W and K
[2003] FMCAfam 206
•30 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & K | [2003] FMCAfam 206 |
| FAMILY LAW – CHILDREN – Interim application – residence, contact. Family Law Act , ss.60B, 68F Cowling and Cowling (1998) FLC 92-801 |
| Applicant: | G P W |
| Respondent: | J L K |
| File No: | ADM411 of 2003 |
| Delivered on: | 30 April 2003 |
| Delivered at: | Adelaide |
| Hearing date: | 29 April 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Berman |
| Solicitors for the Applicant: | Dixon Galasch Pty Ltd |
| Counsel for the Respondent: | Ms Leeson |
| Solicitors for the Respondent: | Robinson and Mason |
ORDERS
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
The child of the marriage R J W born on the 10th day of July 2001 live with the mother and she be responsible for making decisions concerning his day to day care, welfare and development.
The father have contact to the said child on an alternating weekly basis as follows:
(i)in the first week from 6.00pm Friday until 6.00pm the following Saturday;
(ii)in the second week from 6.00pm Saturday until 6.00pm the following Sunday (or the following Monday if that Monday is a public holiday);
(iii)at other times as may be agreed between the parties.
The said child be delivered and returned at the beginning and end of each contact period at the Wakefield Street Police Station, Adelaide.
Each party is restrained and an injunction is hereby granted restraining each of them from denigrating the other or permitting any other person to denigrate the other in the presence of the child.
The application and response be fixed for final hearing on 2nd and 3rd March 2004.
Each party is to file and serve all affidavits of evidence on which they propose to rely by 4.00pm on 3rd February 2004.
The applicant pay the hearing fee or obtain a waiver of the hearing fee within 14 days of today’s date.
A Family Report be prepared and released to the parties on or before 22nd November 2003.
That the matter be listed for further directions following the release of the Family Report at 9.30am on 5th December 2003.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM411of 2003
| G P W |
Applicant
And
| J L K |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to competing applications for interim parenting orders concerning one child, R JET W born
10 July 2001. Accordingly at the present time R is just over twenty-one months of age. The parties to the proceedings are R’s parents. His father G P W “the father” and his mother J L K (formerly W) “the mother”.
The matter was listed as a matter of urgency because of tension between the parties and their vigorous disagreement concerning the circumstances surrounding their separation. On 12 March 2003 the parties agreed, without any prejudice to their competing applications that R should live with the father each weekend from 6.00 pm on Friday until 7.30 am the following Monday and with the mother at all other times with the child to be exchanged between the parties at the Netley Police Station. Orders were made to this effect by Federal Magistrate Mead.
The father is the applicant in the proceedings. By way of his application filed on 21 February 2003, on both an interim and a final basis, the father seeks orders that would allow R to live with him and the mother to have contact with R as the parties may agree between themselves.
In her response filed on 20 March 2003, the mother sought orders that would allow R to live with her on both an interim and final basis. Initially she proposed that R have contact with his father on two occasions between Monday and Friday of each week from 6.00 pm until 7.00 am as well as on the weekend from either 6.00 am until 7.30 pm or from 6.00 pm until 7.00 am, depending on whether she herself was working a day or night shift.
However since the interim orders were made by Federal Magistrate Mead on 12 March 2003, she has changed her position and in her amended response filed on 10 April 2003, she seeks orders that would allow the father to have contact with R from 6.00 pm Friday until 6.00 pm the following Saturday of one week and from 6.00 pm Saturday until 6.00 pm the following Sunday of the other week. It is her position that R is too young to have extended contact with his father and that the current arrangement has resulted in R displaying some behavioural problems. She believes that a period of contact of about 24 hours is the maximum duration that is appropriate for R at this stage and this will remain the position until he attains the age of three years.
It is the father’s position that he has been deeply involved in the care of R, both before and after the parties separated and that it is likely to be in his best interests to remain living in the former matrimonial home until the matter can be heard on a final basis. In his submission this would ensure the greater continuity of care arrangements for R until the matter can be heard on a final basis. However if he is unsuccessful in his application, he would seek to have contact to R on the same basis as envisaged by the interim orders of Federal Magistrate Mead. To a large extent the second of his proposals envisages a situation that is close to a shared care arrangement in that R would spend three overnight periods with him each week. It is his position that R has a right to spend equal periods of time with both his father and his mother, who have both been involved in his care.
In this mother’s submission that this would be inappropriate given R’s tender years and the undoubted tensions between the parties at the present time. It is her position that as she has been R’s primary carer since the time he was born that it is inappropriate to move to a shared care regime at this stage. The mother has commenced another relationship since the parties separated and this has not made matters between the parties any easier.
A further complication is that the current residential addresses of the parties are separated by the metropolitan area of Adelaide. They do not currently live in ready geographical proximity to one another. The mother wishes the handover point to be changed from the Netley Police Station to the Wakefield Street Police Station, which is open 24 hours a day. As I understand matters Netley is a suburb near the Adelaide Airport, whereas the Wakefield Street Police Station is in Adelaide itself.
Brief background
The father was born on 29 August 1975. The mother was born on
17 February 1977. The parties married on 25 March 2000. R is their only child. The parties separated recently on 6 February 2003. The father is employed as a fleet despatcher with TNT. He works from Monday to Fridays and has recently modified his hours so that he commences at 9.00 am and finishes at 6.00 pm. He lives in the parties’ former home at Two Wells to the north of Adelaide.
The mother works as a call taker with the Ambulance Service. She works a rotating shift involving some day and night shifts on a complicated eight-week cycle involving shifts of night and day work[1]. There is a possibility that she will be promoted shortly and will be working a less complicated roster in future. However she will still be working some shifts at night and in the evening. She is living in Aberfoyle Park to the south of Adelaide.
[1] See mother’s affidavit of evidence of 10 April 2003 paragraph 4.
The mother stopped working in June of 2001, shortly prior to R’s birth and then she remained at home for eight months following his birth and provided for all of his needs. During this period the father was engaged in the full time paid work force. Thereafter the mother returned to the workforce and it is her position that she took shift work in order to maximise her time with R and to minimise the involvement of others in his care. It is the father’s position that once the mother returned to work he assumed a greater role in respect of R’s care. He deposes that once the mother returned to work, he cooked the family’s evening meal and took care of R when he came home from work. It seems that other members of the parties’ extended families have been involved with providing care to R on occasions when the parties have had to go to work.
The circumstances surrounding the parties’ separation seems to have been traumatic for all concerned. The parties had an earlier period of separation for a period of two months around September of 2002 but reconciled. The parties agree that during this period the mother went to live with her parents at One Tree Hill and that they looked after R whilst she was at work. During this period the father had regular contact with R.
The mother characterises the father as being “controlling and unpredictable”. She deposes that she was frightened of him and as a result left R behind when she decided to end her relationship with the father on 6 February 2003. Thereafter she only had contact with him briefly on two occasions. From the father’s position the mother voluntarily left R in his care and by necessary implications had no concerns about his ability to care for R. This is one of many disputes between the parties.
On 17 February 2003 arrangements were made for the mother to see R. Thereafter, from the father’s point of view, the mother refused to return him to the father as had previously been agreed by the parties. The father denies that he has behaved violently towards the mother during the period of the marriage or made threats towards her around the time the parties separated. This was the prelude to the present proceedings, which have been bitterly contested.
Up until now both parties have been busy working people and through financial necessity have been compelled to go out to work. I make no criticism of them for that, as in this day and age, parents of young children often have to balance the commitments of work and family in order to maintain themselves financially. As a result the parties in this case have had to enlist others to assist in the care of R from time to time. It is the mother’s position that whilst she and the father were at work, R was cared for primarily by members of her family or by paid babysitters. She has concerns about the ability of the father to care for R for extended periods of time.
The father is critical of the mother’s current working arrangements and in particular the constantly changing nature of her shifts. It is his position that his work arrangements, in particular that he works during the day from 9.00 am to 6.00 pm Mondays to Fridays, means that he is better placed to provide R with a stable and caring environment, with the assistance of his family and friends. Because the mother has moved to Aberfoyle Park to live, he believes that this will mean that she will have to have recourse to other carers whereas his proposal will allow R to access the same carers he has known up to this stage. The father also has some criticisms of the abilities of the mother’s father to care for R, although he has no such criticisms of her mother.
Having briefly outlined these circumstances, it is readily apparent that the parties do not currently enjoy an easy and trusting relationship with one another. This does not speak of a relationship where they would find it easy to have what amounts very close to an equality of responsibility for providing for the care of R.
The parties have chosen to exchange their son in the secure confines of a police station, an environment where they can both have recourse to independent authority if necessary. It is the mother’s position that such a location is appropriate for her peace of mind as regards her safety because in the past the husband has been verbally denigratory of her at handover and this of itself is evidence that the father is more focused on his understandable emotional disturbance at the end of the marriage rather than on what is likely to be in R’s best interests. The mother has chosen to tape record some of her conversations with the father at handover. A transcript of one such conversation is attached to her most recent affidavit and refers to handover on 31 March. The transcript certainly indicates a high level of tension between the parties and shows that they are some way from reaching an accommodation with one another.
Against this background the mother submits that the current level of contact between the father and R is not working and should be changed. R is upset by contact changeovers. After contact she deposes that R is very tired; becomes aggressive; is difficult to get to bed; and does not eat properly. She believes that contact arrangements as they currently stand throw R out of his routine. These factors lead the mother to the conclusion that the current contact arrangements should be reduced. She is most vehemently opposed to a change whereby R would reside primarily with the father until the final hearing of the matter.
The father deposes that R is happy to see him at the commencement of contact and he has no trouble with him during his periods of contact. He sleeps and eats properly and shows no aggressive behaviour. Accordingly if there is any fault in the current arrangements for the care of R, he believes that it lies in the mother’s household rather than in his. He denies being verbally abusive to the mother at handover, although this seems to fly in the face of the transcript of the conversation of 31 March 2003. My impression is that at the present time the father is still resentful of Mr T, the gentleman with whom the mother has recently commenced a relationship.
In many ways the current arrangements for R are tense, difficult and so far as the parties are concerned potentially explosive. Whatever orders are made in these proceedings, they need to ensure as much stability as possible for R until all the issues between the parties can be determined.
The mother’s position can be simply put as follows:
·Historically she has been R’s primary carer and is better placed in the current difficult circumstances to provide the majority of his care;
·Given this fact it is not appropriate to approach the question of interim arrangements for R’s care on an arithmetical basis, particularly in an atmosphere of escalating tensions between the parties as evident by the transcript of 31 March 2003;
·Her concerns about behavioural problems exhibited by R must be given some weight because of her role in R’s life to date and so serious consideration should be given to her proposal to reduce the current level of contact.
The father’s position can be simply put as follows:
·Although he concedes the mother’s greater input into R’s care in the first months of his life, after she returned to work his role in this regard was substantial and he is closely bonded to his son;
·He has modified his working hours and as a result is better placed to provide stability of routine and arrangements for R by allowing him to remain living in the former family home and when he is at work utilising the same care providers for R that he has previously known up until this stage;
·He denies being abusive and manipulative and accuses the mother of making these allegations to undermine his current close and loving relationship with R;
·To the contrary he says the mother voluntarily left R in his care and this shows her acceptance of his ability to care for R for protracted periods of time;
·His experience since the orders of 12 March 2003 is that R has adapted to the shared care arrangement and that if there is any instability it is in the mother’s home rather than his.
The applicable law
Although the positions of the parties can be easily articulated, that does not make the choice between their competing positions any easier. This is an interim hearing. It is not the final hearing of the matter. Because it is an interim hearing, the proceedings have been in a shortened form. The only evidence that has been before me has been in the form of affidavits. None of the deponents of those affidavits, particularly the parties themselves has been cross-examined about the contents of their affidavits. There has been no testing of the evidence of either of the parties. Accordingly it is not possible in a limited hearing for me to make findings of fact about any of the matters that are in dispute between the parties. In this case there are very many matters in dispute, not the least of which are the nature of the relationship between the parties – was it abusive as the mother would have or otherwise; is R experiencing behavioural problems because of the current contact arrangements; did the parties have an arrangement for shared care prior to their separation as the father would have it. These and many other areas of dispute between the parties cannot be resolved at this stage. It is not possible in the course of a short hearing such as this one to investigate fully the parties’ motives and their long term proposals in respect of R’s care.
Notwithstanding the obvious difficulties in determining a matter such as this one on a temporary basis, pending a full investigation of all relevant matters, there are provisions of the Family Law Act that I must apply and principles of law that bind me. In this as in all cases involving children the best interests of R are my paramount concern. I must bear in mind the principles of the Family Law Act set out in section 60B of the Act. These principles include the following:
(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; and
(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; and
(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.
I must also take into account the matters set out in section 68F(2) of the Family Law Act which sets out a list of matters that are to be applied as relevant to determine what is likely to be in R’s best interests.
In the case of Cowling and Cowling (1998) FLC 92-801 the Full Court of the Family Court held that in determining interim hearings such as this one, given the truncated manner in which such proceedings are conducted, a child’s best interests will ordinarily be best served by ensuring stability in the life of the child concerned pending final hearing. Ordinarily such stability will be met by making orders which provide for the continuation of existing living arrangements until the final hearing of the matter can, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. The court is entitled to look at how an existing arrangement came into place – that is whether it was forced on one party or came about through agreement – and how long it has been in place.
The difficulty in this case is that there is no clear status quo in respect of R’s care or in other words, it is difficult to see that the current arrangements for his care are ones in which R is well settled. The situation between the parties has been fluid and tense. They have only comparatively recently separated. Although the current arrangements for R’s care were reached with the consent of the parties themselves, they both made it clear that neither of them was resiling from the position that they had adopted at the outset of the proceedings between them. The mother has assumed new premises and begun a new relationship. It is her position that the current contact arrangements are not working. The Full Court in Cowling indicated that if, at the date of the hearing of the interim matter, the evidence did not indicate that the child concerned was living in a settled environment some limited evaluation of the evidence needed to be undertaken, applying the relevant matters in section 68F and bearing in mind the interlocutory nature of the proceedings themselves. The Full Court also said as follows:
“Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.”
In this case the relevant matters seems to be R’s tender years. The evidence is uncontroverted that for the first months of his life he was in the primary care of his mother. On balance it would appear that his primary attachment would be to her. I accept that this issue is far from conclusively determined and that it is also clear that many other people, including the father have played a major role in caring for R in his short life to date and given the fact that the parties are both working, in future others will continue to be involved in that care.
The parties do not have an easy relationship with one another. I also accept that the father denies any untoward behaviour towards the mother. However the evidence of the tape recording indicates otherwise. I accept that I do not know the full context in which the words were spoken but they are ones which are, to my mind, calculated to upset. Although I can well understand that the circumstances surrounding the parties’ separation were painful for all concerned, not least the father himself. This tense relationship does not bode well for an easy shared parenting regime and I must be careful not to readily accede to an arithmetical division of the time R spends with each of his parents because it appeals to principles of equity and fairness so far as they are concerned. My guiding principle must be what I think are R’s best interests.
The father quite rightly points to his occupation of the former matrimonial home and the ready access it provides to previous care arrangements for R as being strong factors in his favour. However the previous primary care provided by the mother and R’s tender years at this stage are, to my mind, more important factors, especially when coupled with the need to protect R from any possible psychological harm at this stage. In my view, in those circumstances, it would be imprudent of me to ignore the concerns that the mother has raised about the behavioural problems that she says R is currently exhibiting. In the current conflicted circumstances of the parties – as evidenced by their need to have recourse to a police station for contact handovers – I have grave reservations about what I believe is tantamount to a shared cared arrangement if I continue the current arrangements for R’s care. I also have grave concerns about the first of the father’s proposals – that is that R should live primarily with him – because of the fact that the mother was clearly central to R’s life and well being for the first year of his life and R is still a very young child, not yet two years of age. Because of R’s tender years that is another reason to be cautious.
This is a very difficult case as it is clear to me that both of the parties dearly love their son and want the best outcome for him. It is also difficult because of the nature of interim proceedings themselves and the paucity of evidence available at the present time. I am well aware of the great disappointment that will be occasioned to the father by the orders that will be made. Unfortunately it is not possible to allocate a final hearing date in Adelaide until March of 2004. The interim orders will stand until that date.
Ordinarily, in a case such as this one, where the Court is dealing with a child who is still very much at the early developmental stages, more regular periods of contact of a shorter duration than an entire block of three days would be called for. The difficulty in this case is that as thing currently stand the parties live at the opposite ends of Adelaide and it is not easy for them exchange R for short periods of time.
In my view, because the nature of the relationship between the parties is so much in dispute and more importantly the nature of R’s relationship with each of his parents is in dispute, this is a case where it is appropriate to obtain a family report.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment:
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Brown FM
Deputy Associate: Cathy White
Date: 11 June 2003
0
0
0