A and A - [2001] FMCAfam 241

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & A [2001] FMCAfam 241

CHILDREN – residence – parental responsibility – supervised contact – conduct of parents – injunctions – children.

Applicant:

L M A

Respondent:

C A

File No:

ZP 1039 of 2001

Delivered on:

24 October 2001

Delivered at:

Parramatta

Hearing Date:

17 October 2001

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Mr Brown solicitor of Michael Brown, Family Law, DX5038 Liverpool appeared on behalf of the wife.

Counsel for the Respondent:

Mr Thistleton of Counsel appeared on behalf of the husband.

Solicitors for the Respondent:

Valenti & Valenti Solicitors,
DX25072 Fairfield.

ORDERS

The child of the marriage, K R A, born 25 July 2000 is to reside with the applicant wife.
The wife is to have the responsibility for the long term and day to day care, welfare and development of the said child.
The husband is to have contact with the said child from 12.45pm to 3pm each alternate Saturday commencing 3 November 2001. Such contact to take place at the Centacare Childrens Contact Service at Lithgow Street, Campbelltown or at such other venue and such other times as the parties should agree between themselves.
The husband is also to have contact with the said child for a period of two hours on the child's birthday, on Father's Day and either Christmas Day or Boxing Day each year at such venue as the parties should agree between themselves.
All contact between the husband and the said child is to be supervised by a staff member of the said Centacare Childrens Contact Service or such other person or persons as the wife shall nominate.
The husband shall not administer to himself any prohibited drug during any contact period or for 24 hours prior to any contact period.
The husband by himself, his servants or agents is hereby restrained from removing or attempting to remove the said child, K R A, born
25 July 2000 from the Commonwealth of Australia and the marshall of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and officers of all police forces and service in all states and territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain the husband from removing or attempting to remove the said child from Australia.
The husband is to restrain from applying or attempting to apply for any passport in the name of the said child, K R A, born 25 July 2000.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police are requested to place the name of the said child, K R A, born 25 July 2000 on the airport watchlist and maintain the said child's name upon the said list.
Pursuant to section 65L(1) FLA (1975) compliance with these orders is to be supervised by a family and child counsellor nominated by the primary dispute resolution coordinator of the Federal Magistrates Court for a period of 12 months from the date of these orders or for such further period of time up to 18 months as the primary dispute resolution coordinator shall direct.
The family and child counsellor referred to in order 10 above, shall give each party such assistance as is reasonably requested by that party in relation to compliance with them carrying of these orders.
Each party shall have liberty to apply in respect of these orders on
14 days notice.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA

ZP 1039 of 2001

L M A

Applicant

And

C A

Respondent

REASONS FOR JUDGMENT

This is a matter that came before this court last Wednesday,

17 October and was heard on that day. It is an application both for parenting orders and property orders. I can indicate at this stage that I have gone through the matter with some interest. I have concentrated on the parenting orders whilst I need some further time for the property orders, I propose to apply rule 17-02 of the Federal Magistrate's Court Rules and bring in a decision today on the separate question of the parenting orders. The property orders will be available shortly and when I say shortly, I mean with days but I have given priority, as I said, to the parenting matters which I consider to be of the utmost importance.
The orders relate to the child K R A, who was born on 25 July 2000. The child has been living with the wife since separation. The parties commenced their relationship in approximately 1996 and were married on 11 July 1998. The child K was born as I said on 25 July 2000. The parties separated on 7 December that year. The relationship was a volatile one and the husband had certain difficulties with psychological matters which turned out to be severe anxiety attacks and serious attacks of depression. These matters had a considerable affect on his behaviour and there were a number of violent incidents including one at the parties' wedding.
The husband also had had some involvement with illicit drugs. The wife says that he had been involved with hard drugs such as heroin and cocaine. The husband denies that involvement but certainly makes admissions of use of marijuana or cannabis, as it is known to the law. The complaint by the wife during the marriage relating to the child K was, in her view, the husband's apparent rejection of the child and her view his decision to have as little to do with the child as possible. At one stage she reports him as having said that he couldn't bond with the child, he couldn't get close to her. This is not the husband's view.
When the parties separated in December, there were short periods of contact which were not without difficulty and eventually when the matter came to court, the husband in response, sought an order that the child should reside with the wife but that he should have certain contact. On 6 June, this matter came before this court and after some discussions, orders were made by consent by his Honour Federal Magistrate Connolly. Those orders made until further order were that the husband should have contact with K at the Centacare Childrens Contact Service at Campbelltown, each alternate week at times to be arranged by the service and that there should be a number of sessions of contact and there is also an order that the pattern or a grandmother should be able to attend contact.
Contact pursuant to these orders did, in fact, take place although it had a somewhat chequered history. Each party reports difficulty as far as the contact is concerned. The wife and her mother report considerable signs of distress by the child when taken to the contact centre. The wife reports the husband arriving late on occasions and on two occasions where contact did not take place. One of those, the husband said that he was ill and was not able to attend, although the wife believes that the husband was, in fact, at a party. There was also another occasion where the child had managed to fracture her left humerus and was not well enough to attend. The child, in fact, had been hospitalised albeit briefly. Quite clearly, no criticism can attach to the husband for contact not taking place on that occasion.
There was also an occasion on 22 September, and this is common ground between the parties, where the child was unsettled, the husband arrived and about 30 to 40 minutes later the wife received a call asking her to come back and collect the child. Apparently, the child had shown signs of great distress and the father, apparently, in consultation with the centre staff had deemed it appropriate to cut short the contact and alleviate the child's distress by returning her to her mother.
The husband for his part has been adamant in his desire for contact to take place with his daughter but he too has found supervised contact, through the contact service, to have some unsatisfactory aspects. He, in fact, has found it difficult in that he is reported the child has been distressed and has exhibited signs of distress being separated from the mother or the mother's family and he does not believe this distress is, in fact, good for the child.
The difficulty that arises is then to what arrangements should be made. This is not a situation where it is alleged that the husband, despite the faults that the wife attributes to him is seen as a person who should not have contact with the child. The wife certainly seeks restrictions on his behaviour in the child's interest regarding accusations of abuse, although she has certain fears as to what she says he may do. She is not saying that there should be no contact. The father for his part has not adopted the attitude that there should be free and unrestricted contact no matter what. He has, in fact conceded at the commencement of the case through his counsel that this was a matter where, for the time being at least, that contact should be supervised. He reiterated that position in the witness box.
It can certainly not be said that the father's position about contact is wildly unrealistic, in fact, it is a very conservative position which he has adopted. It would be desirable if that was the entire range of issues relating to contact but unfortunately, no easy solution has occurred. Mother, her evidence expressed certain fears about the husband's potential behaviour. When asked by Mr Thistleton of counsel whether it was her view that there should be contact between child and father. She said, "I am worried about it".
She then, when the question was asked at the end, "Do you think there should be contact?" she said, "I am not sure. If she was safe and had a relationship, yes, but there are concerns that I have got." She then went on to enumerate these concerns which fall into three subject areas.
a)She says the child does not have a relationship with the father, that she the wife works part time and the child is then cared for by the maternal grandmother.
b)The wife also said that it was a big worry that the father had said that he wanted to take the child to Chile which is his family’s country of origin.
c)Finally, the wife said that the husband's behaviour was still volatile. She described him as exploding and pressure, that he might all right, she said, but the next minute he is really aggressive. These were her concerns. In fairness to her, she did not express a concern that the father's behaviour would involve physical abuse of the child. She has not made that accusation and it is quite clear that whilst she fears his volatile behaviour, she is not of the view that the husband would deliberately harm the child.
She went on to agree that it would be better for the child if she did have contact with the father. She said she wanted to know that the husband would be drug free, she wanted to that psychologically that he would be okay and she agreed that she would certainly feel more comfortable if someone that she knew were able to supervise the child.
That basically, sets out the wife's concerns and I should mention at this stage that her concerns about the husband's behaviour had extended to applying for an apprehended violence order from the local court at Liverpool which order was made on 29 January 2001. It is in force for a period of two years from that date. The order apart from the usual statutory prohibitions restricts the husband from assaulting, molesting, harassing, threatening or otherwise interfering with the wife. Restricts him from approaching, contacting or telephoning her except for the purpose of arranging or exercising contact with the children and restricts him from damaging her property.
There had been accusations in the past that the husband had, in fact, damaged jointly owned property. Certainly at a time when his psychological difficulties, his depression had a serious affect on him. Basically, the matter involves an agreement by the parties that there should be some form of supervised contact. Mr Brown, for the wife referred the court to the decision in B v B (1993) FLC 92-357. The Full Court in that particular decision had taken a somewhat restrictive view on the applicability of supervised contact. Although it should be made quite clear that the case of B v B involved a situation where the question of allegations of sexual abuse and concerns about an unacceptable risk of abuse.
Their Honours said the orders for supervised access in that case did not protect the rights of the children nor promote their welfare and failed to provide them with adequate protection from further harm. Neither supervisor believed that the husband abused the children, the wife was justifiably distressed at the prospect of access in such circumstances. Now I am firmly of the view that this is matter that can be distinguished from B v B. It was never the intention of the Full Court to say that supervised contact was not an appropriate order to be made in any case and the Full Court has gone on to make that quite clear.
Certainly, it applies, as I said, where there are findings of abuse where there is a concern about whether or not there is an unacceptable risk and in that case the Full Court has taken the view that supervised contact can be an unsatisfactory compromise. This is not such a case because those circumstance do not arise. There is no evidence here nor was it suggested by wife that there is an unacceptable risk. It is the view of both parties, certainly conceded by the husband that there is a need for supervision.
Based as much on the husband's relative lack of contact with the child and the need for the child to get to know him as on any other factor. Concerns about drug abuse, concerns about volatile behaviour arising out of anxiety disorder or about depression. Now, husband has produced some evidence relating to his treatment in respect of those matters including the fact that he has been under treatment from a psychiatrist, Dr P.
The frequency of that treatment has been reduced substantially due to the fact that Dr P's fees are no longer being funded by the appropriate workers compensation insurer because the husband had had a couple of industrial accidents which have restricted his ability to work and, in fact, give rise to the property application which will be dealt with on another occasion. In fact, it was regrettable that the most recent report from Dr P was nearly a year old.
Nevertheless, the husband has given evidence that he is still complying with treatment and his behaviour is somewhat less volatile that it was before. He believes that he is on top of the psychological traumas that have beset him. It is, of course, noteworthy that there is an apprehended violence order in force. There is no evidence before me of any breach of that order and certainly no proceedings have been taken against him since the end of January when the order was made for any breach of that order. The only inference the court can draw is that the apprehended violence order is meeting the need for which the learned Magistrate at Liverpool imposed it.
I am firmly of the view that this is a matter where for the immediate future that there should be contact and that it should be supervised. But how, that is the question. As to why it is the court takes these views, leaving aside the consent, I do look at some of the principles which the court should apply. The court must be mindful of the object of principle set out in Section 60B FLA. Subsection 1 says:
The object of this part is to ensure the children received adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Subsection 2 says:
The principles underlying these objects are that except when it is or would be contrary to a child's best interests.
(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.
(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.
(c)Parents share duties and responsibilities concerning the care welfare and development of their children.
(d)Parents should agree about the future parenting of their children.
Section 65E states:
In deciding whether to make a parenting order in relation to the child the court must regard the best interests of the child with the paramount consideration.
Section 68F(2) sets out various matters that the court must consider what is in the child's best interest. Now this is not a matter where the wishes expressed by the child can be taken into account bearing in mind that the fact that she is only just 15 months old.
There is no immediate change of circumstances proposed, there has been contact, albeit limited, taking place and it is not proposed by either party that there should be a change in those arrangements, that there should be widespread unsupervised contact. Is there a practical difficulty in expense at the child having contact with the father? Well, the need for supervision certainly raises serious problems in this regard. And this is almost the 64 dollar question in the case.
The capacity of each parent to provide for the needs of the child is a matter that one considers, indeed the child is living with her mother and I am satisfied that that is an appropriate arrangement. There is a need for some restriction on the behaviour of the father. A need which the father concedes. There have certainly been concerns expressed by the mother about potential for violence, the mental health issues, drug abuse and her concern which I am of the view is exaggerated about the father seeking to abduct the child and take her out of the country.
The child's maturity, sex and background — this is a 15 month old little girl who lives with her mother. Certainly, there is a need to protect the child from physical or psychological harm and it is certainly agreed by the parties that a form of supervision would be appropriate. Now the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents if matter of contention. The father is of the view that the mother is perhaps over anxious and motivated as much by her negative feelings towards him as by any other feature.
The father is of the view that his own capacity to be with the child whilst limited is one that he has demonstrated in the past. He denies that he rejected the child when she was a baby. He said he did a number of things for her which the mother disagrees and he has this urge to be a parent and if it means accepting restrictions then he say he will do it. Family violence, of course, there have been allegations that the father's behaviour, unstable behaviour in the past. There is a family violence order, to which I referred, the apprehended violence made by the Liverpool local court.
Certainly, it is always preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. Not satisfied that any other facts or circumstances are relevant. The various sections and their interaction were considered by the Full Court and the Family Court of Australia in B v B (1995) FRA and (1997) FLC 92-755 where the Full Court heralded in proceedings relating to parenting orders:
The best interests of the particular child in that case remains the paramount consideration. In that process the court must consider the must consider the matters set out in Section 68F to the extent that they are relevant in the particular case. Weight to be attached to any one consideration depending upon the circumstances of the individual case. That is a discretionary exercise by the trial judge. Ultimately, it is a question of applying a commonsense way of the individual sections so as to achieve the best interest of children in a particular case.

I am satisfied that there should be a regular contact arrangement so that the child and the father can build up their relationship. I am satisfied that there is a need for supervision, and as I said that appears to be the question. Certainly, I propose to make orders restricting the father from attempting to remove the child from the country and it is fair to say that in his evidence the father indicated that he had no intention of doing that and he indicated a willingness to consent to an order to placing the child on the airport watchlist.
The mother, as I said, was asked about her attitude to supervision. The maternal grandmother was cross-examined as to whether she would be a suitable supervisor, whether she had a willingness. She expressed some reservations at first although she conceded that she was a person with whom the child was familiar. She can pacify the child and she can soothe her. She certainly expressed reluctance to spend up to six hours sitting with the child in McDonalds if that was the proposal. I would indicate that the court does not impose to place that obligation on anyone.
Rather surprisingly, she did indicate that she did not know about supervision and found this quite unexpected. It is difficult to know what evidence she did expect that she was going to give. She did say, however, that she would do anything that she could for the child but she did not know what was best for the child. Certainly, the mother then called her brother and a couple of friends, one of which a Ms C she certainly was not prepared to take a role in the supervision although Ms M indicated a willingness perhaps down the track.
The wife's brother indicated an inability from a work point of view to be involved at this stage from the point of view time commitment but indicated some obligation or some as a brother once the matters were down the track. The father's own mother gave evidence, she has had health problems. Her evidence mainly dealt with the property side of the matters and it is clear that her relationship with the wife is not a particularly good one.
Father, in his evidence, said that he found the contact situation where the child became distressed, very distressing to him but he said, "I am prepared to agree to do anything" so that he could have a regular contact arrangement. But in all that, what does the court do, what arrangements can the court make? The parties are saying the present arrangements which were agreed to in June are not working, neither one has been able to come up with an acceptable workable solution.
The court gained the impression that the wife, as far as this was concerned, was agreeing to the question of contact in principle but finding it all too hard. The father who also gave evidence, again, has difficulties coming up with a proposal which he feels that the wife would agree to except that he has concern about the arrangement through Centacare. The wife's mother was asked about an alternative venue. There was some suggestion that there was a contact service at Liverpool which might be of more value but the parties had not investigated that.
I am not of the view, however, that the court can say that contact is fine in principle but that it is all too hard. I am firmly of the view that contact should take place in a way that can meet the needs of this child and can meet the fears of the mother and meet the ability of the father to comply. If ever there was a case which required some assistance by a family and child counsellor to work with the parties to come up with workable arrangements, this would have to be it.
In section 65L FLA makes provision for such circumstances. I am of the view that this is a matter where, whilst court is going to have to make some supervised contact orders which initially will continue the unsatisfactory status quo, the court will make an order of the primary dispute resolution coordinator of the Federal Magistrates Court will make a family and child counsellor available for the parties to work with them to arrive at a workable contact arrangement.
Each party will have to Cate with the counsellor because these arrangements, certainly for the next 12 months are going to be supervised. Clearly, the court would have concerns about the use of illicit drugs, even the drug use which the husband had agreed to would be regarded as an unacceptable use by this court and I would suggest by any court. Federal Magistrates Court is not going to endorse the use of illicit drugs even if it is only, and I use word only in inverted commas, cannabis, which still remains an illegal drug under the Drug Misuse and Trafficking Act in New South Wales and will certainly remain so.
There certainly need to be order to be put in place restricting, in fact, preventing the father from even thinking of doing something as silly as trying to remove the child from the Commonwealth of Australia but I am of the view that there is no appreciable risk of that. This is a matter where they may well be a need a little way down the track for the court to revisit contact arrangements. I will be giving the parties liberty to apply in such a matter.
A copy of these orders will be made available to the legal advisers to the parties by my associate today. I propose to stand the matter out of the list and I will be dealing with the property issue as a separate matter and I would expect to hand that down within the next few days, probably early next week, but my associate will contact the legal advisers for the parties so that the appropriate orders relating to property can be made.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: