a child or a parent of the child, or restraining a person from entering or remaining in a parent’s place of residence. I note that the father no longer seeks an order of that nature.
It would appear to me that the Court does have the power to grant an injunction restraining a party from telephoning the other party, and I note that the mother actually consents to such an order in her minute of proposed orders. The power to make such an order is subject to the proviso that the order or injunction should be as the Court “considers appropriate for the welfare of the child” (see section 68B(1)).
Notwithstanding the mother’s consent, I am not satisfied that an injunction of that nature in absolute terms is appropriate for the welfare of the children. No matter how great the father’s opposition to the concept of the mother telephoning may be, there could arise a situation where there is an emergency affecting one or other of the children, where the father would expect to be informed as soon as possible. In such cases, e-mail or other means would not be sufficient.
The type of emergency I have in mind would be in the nature of a medical emergency, which I define as:
a)a serious injury involving a child; or
b)a serious illness involving a child.
There are other emergencies involving children, which it has been my misfortune to consider during my time on the Bench. Examples of non-medical emergencies concerning a child would be:
a)where the child becomes the victim of a crime; or
b)where the child is missing.
I need hardly add that the death of a child would be regarded as an emergency concerning the child which the other parent would wish to know about as soon as possible.
It is for these reasons that I propose to order that each party shall advise the other as soon as is reasonably possible of any medical or other emergency affecting all or any of the children. I also propose to grant an injunction restraining the mother from telephoning the father except in the case of such an emergency.
I make the orders as set out at the commencement of this judgment.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 10 July 2003