B & B
[2000] FMCAfam 31
•8 September 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2000] FMCA fam 31 |
| CHILDREN – Contact – Best interests – Family violence – Orders – Practice and procedure – Ex parte |
| Applicant: | I A B |
| Respondent: | R N B |
| File No: | ZP 323 of 2000 |
| Delivered on: | 8 September 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 22 & 29 August 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Barwick, Solicitor |
| Solicitors for the Applicant: | Barwick Boitano Solicitors DX28361 Parramatta |
| Counsel for the Respondent: | Mr Marr, Barrister |
| Solicitors for the Respondent: | Mark Rumores Solicitors DX5023 Liverpool |
ORDERS
The orders 4, 5, 6, 7, 8,9,10 and 14 made by the Family Court of Australia at Parramatta on 25 March 1998 are vacated.
The orders 2, 3, 4, 5, 6, 7, 8 and 9 made by the Family Court of Australia at Parramatta on 20 April 2000 are vacated.
That the Father have contact with the children:
(a)For one half of each school holiday period;
(b)On Christmas Day from 6.00 pm Christmas Eve and overnight until 12 noon Christmas Day and at Christmas the following year from 12 noon Christmas Day and overnight until 6.00 pm Boxing Day and this pattern to continue for alternating years;
(c)Each Father’s Day from 9.00 am until 6.00 pm;
(d)In the event that Mother’s Day falls on a contact weekend then the Father shall have no contact with the children on that day and the Father to deliver the children to the Mother by 9.00 am;
(e)On each alternate weekend from 6.30 am Friday to 8.30 am Monday; and
(f)At all other times, including the Father’s Birthday as agreed between the parties.
For the purpose of exercising contact, the Father shall collect the children from S A’s Church at W on the Friday evening and return the children to school on the Monday morning.
The Mother is to provide the children with an evening meal on the Friday of a contact weekend and the Father is to provide the children with breakfast on the Monday morning and the father is to provide the children with either lunch or sufficient money to buy their lunch at school on the said Monday.
The Mother is to ensure that the children have sufficient clothing, school uniforms and any necessary equipment that they require for each contact weekend and the following Monday at school when the contact commences on the Friday evening.
Neither parent is to physically discipline the child C I B.
Neither parent is to discipline the children E A B or S P B by means of any physical blow to the head or neck.
Neither party shall denigrate the other party in the presence of all or any of the children, nor shall either party cause any third party to denigrate the other party in such circumstances.
The Mother shall facilitate any desire expressed by the children to telephone the Father.
In the event that the Father is unable to exercise contact in accordance with these orders, he shall be entitled to such compensatory contact as agreed between the parties, provided that he has provided written notice of his inability to exercise that contact a reasonable time beforehand.
In the event of either party wishing to travel interstate with the children, that party shall give 14 days notice in writing to the other party and provide the other party with details of accommodation and telephone numbers, and either party shall facilitate the desire of the children to telephone the other party.
In the event of either party wishing to travel overseas with the children, that party shall give the other party one month’s notice in writing of that intention together with details of accommodation and telephone contact numbers.
As far as possible, the parties shall communicate with each other in writing, which may include messages by the use of a facsimile machine.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 323 of 2000
| I A B |
Applicant
And
| R N B |
Respondent
REASONS FOR JUDGMENT
Application
The husband and wife in this matter both seek orders varying the husband’s contact arrangements with the three children of the marriage, C, born 8 September 1988, E, born 11 January 1990, and 10 January 1995. The three boys all reside with the wife. Orders were made by consent at the Family Court of Australia on 25 March 1998, setting out a detailed regime for contact. In all, some 30 specific provisions were made.
As a result of certain incidents, the wife made application to H Local Court for orders suspending contact, and that court made an ex-parte order on 31 March 2000. The proceedings were transferred to the Family Court at Parramatta, and interim orders were made by consent on 20 April 2000, reinstating the contact and requiring the parties to attend counselling.
On 18 July 2000 the proceedings were transferred to this court and listed for hearing on 22 August. Evidence was taken on that day, and the evidence was concluded on 29 August.
Background
The parties were married on 13 December 1986. Their three sons were born in 1988, 1990 and 1995. The Family Court dissolved the marriage between the parties on 11 April 1997; the Decree became absolute on 12 May 1997.
The husband has remarried, and lives with his current wife at C. The wife lives with the children at W, in a house to which she has recently moved. She previously lived at another address in W.
The incident from which these current proceedings arose occurred on Saturday 18 March 2000, when the three boys were spending a contact weekend with their father. An altercation arose between the two elder boys, C and E, and the husband struck or slapped E as a disciplinary measure. The wife says that the husband struck C as well, but the husband does not agree. The boys returned to their mother the following Monday morning.
The wife said that she received an account of the incident from E on the Monday evening. On the Tuesday, the wife received reports from the boys’ teachers about their behaviour at school the day before, and she spoke to the School counsellor and the Deputy Principal. The boys spoke to their father on the telephone on the Thursday evening.
The wife took E to see the local doctor on Friday 24 March, as he had reported having headaches. Upon the doctor reporting traces of dried blood in the child’s ear, the wife took E to H Police Station and made a complaint. Senior Constable Vassallo telephoned the husband and asked him to make a statement. The husband agreed to go to the Police Station the next day. The Police declined to commence Apprehended Violence proceedings against the husband on the basis of E’s statement, but the wife deposed in her affidavit of 19 April 2000 that the Police Officer suggested to her later that day that she could apply to vary the contact orders made by the Family Court. The husband and his current wife both made statements at H Police Station on Saturday 25 March. The boys received telephone calls from their father on both the Friday and the Saturday, which were acrimonious, according to their mother’s affidavit.
On Tuesday 28 March the wife spoke to the School Counsellor at the boys’ school, who referred her to the Adolescent Mental Health Clinic at H Hospital. She said that they referred her to the Department of Community Services.
The wife spoke to DOCS on the telephone on the Tuesday and on the Wednesday. Two officers from that Department interviewed the boys and their mother on Thursday 30 March. Telephone discussions took place between the Department and both the husband and wife on the morning of Friday 31 March, which led to an agreement by the husband that he would not seek to have contact with the child E that weekend.
On the afternoon of Friday 31 March 2000, the wife attended at H Local Court where she spoke with the Chamber Magistrate. An application was prepared, supported by an affidavit by the wife, seeking that contact be suspended. The text of the wife’s affidavit is as follows:
“1. I am the applicant herein and the mother of the children the subject of this application.
2. Orders were made in the Parramatta Family Court on 18/2/98, which provide, inter alia, for the respondent father to have contact with the children of the marriage.
3. On 18.3.2000 the respondent assaulted the middle child E, and as a result E does not wish to participate in contact with his father at this point in time.”
“4. The Department of Community Services has been involved this week in relation to counselling the two elder children and DOCS have suggested that I suspend Contact until further order of the court.”
By coincidence, the wife’s current counsel, Mr Marr, was present at the court on that afternoon in respect of another matter, and he appeared for the wife in her application before the Magistrate. I accept that Mr Marr had no involvement in the preparation of the documents. The Magistrate at H dealt with the matter on an urgent, ex parte basis and made orders, the relevant ones of which are:
“3. That the orders of the Parramatta Family Court (PA 7922/96) insofar as they relate to the respondent having CONTACT with the children of the marriage be suspended until further order of the court.
Application adjourned to 7/4/2000.”
The wife faxed a copy of the court orders to the husband at about 2.45 pm that afternoon. As a result, the husband did not exercise contact with the children that weekend. Contact resumed after the interim orders were made at the Family Court on 20 April 2000.
The parties proposals and orders sought
The parties have agreed to 13 orders that would provide that the children shall continue to reside with their mother, that the husband and wife have joint responsibility for the children’s long term care, welfare and development, and their father would have precisely defined contact. Other matters that have been agreed include arrangements for the provision of telephone numbers and addresses and school information, along with arrangements for compensatory contact, provision of meals to the children and agreement that one party should not denigrate the other to the children.
The areas where the parties cannot agree are:
a)The husband’s proposal that the husband and wife share responsibility for making day to day decisions about the children;
b)The husband’s proposal for contact on two weekends out of three;
c)The place where the children are to be collected at the commencement of contact and returned when contact concludes; and
d)The degree and type of notice to be given by the husband if he is unable to exercise scheduled contact.
Present arrangements
Now that contact has resumed, the present arrangements are those to which the parties agreed in February 1998, and were the subject of the orders made by the Family Court on 25 March 1998. The husband has contact on alternate weekends, collecting the children from the wife’s residence and returning them there. The husband is involved in the boys’ soccer, and has been taking them to soccer and watching them play even when it has not been his contact weekend.
Issues
The issues relating to contact stem from the ongoing antagonism between the parties. There have been altercations between them when the husband collects or delivers the boys at the wife’s residence, and the wife does not wish him to enter onto her property. She would like the husband to pick the children up from school on a Friday afternoon and deliver them to school on the following Monday morning. If he cannot leave work early enough to collect the children from school, she suggests that he collect the children from S A’s Church in W, where they can be supervised by their mother or by the youth workers at the Church. The wife also opposes the husband’s request for more weekend contact, saying that the children have friends in W and need to spend weekend time there. The mother opposes the husband’s application for shared responsibility in day to day activities.
Evidence
The husband and wife both gave evidence. They relied on their respective affidavits. In addition, the following documents were tendered in evidence:
a)A letter from the wife to the children’s school;
b)A diagram of the wife’s former residential property;
c)The transcript of the proceedings at H Local Court on 31 March 2000; and
d)A copy of the relevant file from the Department of Community Services.
It is clear from the evidence of both parties that there is a considerable degree of antagonism between them. The wife is less than enthusiastic about the husband’s present wife, describing her attitude towards her as “ambivalent”. The husband conveys the impression that he is frustrated by the wife’s attitude, which he blames for much of the conflict. The wife expresses strong disapproval of the husband’s use of physical discipline of the children, although she admits to resorting to physical discipline herself. She denies that she hates him, but admits that she does not like him very much. She would like to cooperate with him, but says that he harasses her, and the children, on the telephone.
The husband is an engineer, and his work often takes him overseas, sometimes at very short notice. The nature of his work often means that he has to wait for phone calls from countries that are in other time zones, which makes it difficult for him to leave work early on a Friday to pick up the children. At times, this would make him late, which the wife would no doubt find irritating. Worse still is the fact that he is apparently quite often in the position that he does not know well in advance if he is going to be able to take the children for school holiday contact. The problem was exemplified by a question from the Bench to the husband on the first hearing day, 22 August, about his availability to exercise school holiday contact during the September school holidays, which commence this afternoon and extend for three weeks because of the Olympic Games. The husband indicated that he was not in a position to say, because he was still waiting to hear about a work situation overseas. When the question was put to him on the second hearing day, a week later, the husband was still unable to commit himself. The uncertainty of such arrangements would make it highly difficult for the wife to plan her own holidays or other activities, not knowing whether the children would be with their father or not.
The principles to be followed
The Court must have regard to the best interests of the children in determining any application relating to contact. Section 68F(2) of the Family Law Act 1975 sets out a list of matters which the Court should consider in considering what a child’s best interests are. Some that are relevant here include (and this list is not exhaustive):
“(b)The nature of the relationship of the child with each of the child’s parents and with other persons;
(g)The need to protect the child from physical or psychological harm caused, or that may be caused by,
i)Being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
ii)Being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;..
(k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)Any other fact or circumstance that the court thinks is relevant.”
Conclusions
The wife reports in her affidavits that the two elder boys suffer from headaches and behavioural problems, which she attributes to their father. The boys have had counselling. I am firmly of the view that the boys suffer from some degree of anxiety, which is largely attributable to the antagonistic relationship between their mother and father. The children are the victims of the conflict between their parents. There is no evidence that the children should be removed from their mother’s care, or that their father should not have any contact with them. What the children need is a path out of the emotional minefield in which they walk.
For the benefit of the children, the Court must craft a set of orders which will reduce the opportunities for the parents to argue over what is to happen to them. The children need a degree of peace and quiet, without the likelihood of a further outbreak of hostilities over the details of everyday living. In order to arrive at an appropriate set of orders, the court must deal with:
a)The allegations of unnecessary physical chastisement of the children;
b)The damaging effect of the ex parte proceedings at H Local Court; and
c)The need to reduce friction at the pick-up and delivery of the children.
Physical chastisement
The incident on the weekend of the 18 March 2000, when the husband intervened in a physical dispute between the two elder boys, C and E, started this current round of litigation between the parties. The husband’s account is of a light slap to E and no physical chastisement at all of C. The wife’s account, obtained second-hand through the boys, is of a series of blows to E and either some or no striking of C, depending which account given by the boys is accepted. The incident led to a report to the Police and to DOCS. An order was made by consent on 20 April 2000 in the Family Court that the father not physically discipline the children.
The question of physical discipline of children is controversial, and the Children’s Court of New South Wales hears many applications under the Children (Care and Protection) Act 1987 that a child is or is likely to be abused because of over-vigorous physical discipline. Against this, smacking of very young children may well be an appropriate way of dealing with wilful behaviour, especially if the child’s safety is at stake.
In this case, I note that today is the twelfth birthday of the child C. He was born on 8 September 1988. I am in no doubt whatsoever that he has reached an age where he should not be physically disciplined by either of his parents. He is of an age where he can be reasoned with, and smacking or other physical discipline is undignified. The appropriate form of discipline for a 12-year-old is by way of reprimand or deprivation of privileges. I propose to make an order that he is not to be physically chastised by either parent.
I do not propose to make the same orders in respect of the two younger children, but there are inappropriate ways of administering physical discipline, which this Court would regard with disfavour. In the circumstances of this case, I consider that neither of the two younger children should be disciplined by any sort of blow to the head or neck, and I propose to order accordingly. In the case of the child E, physical punishment should be a rarity, as in most cases a reprimand or deprivation of privilege would be a more suitable sanction for bad behaviour.
Ex parte orders
I turn now to the ex parte orders obtained by the wife at H Local Court on 31 March 2000. There is no doubt that they have had an inflammatory effect on the relations between the parties in this case. I am satisfied that the application was not justified in the circumstances.
In his decision in Kennedy and Kennedy, (1993) FLC 92-409, Baker J of the Family Court said (at 80, 189):
“Ex Parte orders have become the bane of this Court. An ex parte order, in my view, should not made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk”.
Order 12 of the Family Law Rules (which apply in the Federal Magistrates Court as well as the Family Court) sets out the way in which urgent ex parte applications are to be made. O. 12 Rule 3, in particular, specifies a number of things that must be included in an affidavit in support of an application, including:
“the steps that have been taken to inform the respondent or his legal representative of the applicant’s intention to make the application or, where no such steps have been taken, the reasons why no such steps have been taken.”
The principles set out in O.12 R.3 are essentially those set out in the leading case of Sieling and Sieling (1979) FLC 90-627, where the Full Court said at 78,254:
“Whenever a Court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the Court…For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the court.”
The matters which the Full Court said that the court should consider when asked to make an ex parte order are:
·“The nature and imminence of the risk to the applicant, to a child, to property interests or to a third party;
·Any hardship or prejudice to the respondent and children or to any third party which may arise from proceeding to make the order ex parte;
·Where the order relates to property, whether there is a need to protect the respondent by requiring the applicant to give an undertaking as to damages;
·The possible consequences of delaying the order until the respondent can be heard, and the steps which could be taken to give notice to the respondent:
·The need to protect the respondent by ensuring that the order is clear in its terms, that it is served within the shortest possible time, that a return date is fixed and that the respondent be informed of his rights to apply to have the matter brought on before the return day.” (Evatt CJ and Marshall SJ at 78255).”
In this case, the wife’s own evidence shows that the claim of urgency was hard to sustain. She had received advice from the police that she could apply to vary the Family Court orders on 24 March, a week before she made the application. She had been advised by the Department of Community Services that the husband had agreed that he would not attempt contact with E that weekend. She was able to communicate with him by fax, as she faxed the engrossed copy of the order to him within about half an hour of its being made. She could well have advised him by fax that she was seeking urgent orders. She chose not to do so.
It is clear that the wife elected to make a last-minute application to the H Local Court to avoid the need to inform the husband of what she was doing. Her affidavit in support is one-sided and misleading, referring to an alleged assault and an involvement by the Department of Community Services. The affidavit suggests that the application had the support of the Department, and does not mention that the husband had already agreed that contact with E would not take place that weekend.
The wife’s actions in bringing the proceedings in H Local Court served only to inflame the situation to the detriment of the children and do her no credit whatsoever. The wife was well advised to consent to those orders being set aside when she did.
Sharing the day-to-day responsibility for the children
Whilst the parties have agreed that they should share the responsibility for the long term care, welfare and development of the children, the husband seeks an order that they also share the responsibility for making the day to day decisions as well. Not surprisingly, the wife does not agree. The husband’s proposal, which would necessitate a greater degree communication between the parties, can only be described as breathtakingly unrealistic. The wife has reported him to the police, complained about him to the Department of Community Services and taken court proceedings to suspend his contact with the children, yet he seeks that they should discuss the children’s activities on a day to day basis. The fact that in these very same proceedings the wife is asking for an order that he does not even go to her house to pick up and deliver the children should make it obvious that the husband’s proposed order would be disastrous.
Contact arrangements
It is clear that the Court needs to make orders in this case that will reduce the number of opportunities for the parents to argue with each other, especially in the presence of the children. The wife seeks that the husband should either pick the children up from school or from S A’s Church at W. It is clear that the husband cannot reasonably be expected to leave work to collect the children from school, and I do not propose to order that he should. The wife proposes that the children should be picked up from S A’s Church in W, where there are facilities for the children to be supervised by youth workers even if the wife has other commitments. This arrangement should reduce the opportunity for friction. The husband agrees that he should deliver the children to school on a Monday morning, and this would have the advantage of giving him some extra time with the children.
He argues that if he does not pick the children up from home they will not have the opportunity to go back and collect any items of clothing or equipment that they have forgotten. The husband says that the wife will not pack the children’s bags when they go on contact, and that they have to it themselves. The wife did not answer this allegation and, if it is so, it reflects badly upon her. If she wants this arrangement to occur, the wife must act as a responsible parent and see that her children are properly equipped for the weekend and school on Monday.
Communications between the parties
The husband argues, and the wife has not answered this allegation, that he cannot get through on the wife’s facsimile machine when he wishes to communicate with her about the children. If this is so, the wife cannot have it both ways. Her facsimile machine seemed to be quite capable of sending copies of ex parte orders to him, so it should be set up in such a way that it can readily receive messages about the children as well. It seems to be clear that the husband and wife cannot communicate either face to face or on the telephone without friction, so communication must necessarily be in writing. It is stressful to these children to expect them to be the bearers of messages between their estranged parents. I propose to order that necessary communication should by facsimile or written note.
Contact on two weekends out of three
The husband seeks an order that he have the children for two weekends out of three. This was not pressed, and I am not satisfied that a case has been made to support it. I take into account that each contact weekend, which will remain on alternate weekends, will commence on Friday evenings and conclude on Monday mornings.
The best interests of the children
The Family Law Act requires the court to regard the best interests of the children as paramount. The constant acrimony between the parents of these three children is stressful to them, to say the least. If the friction between the parents were to be reduced, the children would be happier in their dealings with both parents. The parents in this matter must also regard the children’s best interests as paramount.
I propose to make the orders set out on the attached schedule.
Orders
(1)The orders 4, 5, 6, 7, 8,9,10 and 14 made by the Family Court of Australia at Parramatta on 25 March 1998 are vacated.
(2)The orders 2, 3, 4, 5, 6, 7, 8 and 9 made by the Family Court of Australia at Parramatta on 20 April 2000 are vacated.
(3)That the Father have contact with the children:
(a)For one half of each school holiday period;
(b)On Christmas Day from 6.00 pm Christmas Eve and overnight until 12 noon Christmas Day and at Christmas the following year from 12 noon Christmas Day and overnight until 6.00 pm Boxing Day and this pattern to continue for alternating years;
(c)Each Father’s Day from 9.00 am until 6.00 pm;
(d)In the event that Mother’s Day falls on a contact weekend then the Father shall have no contact with the children on that day and the Father to deliver the children to the Mother by 9.00 am;
(e)On each alternate weekend from 6.30 am Friday to 8.30 am Monday; and
(f)At all other times, including the Father’s Birthday as agreed between the parties.
(4)For the purpose of exercising contact, the Father shall collect the children from S A’s Church at W on the Friday evening and return the children to school on the Monday morning.
(5)The Mother is to provide the children with an evening meal on the Friday of a contact weekend and the Father is to provide the children with breakfast on the Monday morning and the father is to provide the children with either lunch or sufficient money to buy their lunch at school on the said Monday.
(6)The Mother is to ensure that the children have sufficient clothing, school uniforms and any necessary equipment that they require for each contact weekend and the following Monday at school when the contact commences on the Friday evening.
(7)Neither parent is to physically discipline the child C I B.
(8)Neither parent is to discipline the children E A B or S P B by means of any physical blow to the head or neck.
(9)Neither party shall denigrate the other party in the presence of all or any of the children, nor shall either party cause any third party to denigrate the other party in such circumstances.
(10)The Mother shall facilitate any desire expressed by the children to telephone the Father.
(11)In the event that the Father is unable to exercise contact in accordance with these orders, he shall be entitled to such compensatory contact as agreed between the parties, provided that he has provided written notice of his inability to exercise that contact a reasonable time beforehand.
(12)In the event of either party wishing to travel interstate with the children, that party shall give 14 days notice in writing to the other party and provide the other party with details of accommodation and telephone numbers, and either party shall facilitate the desire of the children to telephone the other party.
(13)In the event of either party wishing to travel overseas with the children, that party shall give the other party one month’s notice in writing of that intention together with details of accommodation and telephone contact numbers.
(14)As far as possible, the parties shall communicate with each other in writing, which may include messages by the use of a facsimile machine.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
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