B and B - [2002] FMCAfam 230

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B

[2002] FMCAfam 230

FAMILY LAW – Contact.

Family Law Act 1975, ss.65E, 68F(2)

Applicant:

R B

Respondent:

F B

File No:

(P)DGM 1155 of 2002

Delivered on:

16 July 2002

Delivered at:

Dandenong

Hearing Date:

15 July 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Ms Einsiedel

Solicitors for the Applicant:

Counsel for the Respondent:

Ms Dowler

Solicitors for the Respondent:

ORDERS

Not by consent:

Until further order, the husband have contact with the children T J B born 14 July 1991 and C R B born 17 October 1992 as follows:
(a)each Sunday from 10 am to 3 pm.
(b)during such contact the husband not take the children to the home of his parents.
That the application otherwise be adjourned to 2 September 2002 at 10 am.
That the reasons for judgment be transcribed and be made available to the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

(P)DGM 1155 of 2002

R B

Applicant

And

F B

Respondent

REASONS FOR JUDGMENT

This matter concerns an issue regarding contact between the husband and the two children of the parties, T J B who was born 14 July 1991 and C R B born 17 October 1992. Both children live with their mother by agreement. The children are aged 11 and nine. The dispute between the parties about contact has arisen because of what appears to be, or at least is asserted by the wife to be, an alienation between the children and their father. The precise nature of that alienation is not clear as the parties have some conflicting assertions about it.
What is put by the wife and appears to at least be accurate to some extent is that there is a reluctance on the part of the children to see their father. As a consequence of that, the father has been visiting the children for about three hours each Sunday at their mother's home. There are a number of matters which the wife raises which she asserts might have something to do with the children's attitude to their father, including what she says was some violence towards her during the marriage.
I am not in a position to make any findings of fact about those matters and even if findings of fact were or are ultimately made whether or not any deterioration in the relationship of the children and their father has anything to do with those matters. Those are issues which really should be the subject of some expert assessment. The parties have agreed that they will obtain a report from a psychologist as soon as possible with an adjournment time of about six weeks. The role of the expert will be to explore the relationship between the children and each of their parents, but in particular with their father, and to try to establish, if that is possible, what problems there are in relation to the relationship with their father.
For the husband's side, he indicates that there is nothing which would suggest why the children are alienated from him, other than that it is the attitude of the mother which is causing these problems. Even if that were correct – and again I am not in a position to make any findings about that – it may not be a conscious act on her part. At this stage, however, as I have said, no-one really knows what the problems are, save that there do appear to be problems in the relationship. Even the extent of those problems is not clear.
What is asserted by the wife is that the children do not want to go and in particular C seems to have some concerns about going to the husband's parents or sister's home. Whether these are her own independent views or whether they reflect anxieties on the part of her mother is again unclear at this stage. Again, these matters will be considered by the psychologist.
The parties themselves finally separated in August 2001 in obviously reasonable fairly stormy circumstances. It is important, and both parties have recognised this, that this issue be addressed as soon as possible. It is obviously important for the children's psychological wellbeing that they have a positive relationship with each of their parents. The proposals put forward by the parties in this short period are, on the husband's part, a recognition that there are some difficulties so that he is seeking contact each Sunday between 10.00 and 4.00. That contact is away from the mother's home. The wife is seeking that he have contact each alternate Sunday between 10 am and 1 pm and that there be a restriction upon him taking the children to his sister or parents' home.
I am required by the Family Law Act 1975, in particular section 65E, to regard the best interests of the children as paramount. Section 68F(2) sets out a number of factors that I need to take into account in considering what is in the best interests of the children. I have regard to all of those matters. In this case, the most important matter really is the relationship between the children and their parents. As I have said, I am being asked to make a decision in circumstances in which there are clearly some problems between the children and their father, but the genesis of those problems is yet unknown.
What both parties agree is that the issue should be addressed as soon as possible for the benefit of the children, but that there should be some contact in the interim. There really are, as I have indicated, three issues between them: whether the contact should be each Sunday or each alternate Sunday, whether it should be from 10.00 till 1.00 or 10.00am till 4.00pm and whether there should be any restriction on where the husband takes the children.
As to the first issue as to whether the contact should be each alternate Sunday or each Sunday, it seems to me that as there has already been contact each Sunday that there should be contact between the husband and the children each Sunday. To do otherwise might jeopardise the building of relationship. I would hope again that once the psychologist has seen both of the parties they will be sensible enough to listen to the advice of the psychologist if something different is recommended.
Secondly as to the time period, in my view again, 10.00am to 1.00pm is a relatively short period of time. When travelling is taken into account it does not really leave much opportunity to do anything with the children. In my view, the period should be from 10.00 till 3.00pm.
The last issue involves whether the husband should be restricted from taking the children to his parents or sister's home. He says that he would be sensitive to the needs of the children and if C in particular did not want to go, he would not take her.
The Husband presently lives at his sister’s home. It would, in my view, be quite disruptive for him not to be able to take the children there or bring them into contact with her. Whilst I accept there is no objective evidence to suggest there is anything wrong with his family or any real reason why he should not take them, in my view, in this case it would be useful to have that restriction in the short term. I say that because it might also be helpful for the husband to be able to reassure the children because there's an order in place that it will not happen. If that is not the case, there is already some evidence to suggest that the children might raise this concern as a reason for not wanting to go. In a sense, it protects the husband as much as it does the children.
However, I do not believe there should be a general prohibition on the husband bringing his family into contact with the children so that his family might visit him when the children are there. That would seem to overcome the problem which has been suggested that the children may in some way be concerned about the discipline in his family's home. As I said, on the other hand, it might give some comfort to the children and also be of benefit to the husband in the short term.
I made orders yesterday in relation to what is to happen with the matter in the future. The only orders I need to make this morning, therefore, relate to this period of contact and an adjournment date.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 10 September 2002