A family court judge issued a parenting order permitting contact with the father after deciding a resentful mother had no reason to prevent contact.

Child contact is one of the most important family law issues that a court can decide. The decision in the case of F and F [2004] FCWA 88, issued by a judge of the Family Court of Western Australia, illustrates the principles that guide courts in making parenting orders concerning child contact.

The judge therefore decided that the parents should have joint responsibility for the child’s long term care and welfare.

Facts of the case

After living together for a short time, a man and woman married. Less than three years later, they separated. One child was born during the marriage. At the time their case was heard, the parents lived in different towns, more than an hour distant from each other. The father and mother did not dispute that their son should live with the mother, but the father wanted:

joint responsibility for the child’s long term care and welfare;

• longer weekend contact with the child than the wife wanted;
•  contact on certain holidays;
•  telephone contact with the child twice a week; and
•  notice of parent/teacher conferences, sporting events, and other school activities in which the child would participate so that the father could attend those events.

The mother opposed those requests.

Legal principles guiding the court’s decision

The court’s decision was broadly guided by a provision of the Family Law Act (currently section 60CA FLA) that requires the best interests of the child to be the paramount consideration guiding the issuance of a parenting order. More narrowly, the court was guided by section 60B FLA, which articulates the general principle that, unless it is contrary to their best interests, “children have the right to know and be cared for by both their parents” and to spend time and communicate with each of them regularly. That section also states the principle that parents should “jointly share duties and responsibilities concerning the care, welfare and development of their children.”

The court’s application of legal principles

Having had a chance to listen to both parents testify and to observe their demeanor, the judge described the wife as “bitter and resentful.” The judge viewed her opposition to the husband’s requests as motivated by her desire to have nothing to do with her husband and to assure that he had as little contact with their son as possible.

The judge saw her refusal to tell her husband about their son’s school enrollment and baptism as obstructing the general principle that parenting responsibilities should ordinarily be shared, and saw no reason to believe that the parents had fundamentally different views of how their son should be raised. The judge therefore decided that the parents should have joint responsibility for the child’s long term care and welfare.

Since weekend and holiday contact was the father’s only chance to maintain a close bond with his son, the court granted the father’s request to have contact with his son from late Friday afternoon to late Sunday afternoon, as well as weeklong contact four times a year, including contact on certain holidays.

The judge decided not to allow telephone contact because the mother made her displeasure with that contact known to her son every time the father called and the judge did not want to cause the son to experience divided loyalties. He decided the school, rather than the mother, should notify the father of school events to assure that he received the notices.