W and G - [2000] FMCAfam 30

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & G

[2000] FMCA fam 30

PARENTING ORDERS – Section 68F child’s best interests

Applicant:

P M W

Respondent:

B T G

File No:

ZP 985 of 2000

Delivered on:

8 September 2000

Delivered at:

Parramatta

Hearing Date:

24 & 25 August 2000

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr Shaw

Solicitors for the Applicant:

H M Symonds & Britten, Solicitors,
DX 8211, Parramatta

The Respondent in person

ORDERS

That the Father’s application for residence of P W born 27 March 1993 be dismissed.
That Orders number 1, 2 and 3 (insofar as this order relates to the Father) made 29 July 1999 be discharged.
That the Applicant Father have contact with the child, P W born
27 March 1993 as follows:
(a)For a period of the New South Wales June/July school holidays each year commencing on the first Sunday of the holiday and concluding on the Thursday week thereafter;
(b)From 26 December 2000 until 20 January 2001;
(c)From 23 December 2001 until 18 January 2002;
(d)Thereafter in even numbered years as set out in paragraph
3.2 above and in odd numbered years as set out in 3.3 above.
That for the purpose of Order 3 above, the Father shall cause the child to be collected by Mrs H C from the Mother’s residence at 12 noon on that date on which contact commences and he shall be placed on a direct flight to Launceston, travelling as an unaccompanied minor, and shall be collected by the Father at Launceston terminal. At the conclusion of each contact visit, the child shall be returned to the Mother no later than 5.00 pm.
That the Applicant Father shall have telephone contact with the child as follows:
(a)On 27 March each year between 4.00 pm and 4.30 pm;
(b)On Father’s Day in each year between 6.00 pm and 6.30 pm;
(c)On the Applicant Father’s birthday (in the event of the child not being in the care of the Father on that day).
That the telephone contact referred to in these Orders shall be implemented by the Father telephoning the child’s home.
That the Mother forthwith sign such authorities and documents as may be necessary with the child’s school such that:
(a)The Father can receive a duplicate copy of any of the child’s school reports;
(b)The Father can order and receive copies of the child’s annual school photograph.
That both parties give each other not less than twenty one (21) days notice of their intention to change address.
That both parties inform the other in writing of any serious illness that the child is suffering or accidents requiring medical attention that occurred during the time the child was in that parent’s care.

IT IS FURTHER ORDERED BY CONSENT

That both parties forthwith enrol with the “Keeping Contact” parenting program organised by UNIFAM and participate in the parenting program for its duration.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 985 of 2000

P M W

Applicant

And

B T G

Respondent

REASONS FOR JUDGMENT

Application

These proceedings are for parenting orders, being residence and contact orders relating to P W born 27 March 1993 (Hereafter referred to as P W).
The respondent father (Hereafter referred to as “the Father”) filed an Application for Final Orders on 16 June 1999. His application was filed in the Family Court at Parramatta. On 23 May 2000, the Father filed an amended Application. In this application the Father sought orders that:
(1)That the child, P W born 27 March 1993 reside with the Applicant Father.
(2)That the Respondent Mother have reasonable contact with the said child.
The Respondent Mother (Hereafter referred to as the Mother) filed a Response to the Father’s initiating application on 15 July 2000. She filed an amended Response on 7 June 2000, which document identified the orders sought by the Mother at trial. The orders she sought were:
(1)That the said child, P W born 27 March 1993 reside with the Respondent Mother.
(2)That the Applicant Father, have reasonable contact.
On 24 August 2000, the proceedings were transferred to the Federal Magistrate’s Court for hearing.
During the course of the proceedings, the Applicant Father further particularised the contact and specific issue orders he sought in the event that he was unsuccessful in his primary application for residence. These orders are contained in Exhibit ‘AF8’ and are as follows:

Contact orders

(1)That the Applicant Father have contact with the child, P W born 27 March 1993 defined as follows:
(a)For a period in the New South Wales June/July school holidays each year commencing on the second day of such holidays and concluding on the second last day of the said holidays;
(b)From Boxing Day in the year 2000 until a day not later than three days prior to the commencement of the New South Wales school term in the year 2001;
(c)In the year 2001 a block period of contact commencing on 23 December and concluding on 23 January 2002;
(d)Thereafter in even numbered years as set out in 1.2 above and in odd numbered years as set out in 1.3 above;
(e)The contact hereinbefore referred to shall be implemented by the paternal grandmother, H C, collecting the child from the mother’s residence at 12 noon on the date on which contact commences and taking him to Sydney Domestic Air Terminal to board a direct flight to Launceston and collecting P W at the conclusion of each contact at Sydney Domestic Air Terminal at the conclusion of such contact;
(f)That the Applicant Father have telephone contact with the child, P W, as set out hereunder:
(i)On 27 March each year being the child’s birthday between 4.00 PM and 5.00 PM;
(ii)On Father’s Day in each year;
(iii)On the Applicant Father’s birthday (in the event of the child not being in the father’s care on that particular day);

(g)The telephone contact referred to in 1.6.2 and 1.6.3 shall be facilitated by the mother arranging for the child to phone the father between 9.00 AM and 11.00 AM on each relevant day.

Specific issue orders

(2)That the Respondent Mother make available to the Applicant Father at his expense, copies of the following:
(a)P W’s school reports;
(b)P W’s yearly school photograph; and
(c)The said reports and photographs will be made available to the Applicant Father within 14 days of becoming available to the Respondent Mother.

(3)That the Respondent Mother keep the father informed in writing of any change in her residence by giving him not less than 21 days’ notice of her intention to move from any particular residence she is occupying at that point in time.
(4)That the Mother keep the Father informed in writing of any serious illnesses from which the child, P, is suffering or any accidents requiring medical attention.
(5)That the Respondent Mother keep the applicant father informed in writing as to any medication the child needs to have or take during periods of contact and will make such medication as has been already prescribed and purchased available to the Father at the commencement of such periods of contact and if such medication is not available, provide the Father with a copy of any relevant prescription for such medication.

Background history

The Mother was born on 1 November 1965 and is now aged 34 years. The Father was born on 14 January 1967 and is now aged 33 years. On 14 September 1991, the parties married. They are divorced although the details of the dissolution of their marriage were not in evidence.
There is one child of the marriage; P W was born on 27 March 1993, now aged 7 years and 5 months. He was the only child of the marriage of these parties. The Mother had two children by a previous relationship: J W born 5 June 1995, now aged 15 years and W W born 3 March 1987, now aged 13 years. They were treated as members of the parties’ household throughout cohabitation and P W grew up as a younger sibling to those older children.
Subsequent to these parties’ separation, the Mother has borne another child, O H, born 10 June 1999. O H’s father is P H.
The Father has re-partnered and is married to C E W. They married on 10 October 1998. They have one child, C W, who was born on

23 February 2000.
The parties separated on 26 January 1997 when the Father left the matrimonial home. The decision to separate was his alone. This unilateral decision greatly distressed the Mother. Shortly after separation, the Father met his current wife, C E W. He exercised contact to the subject child, J W and W W. The Father then decided to travel to Byron Bay for a jazz festival and sought the Mother’s consent to take P W with him. P W had just turned four. The Mother withheld her consent and the Father went to Byron Bay without the child.
Upon his return to Penrith, the Father resumed contact to the children. He then decided to travel to South Australia and again sought the Mother’s consent to P W travelling with him. C E W joined the Father on this journey. Again, the Mother withheld her consent. On 1 July 1996, the Father and C E W left Penrith for Golden Valley near Deloraine, Tasmania. This is the region where C E W lived and where her family still resides. Shortly thereafter, the Father decided that he would make this region of Tasmania his permanent home.
After separation, the Mother and children continued to live at 220 Y Road, S P. P W was not yet old enough to attend school and in the year following separation, was cared for exclusively by the Mother.
On 14 November 1997, the Mother filed an application in which she sought orders that the child reside with her. This application was filed in the Local Court at Penrith. In his Response filed 18 December 1997, the Father also sought an order for residence and that the child have contact with the Mother. On that day, the Magistrate ordered that the Mother have continuous contact with the child save for the following:
(1)
The Father have contact between 10 January 1998 and

20 January 1998 to be exercised in the State of Tasmania.
(2)The Father have telephone contact each Sunday evening between 6.00 PM and 7.00 PM
(3)For the purpose of 1A. The Father or his nominee provide to the Mother a copy of the return ticket of P W on or before 3 January 1998. For the purposes of 1A, the paternal grandmother, H C collect the child at 2 P Place, S P at 9.00 am on 10 January 1998 and return the child to the child’s Mother’s home within two (2) hours of the return flight on 20 January 1998.
The Magistrate further restrained the parties from discussing the outstanding issue of residence with the child and restrained each party from denigrating the other to the child. The parenting proceedings were then transferred to the Family Court at Parramatta.
The Mother lodged an appeal seeking to review the contact order made by the Magistrate at Penrith. Her appeal was heard and determined by His Honour Justice Rourke on 8 January 1998. As a consequence of the failure of the appeal, the child travelled to Tasmania for the first extended period of contact subsequent to the parties’ separation.
Although there were no orders that required her to do so, the Mother facilitated contact by the child to the Father in Tasmania on a continuing basis. In July 1998, P W and his brother, W W, went to Tasmania during the July school holidays. In October1998, the paternal grandmother accompanied P W to Tasmania on the occasion of the Father’s marriage to C E W.
On 26 December 1998, the maternal grandmother delivered P W to Sydney airport at the commencement of a four (4) week contact visit that took place in Tasmania. This was the first occasion on which P W travelled unaccompanied between Sydney and Launceston. He was nearly six (6) years old.
A Family Report was ordered which report was prepared for the hearing of the contested residence proceedings listed to begin on

8 March 1999. Counsellor, G P, completed the report, which report is dated 4 March 1999. This report was received into evidence in these proceedings. Counsellor G P spoke with the Father on 9 February 1999. During the conversation he confirmed his desire to have the child reside with him. However, on 22 February 1998, the Father’s then solicitor advised the Court Counsellor that the Father would be filing a Notice of Discontinuance. The Counsellor had already scheduled and completed interviews with the Mother, her elder children and the subject child. As his solicitor had indicated would be the case, on 26 February 1999, the Father filed a Notice of Discontinuance of his residence application filed 18 December 1997.
Thus, the Mother’s application for residence proceeded to hearing undefended. Justice Rourke heard the application on 8 March 1999 and that day relevantly ordered:
(1)P W born 27 March 1993 is to reside with the Applicant Wife.
(2)The Wife is to have sole responsibility for the day to day care, welfare and development of that child.
(3)The Husband is to have reasonable contact with that child.
Some time shortly prior to June 1999, and without prior notice to the Mother, the Father travelled to Sydney to have holiday contact with the child. His arrival coincided with the birth of the Mother’s third son, O.
The Father’s evidence is that on arrival he contacted the Mother and she not only refused him contact to the child, but also indicated that there would be no future contact for the Father or his mother, H C. The Mother denies the conversation attributed to her.
It is the Mother’s refusal of contact, the Father alleges, which is the catalyst for this application. Thus, on 16 June 1999, the Father and his mother jointly applied for contact orders. The Father sought contact for the immediate period 3 July 1999 through to 11 July 1999 inclusive and subsequent periods of block school holiday contact to be exercised either in New South Wales or Tasmania. For her part, the paternal grandmother sought alternate weekend contact and school holiday contact. When this application was filed, O H was six (6) days old. In her Response filed 15 July 1999, the Mother concedes contact for the paternal grandmother one weekend per month, and block periods of contact to the Father during the January and one June school holiday.
The Father and maternal grandmother’s application was the subject of Consent Orders entered 2 July 1999. These interim orders provided “That the First Applicant (the Father) have contact with the child, P W, born 27 March 1993 from 9.00 am, Saturday, 3 July 1999 to 5.00 PM, Tuesday, 6 July 1999 with the Father to collect the said child from the Mother’s residence at the commencement of contact and return the child to the Mother at the conclusion of contact”. The proceedings were then adjourned to 29 July 2000.

Interim order

Accordingly, the proceedings again came before the Court on 29 July 2000. They were not concluded that day and orders were made after a partially defended hearing on 30 July 2000. These orders provided, pending further order:
(1)That the Applicant Father have contact with the child, P W , born 27 march 1993 defined as follows:
(a)On Boxing Day 1999 from 9.00 am to 5.00 PM;
(b)From 3 to 18 January 2000 inclusive;
(c)For a period of 10 days in the June/July school holidays each year commencing on the second day of the school holidays and concluding on the Wednesday week thereafter;
(d)On Boxing Day in the year 2000 from 9.00 am to 5.00 PM and pending further order of the Court for each Boxing Day thereafter;
(e)
In the year 2001 for the Christmas school holidays a block period of contact commencing on 3 and concluding on

18 January 2001 and thereafter until further order of the Court from 3 to 18 January each year.
(2)That the Respondent Mother make available to the Applicant Father copies of each of the child’s school reports and his yearly photograph.
(3)That the Applicant Father and the Applicant Paternal Grandmother have telephone contact with the said child on 27 March 2000 being the child’s birthday and each 27 March thereafter.
(4)That the Applicant Father have contact with the said child on the weekend from 5.00 PM on Friday, 30 July 1999 to 5.00 PM on Sunday, 1 August 1999 save for the period between 3.00 PM on Saturday, 31 July until 10.00 am on Sunday, 1 August 1999: the Father shall return the child, P W, to the Respondent Mother at 3.00 PM on Saturday, 31 July 1999 and collect the child from the Respondent Mother at 10.00 am on Sunday, 1 August 1999.
(5)That the Applicant Father have contact with the child from 5.00 PM on Friday, 6 August to 5.00 PM on Sunday, 8 August 1999.
(6)That the Applicant Paternal Grandmother have contact with the child, P W, for one weekend from 5.00 PM Friday, to 5.00 PM Sunday each four (4) weeks together with one Saturday each four (4) weeks from 9.00 am to 5.00 PM.
(7)That the Applicant Paternal Grandmother have contact with the child, P W for four (4) days during the Easter school holidays and the September/October school holidays respectively and in the event of that four (4) days coinciding with a contact weekend for the Applicant Paternal Grandmother then the said four (4) days shall be in addition to the said weekend contact.
Contact between P W and the paternal grandmother proceeded in accordance with the interim orders until 24 September 1999. On that day, the paternal grandparents attended to collect the child for the commencement of weekend and, they anticipated, a period of school holiday contact. Unfortunately, for P W, there is no spoken communication between his paternal grandmother and the Mother. Both women are comfortable with this scenario and, indeed, it is their preference. P W had been prepared for contact and when he was being placed in his grandmother’s car, she spoke to the Mother indicating that the child would be returned six (6) days later on

30 September 2000. Although the interim orders provided otherwise, the Mother was anticipating a period of only weekend contact. There then ensued what can only be described as a tug-of-war in which possession of the child was the aim. This incident reflects extremely poorly on all of the adults involved. They are the Mother, the paternal grandmother and paternal grandfather. Not surprisingly, the child was distressed and crying. The Mother, helped by his sister, J, pulled him from the car. O H’s Father, P H, witnessed this sorry scene but properly did not become involved.
As a consequence of her failure to secure holiday contact, the paternal grandmother commenced proceedings alleging contravention of the contact order. The grandmother and mother compromised the proceedings and they were discontinued. The Mother provided make up contact for the period that had been withheld.
In May 2000, it would seem without further incident, the Father amended his application to include an order for residence of the child. In final submissions, Counsel for the Father indicated that the application for residence was “only faintly pressed”. It is difficult to understand what this phrase was meant to indicate.
I have determined the residence application in accordance with the relevant law on its merits.
Approximately two and a half months prior to the hearing, the Father, his wife and CW travelled to Sydney. The Father came up to take up an employment opportunity and to prepare for this hearing. Fortunately, he has obtained work and is employed by the O R Transport Authority. His employment will continue until November 2000. He has thus been able to exercise alternate weekend contact to the child.
During the second day of the hearing, the parties reached agreement as to the future contact between the maternal grandmother and the child. The Court was asked to enter orders by consent and the following orders were made on 25 August 2000:
(1)That the interim orders made by Registrar Gersbach on 30 July 1999 are hereby confirmed as final orders as between the paternal grandmother, H C, and the Respondent Mother.
(2)That in addition to the said Orders, an Order that the Respondent Mother notify the Paternal Grandmother as soon as possible after the Respondent Mother becomes aware of the date fixed by P W's school as "Grandparents' Day" to enable the Paternal Grandmother and her husband to attend Grandparents' Day.

Issues before the court

These issues appear to be:
b)Whether there has been a substantial change in circumstances since the residence order was made in March 1999;
c)The Mother’s attitude to the child’s relationship with his Father and family;
d)The child’s wishes;
e)The effect on the child of a separation from his siblings;
f)The Father’s attitude to the responsibility of parenting.

The father’s current circumstances

The Father lives in a family unit that comprises himself, his wife, C E W, and their baby son, C W. They live in a rural community at J M, west of D. The property is rented by them, for which they pay $45.00 each week. The Father is self-employed, working as a car detailer in his small business in D. He has closed the business and is currently working in Sydney with ORTA. He and his family unit are living with his mother at her home at 21 H Rd, T. He plans to return to the J M property in about November 2000.

The father’s proposals

The Father seeks to have P W reside with him and have reasonable contact with the Mother. This contact would involve block periods of time during school holidays in Penrith and time in Tasmania should the Mother be able to afford to visit. In the immediate future, the child would reside with the Father at Tregear probably necessitating Mrs C E W and C W returning early to J M. In November, when the Father returned to Tasmania, the child would live at J M. The Father gave evidence that he may make arrangements that involve renting property in D and the family splitting their time in D and J M. P W would be enrolled at M Primary School which school is located about 10 kilometres from J M. The child would spend some block periods of contact with the paternal grandmother. This would be achieved by the child spending one week with his mother during non-Christmas school holidays and one week with his paternal grandmother and the further sharing of contact to take place during Christmas school holidays.

The mother’s current circumstances

The Mother lives in rented premises at 52 J Road, K. Her family unit comprises her elder daughter, J W, W W, P W and O H. The Mother and her family unit have lived in these premises for two and a half years and it is her intention that they will continue to do so. At separation, the Mother retained the majority of the household items and furniture and the paternal grandmother has purchased a car for her. The Mother has a close personal relationship with P H. P H lives nearby and is at the Mother’s home four or five nights per week. He is employed as a refractory bricklayer working at BHP, R H. The Mother is in receipt of Social Security benefits, comprising a Supporting Parent’s Benefit and Family Allowance. She receives the meagre sum of $21.67 child support from the Father. Neither J W nor W W has contact with their father, D P. I am satisfied that this is D P’s wish. P W attends P S Public School and is in second class. This is the school he has always attended. His end of year, 1999, school report and a bundle of his work comprise Exhibit ‘RM1’.
The Mother is one of nine children and hers is a large supportive Catholic family. Many of her siblings live nearby and the child has aunts, uncles and cousins with whom he is intimately and frequently involved.

The mother’s proposals

In her amended Response, the Mother proposed orders the effect of which would be to maintain the existing arrangements. P W would continue to live with her and have reasonable contact with his father. This contact would occur during school holidays, for about fifteen (15) days’ duration during Christmas and on one additional period of block contact in Tasmania. She indicated a flexible approach to contact whilst the Father remained in Sydney.

Relevant law

Residence, contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that 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 deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections 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. B and B: Family Law Reform Act (1997) FLC 92-755.
When there are force final orders parenting orders, an applicant must demonstrate that there exists a substantial change in circumstances subsequent to the making of those orders. This principle has been consistently stated in the authorities. Rice and Asplund (1979) FLC 90-725, D and Y (1995) FLC 92-581. This is a preliminary issue that may be determined as a threshold matter or at the conclusion of the hearing. Bennett and Bennett (1991) FLC 92-191.

Section 68F(2) — determining the child’s best interests

The child’s wishes

Both parents confidently assert that the child wishes to reside with them.
During periods of contact, the child has told the Father that he wanted to live with him. Prior to January 1998, the child asked the Mother whether he could live with the Father. Similar sentiments of not wanting to leave have been expressed by the child to the paternal grandmother whilst the child has been enjoying contact with her. The Mother is concerned that during contact visits both the Father and his mother question P W about his preferences vis residence and I am satisfied that they do. The Mother properly placed the child’s expression of wishes as reported by the Father and paternal grandmother into context. In her letter of
19 May 2000, Exhibit ‘AF4’, addressed to the paternal grandmother she wrote, “I think it’s wonderful – spoil all you want – it does make P W feel very special. But we must get this into perspective, he is 7 years old – having a wonderful time with the Nanna he loves – of course when it HAS to end he is going to grumble about it”.
Counsellor Passier in her first report explored the child’s perception of family using drawing. The child did not include his father in his picture of his family. In a guided fantasy game, P W chose his mother as the first person he would select to take with him to an island. He did not identify his father as a person he would take. The Counsellor identified that the child wanted regular contact with his father. In her second report, when P W was aged 7 years and 4 months, during the first interview Counsellor Passier reports that P W said, “I know why I’m here. Because my dad wants me to come and live with him. I’d live there for a couple of years.” During this interview the child acknowledged that he missed his father and that he would also miss his mother if he were to live with his father. He was confident that his father would let him return to live with his mother should he so desire.
Counsellor Passier interviewed the child again, after he had returned from contact to his mother and siblings. On this occasion, the child expressed a clear wish to live with his mother.
In her oral evidence, Counsellor Passier concluded that the child feels torn between his parents. I am satisfied that the child is attached to his mother and father and feels dearly loved by them. He does not have a clear preference for one parent rather than the other. The repeated questioning by his father has resulted in a forced choice by the child and I am satisfied having seen the father’s insistent manner demonstrated in the witness box, that it would be difficult for a child of P W’s age to refuse him. I am satisfied that Counsellor Passier’s conclusions accurately reflect P W’s position and I find that he has not expressed a wish that I take into account. As set out in the balance of my judgment, there are other matters relating to P W’s best interests, which I find more compelling in determining the issue of his residence.

The nature of the child’s relationship with each of the parents and other persons

Either party does not dispute that P W has a loving relationship with each parent. He has lived with his mother all of his life and she has been his prime care-giver. In her first report, Counsellor Passier observed P W to “interact well with his mother and half siblings”. More recently, after an observation session, Counsellor Passier concluded, “P W was observed to have a warm and close relationship with his mother, his brothers and Mr Hamill”. The father acknowledges the child’s need to spend time with is mother and half siblings, J and W. He did not acknowledge in his affidavit the child’s relationship with his younger brother O. Yet I am satisfied on the evidence, that the child has a very close relationship with O and that separation from O would be distressing for him. P W’s 1999 school report discloses a child who mixes well with other children and actively participates in the classroom. I am satisfied that the relationships he has established in his school environment are age appropriate and well settled.
The Mother’s home, by comparison to the Father’s, comprises more children and having seen the Mother, is boisterous and outgoing. He is part of a larger family with whom I am satisfied he has good relationships that he would miss if he were to relocate to Tasmania. O H’s father, P H gave evidence. He spoke in warm and friendly tones of P W. P W seeks Mr H out for quiet conversations and man to man talk. This relationship is a valuable relationship for P W. P W has reported to his father that Mr P H is nice to him. Rather than accept this at its face value, the Father placed a sinister interpretation on this childish expression of kindness and inferred that Mr P H represented a risk of sexual abuse to the child. Whilst I accept the Father’s childhood experiences give him a heightened sensitivity to the risk of child sexual abuse, the remarks made to Counsellor Passier were unreasonable and intemperate. I find that there is no basis for the Father’s assertion that Mr H presents any risk to the child.
The Father’s relationship with the child is also a close and loving one. It has developed in two stages. The first stage occurred whilst the Father remained part of his daily life and the second subsequent to separation. It was the Father’s decision to live in Tasmania, the effect of which was to put in place a barrier to regular and substantial contact. Mrs C E W spoke of the clinging nature of the child’s dealings with the Father when exercising contact. He craves one to one attention with the Father. I am satisfied that the child misses the Father and that the unfortunate consequence of distance and limited money has meant that the child has not had the opportunity to develop with the Father a relationship that is qualitatively as secure and reliable as he has with the Mother.
Similarly, P W has not had the opportunity to develop with Mrs C E W nor C W any deep attachment. When giving evidence, Mrs C E W appeared uncomfortable speaking of P W and is clearly worried about the effect his arrival in her home would have upon her and C W. I am not satisfied that Mrs C E W enjoys a close relationship with P W. Her priorities are directed more to her own son and, although I am satisfied that she has a warm and sensitive nature she has not yet been able to establish a close attachment to the child.
The paternal grandmother has an appropriately warm relationship with the child. The orders that have now been made by consent will provide the structure for that relationship to be maintained. P W would dearly miss his paternal grandmother and ironically, it is the Father’s proposal that would reduce the nature of their contact. Remaining living with his mother maximises this relationship rather than diminishes it.

The likely effect of any changes in the children’s circumstances

This is a critical issue in these proceedings. This child has an established routine of life. He has lived all of his life with his mother and his half siblings, excluding C W. No meaningful criticism is made by the father of the child’s attendance at school nor was there any evidence before the Court that indicated that the child had difficulties in his peer relationship or socialisation skills. Although Mrs C E W gave evidence of the child lying and of mischievous behaviour, this behaviour was within normal parameters for a child P W’s age and is not suggestive of problems in his current environment. Rather the concerns reflected inexperience in Mrs C E W in her dealings with boisterous boys.
If the Father were to succeed in his application, the child would have the opportunity to enjoy a different style of life. I am satisfied that P W enjoys the physical surroundings offered by the Father in Tasmania and that he enjoys the individual attention that has been available to him prior to C W’s birth. These are all advantages for P W. They do not, however, outweigh the disadvantage of enormous loss that I am satisfied that P W would suffer were he to leave the Mother’s home.

The practical difficulty and expense associated with contact.

This is an issue of critical importance in these proceedings. The Father now resides near D and intends to continue to do so. The Mother resides in K in the western suburbs of Sydney and intends to continue to do so. The distances between the two homes are great and it is agreed that travel for contact must be undertaken by aeroplane. Both parties have modest means and I am satisfied that face to face contact cannot occur more frequently than twice each year. P W is able travel as an unaccompanied minor and while this minimises the cost for these parties it remains substantial. Thus such contact as is ordered must maximise the benefit of each trip, lasting for as long as is reasonable. The duration of contact must also be balanced with the child’s need to enjoy time in his home.

The parents capacity to meet the child’s needs

Counsellor Passier concluded that both parties are committed and capable parents. I agree with her assessment. The Father and his mother criticised the standard of cleanliness evident in the child’s clothes and his personal hygiene. Both contended that the Mother’s parenting was deficient in this regard. This was denied by the Mother and was an allegation she found distressing. Too much time was taken up challenging the Mother about supplying an item of damp clothing and the child’s dental hygiene. These and the other “cleanliness” issues raised in the Father’s case had never been raised previously with the Mother. Had they been matters of significant concern I am satisfied that they would have been. All the adults who gave evidence were impeccably presented and I am satisfied that the standard of physical care offered in both homes is appropriate.
The child’s intellectual needs will be well addressed in both homes. The Father is more keenly interested in the child’s education than is the Mother. However she is not uninterested. Her approach to his intellectual needs is completely appropriate having regard to his age and regular attendance at school. The Mother is a relaxed and experienced parent. By comparison, the Father presented as demanding in his approach to parenting and his criticisms of the Mother reflect his different perspective rather than objective facts. At this stage of the child’s life, if unchecked, his approach could become oppressive and diminish the obvious pleasure the child receives during contact from learning from the father.

The children’s maturity, sex and background

The child is seven years old and has age appropriate maturity. With the exception of choosing between his parents, he can make sensible decisions and is a child who is achieving adequately educationally. This is reflected in his school material.

Protection of the child.

I have already made findings concerning P W and the risk of abuse. The evidence concerning W W and the beanbag was intended to convey risk and inadequate parenting. I do not accept this. I am satisfied that the child and W engage in boisterous play that is completely appropriate and that this evidence corroborates rather than diminishes the picture I have of a happy home.
This issue does not otherwise arise.

The attitude to the child and to the responsibilities of parenting

There is considerable overlap with findings I have already made in this judgment and I will not duplicate them. Both parents are strongly committed to their son and wish to be responsible parents. I am satisfied that both are good parents. However during the course of separation each have demonstrated attitudes that reflect poorly on their attitudes to the child and to the role of the other parent. This later issue is but one indicia of responsible parenting.
Firstly, the Mother I am satisfied has behaved at contact hand over in an angry and offensive manner towards the Father. This has occurred in the presence of the child and must have been distressing for him. She has been deeply hurt by the failure of her marriage, both for herself and her children. Her distress has been such that she has not properly managed dealing with the Father and has taken the opportunity to vent her distress when it arose.
Although the Mother denies the angry and insulting remarks attributed to her by the Father, his wife and mother, I am satisfied that on this issue I should prefer their evidence. The Mother demonstrated that she is a woman who is quick witted and quick tempered. At the conclusion of the hearing I was satisfied that the Mother has insight into the effect of her behaviour on the child. She agreed to participate in a relevant parenting course for the purpose of improving her conduct.
Next I am satisfied that the Mother refused the Father’s request for contact in June 1999. In circumstances where the child’s opportunity for contact arise so rarely this consent was unreasonably withheld and corroborates the Father’s concern for his relationship with the child. The Mother’s attitudes have improved substantially and she has consistently facilitated contact since the interim orders were entered. I agree with the submission made by counsel for the Father, that but for these proceedings the Father and his mother would not have secured the Mother’s compliance with regular contact on reasonable terms.
Similarly there are deficiencies in the Father’s attitudes. He pays minimal child support even though he is now in full time employment. He explained that he complies with the law, his child support assessment, and that next year the child will receive the benefits of his increased income. That is not necessarily the case and ignores the fact that the Mother has very limited means and that the child would immediately benefit from his fathers financial support. I am satisfied that the Father has demonstrated a cavalier approach to his financial responsibilities and unless forced will not contribute to the support of his son.

When he decided to move to live in Tasmania the Father placed his own needs above his sons. He knew that he was putting in place a barrier that would restrict the child’s opportunity for regular contact and that the costs of any contact would reduce his capacity to help the child financially. It also meant that the burden of parenting would fall almost exclusively on the Mother. That she readily accepts this responsibility does not relieve the Father of his.
The terms of the Father’s application demonstrate that he has little appreciation of the importance of the child’s Mother and siblings in his life. He paid only scant regard to the depth of loss this child will feel if removed from the people with whom he has lived all of his life. Similarly he had no insight into the effect on the Mother of continuing residence proceedings on two occasions, one which he abandoned at the last moment and these which he pressed only faintly. In final submissions Counsel for the Father inferred that the Father would again return to court, I inferred for residence, if there were any problems with contact. On this occasion he has, by the slimmest margin, satisfied the Rice and Asplund threshold test and any further application will receive close scrutiny. This heavy handed approach that I am satisfied reflects his determination to always have his own way demonstrates that his attitude to the Mother is a poor one and that he too must participate in post separation parenting counselling.

Achieving finality

Although the Father threatens further proceedings I am satisfied that the condition precedent, namely breakdown of contact arrangements will not occur at the Mother’s instigation. I take the possibility of further proceedings into account. I am satisfied that there are other factors, to which I have already referred, that mean the child’s best interests require that he live with his mother and which override the risk of future proceedings.

Conclusion

P W is a fortunate child in that he has two parents who are committed to his welfare. As is not uncommon, in parents who are separated, they have not been able to communicate as effectively with each other about their son as is desirable. This poor communication has interfered with their capacity as parents at different times and has meant that each has said or done things that have been other than in the child’s best interests. The one advantage to come out of this hearing, however, was a realisation in each parent that this has indeed been the case and that it cannot continue. Both gave their consent to attending the “Keeping Contact” program provided by UNIFAM and I am satisfied that improved parental communication will be the result.
Counsel for the Father submitted that Rice and Aspland had no application to these proceedings. This is the course Orders made by His Honour Justice Rourke were made on an undefended basis and that the Mother was on notice that further proceedings may result if contact remained problematic. I do not accept this submission. The proceedings were undefended as a consequence of the Father’s withdrawal of his application for residence. He has the opportunity to participate and to challenge the Mother’s application and elected not to. The Orders made by His Honour were made after a hearing on the merits, and importantly included a Family Report. Thus, I am satisfied that Rice and Aspland does apply and that the Father must demonstrate a substantial change in circumstances.
The relevant change in circumstances arises from the events of June 1995. I have already made findings about these events and am satisfied that these proceedings were necessary to secure the Mother’s commitment to future contact between the Father and child in a meaningful way. The reasonable contact order that had been made was too imprecise for these parties and their poor communication skills. Definition of the contact orders was essential and the application for parenting orders vis contact was necessary. Amending the application to include an order for residence succeeds by only the slimmest margin reaches the Rice and Aspland test. Indeed, had the Mother been represented, she may have been able to successfully tip the scales and persuade me that the threshold test for the residence application was not met. In the circumstances, however, I have determined the application on their merit.
Each of the parties gave their evidence to the best of their ability. No doubt because of the very stressful situation in which they had found themselves since separation, their evidence has been coloured by their own perceptions. Other than as identified in these reasons, I am satisfied that in areas of evidence in which they were in conflict, each gave their version of the incident as perceived by them, to the best of their ability.
The Court was greatly assisted by the Family Reports and the oral evidence given by Counsellor Passier. I find that my assessment of the parties and their respective parenting skills accord with the views expressed by the Court Counsellor. I also agree with her conclusions that the child should not be removed from his mother’s care as sought by his father.
There were numerous instances of disagreement that have not been the subject of specific findings in these reasons. I have taken into account the entirety of the evidence given in both written form and orally but focused in these reasons on the significant matters of fact and rationale. This child is being successfully parented by the Mother and she is committed to his welfare. She is his primary care-giver and he has lived with her all his life. He has lived with his half siblings, subject only to the period that J lived away from her Mother’s home, all of his life. He is attached to them and they to him. I am satisfied that the advantages that would arise for P W, namely the opportunity for a closer relationship with his Father, step-mother and C W and to enjoy a rural living environment are outweighed by the disadvantage of loss of his closest family relationships. The Father’s proposal for contact, should he be successful, are not sufficient to ameliorate the depth of loss that this child would suffer. He has already experienced the loss of contact with his father on a daily basis when his father left the home and then moved to Tasmania. Only for good reason should this child again endure with the pain of separation from a beloved parent and siblings those reasons, on the evidence, have not been demonstrated by the Father.
Turning now to the issue of future contact. It is common ground in these proceedings, that the child can travel as an unaccompanied minor and that contact to the Father in Tasmania should take place during two holiday periods each year. The differences between the parties relate to the duration of each of those contact periods. Although the Father only seeks contact twice a year, orders are in place which will enable the child to have contact with his paternal grandmother during the Easter and Spring school holidays. This is important for the child but reduces the time that the Mother and his siblings can share with him. The Father supports his mother’s contact with the child and constructing the contact orders is more complicated as a consequence.
Each parent shares Christian beliefs and I am satisfied that Christmas Days should be shared year about. Thus the child will have the opportunity to share the pleasure and excitement of Christmas with his parents alternatively. The duration of contact is adjusted to enable the child to spend some reasonable time during each school holiday with the Mother and her family enjoying family holidays and also to return to her with sufficient time to enable him to be prepared for the resumption of the school year. The distance this child travels is substantial and he needs to be given the chance to recover from the strain of travel before school resumes.
Telephone contact in the past has had its difficulties. The Father maintained his schedule of compliance which I note has not indicated difficulties for telephone contact during 1999 nor 2000. In circumstances where he makes only minimal contribution to the child’s financial welfare, it would be unreasonable for the Mother to incur additional costs by making expensive long distance telephone calls for the purpose of contact. I am satisfied that the Mother will comply with these Orders and the cost of telephone calls is to be borne by the Father.
It is common ground that the Father’s mother, Mrs H C, will do the collection and return for P W travelling to and from Sydney airport for the purpose of contact. That agreement is reflected in the orders. Similarly, the Father has made no contribution to the costs of obtaining school photographs and I have constructed a mechanism that will enable him to receive directly from the school, hence without any suggestion of delay by the Mother, school photographs and relevant school reports. The Father will need to make his own arrangements with the school for payment of any costs associated with these requests.
The orders I make are:
(1)That the Father’s application for residence of P W born 27 March 1993 be dismissed.
(2)That Orders number 1, 2 and 3 (insofar as this order relates to the Father) made 29 July 1999 be discharged.
(3)That the Applicant Father have contact with the child, P W born 27 March 1993 as follows:
(a)For a period of the New South Wales June/July school holidays each year commencing on the first Sunday of the holiday and concluding on the Thursday week thereafter;
(b)From 26 December 2000 until 20 January 2001;
(c)From 23 December 2001 until 18 January 2002;
(d)
Thereafter in even numbered years as set out in paragraph 3.2 above and in odd numbered years as set out in

3.3 above.
(4)That for the purpose of Order 3 above, the Father shall cause the child to be collected by Mrs H C from the Mother’s residence at 12 noon on that date on which contact commences and he shall be placed on a direct flight to Launceston, travelling as an unaccompanied minor, and shall be collected by the Father at Launceston terminal. At the conclusion of each contact visit, the child shall be returned to the Mother no later than 5.00 pm.
(5)That the Applicant Father shall have telephone contact with the child as follows:
(a)On 27 March each year between 4.00 pm and 4.30 pm;
(b)On Father’s Day in each year between 6.00 pm and 6.30 pm;
(c)On the Applicant Father’s birthday (in the event of the child not being in the care of the Father on that day).
(6)That the telephone contact referred to in these Orders shall be implemented by the Father telephoning the child’s home.
(7)That the Mother forthwith sign such authorities and documents as may be necessary with the child’s school such that:
(a)The Father can receive a duplicate copy of any of the child’s school reports;
(b)The Father can order and receive copies of the child’s annual school photograph.
(8)That both parties give each other not less than twenty one (21) days notice of their intention to change address.
(9)That both parties inform the other in writing of any serious illness that the child is suffering or accidents requiring medical attention that occurred during the time the child was in that parent’s care.

It is further ordered by consent

(10)That both parties forthwith enrol with the “Keeping Contact” parenting program organised by UNIFAM and participate in the parenting program for its duration.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: