W and S
[2000] FMCAfam 57
•2 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & S | [2000] FMCA fam 57 |
| CHILDREN – Contact – Residence – Change of name |
| Applicant: | S E W |
| Respondent: | N A S |
| File No: | ZB2563 of 2000 |
| Delivered on: | 2 November 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 1 November 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Tolton |
| Counsel for the Respondent: | Mr Theobald |
ORDERS
That the child J S reside with his mother and she be responsible for decisions relating to his day to day care, welfare and development whilst J is in her care.
That the mother and the father be jointly responsible for decisions relating to J’s long term care, welfare and development.
That J have contact with his father and his father be responsible for decisions relating to his day to day care, welfare and development during contact periods at all times as the parties shall agree and in particular:
(a)Every second weekend from 9.00 am Friday until 5.00 pm Sunday commencing 10 November 2000;
(b)From 5.00 pm every second Tuesday until 5.00 pm Wednesday commencing 7 November 2000;
(c)From 5.00 pm every second Thursday until 5.00 pm Friday commencing Thursday 16 November 2000;
(d)For two periods of up to two hours each period in each week in the event that the father wishes to take J to a commercially recognised class (eg swimming or gymboree).
That in the event that either parent is unable to care for J for any period longer than three hours then the other parent is to be offered the opportunity to care for him before any other carer is engaged.
That the father be responsible for arranging the collection of J from his mother’s residence and the mother be responsible for collecting J from the father’s residence whilst the father lives within 40 minutes walk of the mother’s residence.
That J remain with his father until 5.00 pm 3 November 2000 after which the MOTHER shall be entitled to collect the child.
That unless otherwise agreed the parties share Christmas Day with the father having him from Christmas Eve until 1.00 pm on Christmas Day in even numbered years and the mother in odd numbered years with the other parent having contact in the afternoon until Boxing Day.
That J spend up to half a day on his birthday with the parent who is not caring for him on that day.
That the child is to be known by the surname S and the Christian names J W. The mother is restrained from changing the surname of the child without order of the Court.
IT IS NOTED
That the parties acknowledge that these contact orders will require renegotiation from time to time as J’s education, maturity and age require. They shall continue to develop their levels of communication and shall engage appropriate Counselling and Mediation services as the first option in resolving any future disputes.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 2563 of 2000
| S E W |
Applicant
And
| N A S |
Respondent
REASONS FOR JUDGMENT
Introduction
N S (“the mother”) and S W (“the father”) are the parents of J S, an infant born on 6 May 2000. The current dispute between the parties concerns the residence and contact arrangements for their son.
The history of the relationship between the parties is set out in the report of R A M (“the M’s Report”), filed in the Court on 31 August 2000 at paragraphs 14 to 17. In summary, the relationship arose from a work situation; was nothing more than a casual liaison during which time the parties had occasional sexual relations. The parties never lived together.
Again, for the purposes of brevity, it does not seem that the description of events which took place after the mother discovered she was pregnant, set out at paragraphs 18 – 40 of the M’s, report is seriously contested. In essence, the parties, after discounting the possibility of a termination of pregnancy, decided on adoption, although each party claims the other proposed the idea. After the birth of the child it seems the parents changed their minds, independently of each other. This is hardly surprising. The father shared the news of his son’s birth, shortly after birth, with his parents who indicated they would support and assist him if he wished to parent the child. The mother, after a short period in Sydney to consider the matter and when she became aware of the change in view of the father, decided not to proceed with the adoption.
The history of the legal proceedings, which commenced in the Southport Magistrates Court on 24 May 2000 is well known to the parties and does not require to be recited, save to observe that the parties and their advisers deserve credit for co-operating in achieving an early hearing date in this Court – before the child has reached the age of 6 months. This reflects an appropriate recognition by the parties of the importance in having this dispute resolved, for the benefit of the child. I also observe that before the hearing commenced, the parties were engaged in Mediation/Counselling with a Family Court Counsellor and despite their best endeavours they were not able to reach an agreement, necessitating a judicial decision.
Documents relied upon
The mother gave further brief evidence and was cross-examined. She relied upon:
·Her affidavit filed 21 June 2000;
·Her affidavit filed 28 September 2000;
·Her affidavit filed 24 October 2000;
·Affidavit of G A S filed 24 October 2000;
·Affidavit of K S R filed 24 October 2000.
The father gave further brief evidence and was cross-examined. He relied upon:
·His affidavit filed 24 May 2000;
·His affidavit filed 27 June 2000;
·His affidavit filed 17 October 2000;
·Affidavit of Jill Jury filed 27 June 2000;
·Affidavit of Jill Jury filed 17 October 2000.
Both parties relied upon the M’s Report and neither party sought to cross-examine any other witnesses.
Issues and orders sought
The mother sought an order for residence of the child with the father to have contact, essentially every second week-end, one additional day each week and some extra time for swimming lessons.
The father adopted the interim agreement reached by the parties and set out at paragraph 134 of the M’s report, with essentially the child living with him and the mother having contact each weekend and two half days each week.
I note that the interim order made by me on 24 August 2000 adopted the recommendation at paragraph 134, although the days were different.
It follows that the issues for determination were:
a)Where the child should live;
b)The extent and frequency of contact;
c)The surname of the child.
The law
Residence, contact and specific issues orders are parenting orders. Section 60B of the Family Law Act sets out the objects of the Act in respect of these matters and 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.
In determining what is in the child’s best interests, the Court must consider the factors set out in Section 68F(2), as far as they are relevant. I conduct such an analysis below, having formed the view in this case that sub sections (f); (i); (j) and (l) are of marginal relevance.
In respect of the issue relating to the surname of J, there is only one principle, that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents (CHAPMAN and PALMER (1978) FLC 90-510).
I also note the remarks of ROWLAND J in Re: SKIPWORTH and MANEY (1989) FLC 92-018, where he said that when parents are not married it is the norm for a child to have the mother’s surname.
Section 68f(2) factors
(a) The child’s wishes
Because of the age of the child, there are no expressed wishes of the child.
(b) The nature of the child’s relationship with each of the parents and other persons
Each party does not dispute that the child has a loving relationship with each parent. The child also is comfortable with the company and relationship with the grandparents. He is, in all respects, a much loved child.
The relationship between J and his half sibling J (now aged 4 years) I am satisfied has continued to develop since the contact orders have provided the opportunity for the children to spend more time together with their mother. Ms M, at paragraphs 106 and 107, observed the interaction between the children at the time of her consultations
(15 August 2000) and assessed that:
“It is important to promote the sibling bond as they have the opportunity to know each other and to grow up as brothers. Otherwise both children would be raised as only children.”
The father in his evidence showed a greater awareness of the importance of this relationship between the two boys, than a reading of his earlier affidavits might suggest. This is an important example of the advance in parenting skills and attitude demonstrated by the father, although I note the comment made in his most recent affidavit in the sheet he says he typed that:
“as for his brother I believe that it is better for J to be with his father and extended family rather than his mother and brother”.
(c) The likely effect of any change in the child’s circumstances
The husband urges that I should give significant weight to the fact that for most of the child’s life to date, he has been in the care of the father, assisted by the father’s extended family. He does not say that the child would not cope with a change in residence, but does say that:
“Our home has adapted very well to J’s arrival and would be devastated should his living arrangements change.”
I’m sure that is the case.
The mother says that the child would cope with a change and points to the regular contact proposed by her as ensuring the close and loving bond between J and his father and extended family will be preserved.
In the M’s report at paragraph 119, she assesses that J would “adapt readily” to a change in residence. Further at paragraph 131, she identified the Court processes as a “significant factor”, and said that “if a trial could be arranged speedily at least by the end of this year – then it seems sensible to leave J in his father’s care”. This observation bore heavily in my mind when I made the order of 24 August 2000. At the time I remarked that the unusual circumstances of the case, the age of the child, and the speed at which a hearing had been arranged would make it difficult to convince me that any “status quo” agreement would be persuasive. My view is still the same, and I do not attach, in the totality of the evidence a significant weight to this argument.
(d) Practical difficulty and expense associated with contract
The parties live close to each other and although the mother, who does not have a driver’s licence or a car, relies upon walking or the assistance of her family I do not consider there are any significant difficulties in contact arrangements or changeover. The father has shown a very child focussed response in this regard and has co-operated with travel requirements for the child.
(e) The parent’s capacity to meet the child’s needs
I am satisfied that both parents have an equal capacity to care for this child. I consider that initially the father would require more assistance from his family than the mother would need from her family, but this is more of a reflection of his inexperience and desire to do the best job possible with his son, rather than lack of either capacity or willingness. Whilst the father (and to a limited extent his mother) initially expressed some concerns about the mother’s capacity to parent and/or control J, it is clear that he now accepts without reservation her ability. He made the concession she “was a good mother”. He has now had a better opportunity to observe her as a mother to both J and J and no longer raises any concerns in that regard.
(h) The attitude to the child and to the responsibilities of parenting
When this matter was first before me, I warned the parties that I would not allow this case to develop into a form of “cross character assassination”. They have observed that request and during their evidence they both made remarks which reflected a growing appreciation, awareness and respect for the role the other would play in their son’s life. I am satisfied that they both are trying hard to come to grips with the joint responsibilities parenting a child involves. The father, in particular, impressed me in his change of attitude from that described in the M’s report at paragraph 125. As Ms M property observed part of the initial difficulties between the parties:
“can be traced back to the simple fact that thy did not have a long, close relationship prior to J’s birth.”
I made a specific direction in my earlier order that each party should file one further affidavit including “details of their parenting plan”. This was an attempt by me to encourage the parties to think “long term” about their child’s needs rather than “short term”. With a child of this age, and with such a finely balanced position between two loving and capable parents, I regarded their future plans and aspirations for their son as an indication of their acceptance and understanding of the responsibilities of parenthood. A reading of their final affidavits shows, in my view, a greater capacity for the mother to look ahead than the father. I am confident that the father will change over time, but I formed the view that some of the relatively trivial incidents over contact (including the disputed facts relating to contact yesterday) and the terms of his 12 point plan demonstrate a less realistic current appreciation of the responsibilities of parenthood. I acknowledge the significant sacrifices he has made to care for his son on a full time basis and both he and his son will benefit from that devotion.
Change of name
Whilst I understand the significance to the father of his son “bearing” his name, I believe the best interests of the child will be promoted by him having the same surname as his brother. I note that the birth certificate describes the surname as “S” and the father is identified. I would be concerned if the mother, upon repartnering or remarriage, changed her surname and that there would be a change to J’s name. The mother is prepared to agree to a restraint that prevents her from doing so. I will so order. It is my view that with the level of contact and continuing involvement the father intends to play in his son’s life, the child will not suffer confusion as to the identity and importance of his father and is likely to be comfortable in sharing the same surname as both his brother and his mother.
Conclusions
After a consideration of all factors, I firmly consider that the best interests of the child will be served by him returning to live with his mother with a high level of contact to the father. The ultimate critical factor which differentiated the positions of the parties was my desire to promote the relationship between J and J.
J is a very fortunate little boy. He has two parents who both love him dearly and can make a significant contribution to his long term care, welfare and development through their unique personal qualities. J also has the important benefit of grandparents who support the parents and can themselves contribute special qualities to his life.
It will be necessary for the mother and father to continue to work together and share the “highs and lows” of parenthood. From a difficult and uncertain beginning they have both come a long way in a short time. I congratulate them on their efforts and hope this decision will not put at risk the sincere expressions of hope and action for their son or the new appreciation of the important role each will play in J’s life.
The father, in cross examination, indicated no significant concerns about the level of contact proposed and I believe the mother’s proposal, at this time, is proper and in the best interests of the child. I accept that the mother is prepared to adapt her work hours, wherever she may be employed, and that time together on a weekend is desirable.
Orders
(1)That the child J S reside with his mother and she be responsible for decisions relating to his day to day care, welfare and development whilst J is in her care.
(2)That the mother and the father be jointly responsible for decisions relating to J’s long term care, welfare and development.
(3)That J have contact with his father and his father be responsible for decisions relating to his day to day care, welfare and development during contact periods at all times as the parties shall agree and in particular:
(a)Every second weekend from 9.00 am Friday until 5.00 pm Sunday commencing 10 November 2000;
(b)From 5.00 pm every second Tuesday until 5.00 pm Wednesday commencing 7 November 2000;
(c)From 5.00 pm every second Thursday until 5.00 pm Friday commencing Thursday 16 November 2000;
(d)For two periods of up to two hours each period in each week in the event that the father wishes to take J to a commercially recognised class (eg swimming or gymboree).
(4)That in the event that either parent is unable to care for J for any period longer than three hours then the other parent is to be offered the opportunity to care for him before any other carer is engaged.
(5)That the father be responsible for arranging the collection of J from his mother’s residence and the mother be responsible for collecting J from the father’s residence whilst the father lives within 40 minutes walk of the mother’s residence.
(6)That J remain with his father until 5.00 pm 3 November 2000 after which the MOTHER shall be entitled to collect the child.
(7)That unless otherwise agreed the parties share Christmas Day with the father having him from Christmas Eve until 1.00 pm on Christmas Day in even numbered years and the mother in odd numbered years with the other parent having contact in the afternoon until Boxing Day.
(8)That J spend up to half a day on his birthday with the parent who is not caring for him on that day.
(9)That the child is to be known by the surname S and the Christian names J W. The mother is restrained from changing the surname of the child without order of the Court.
IT IS NOTED
(10)That the parties acknowledge that these contact orders will require renegotiation from time to time as J’s education, maturity and age require. They shall continue to develop their levels of communication and shall engage appropriate Counselling and Mediation services as the first option in resolving any future disputes.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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