C and C
[2000] FMCAfam 61
•8 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2000] FMCA fam 61 |
| CHILDREN – Contact – Best interests – Orders – Changeover |
| Applicant: | R J C |
| Respondent: | S T C (known as G) |
| File No: | ZP351 of 2000 |
| Delivered on: | 8 November 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 26 October 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person |
| The Respondent in person |
ORDERS
Orders 3(iii),(iv) and (v) made by the Family Court of Australia at Parramatta on 14 December 1999 and as varied by consent by the said Family Court on 10 April 2000 shall be suspended;
The Applicant father shall have contact with M W C born 27 August 1986, L A C born 5 April 1988 and D K C born 2 December 1990:
(a)Each Sunday from 9.00 am to 6.00 pm, with the exception of Mother’s Day; and
(b)On Thursday 9 November 2000 from 4.00 pm to 6.00 pm.
Order 3 (ix) made by the Family Court of Australia on
14 December 1999 and varied by consent on 10 April 2000 shall be vacated;For the purposes of any contact, changeover is to take place at the McDonalds Restaurant at M, and the mother may be accompanied by her sister V G and no other person;
The mother shall within 7 days from today authorise the Principal of each school attended by the said children to provide the father with a copy of the children’s school reports as they fall due and inform the father of any school activities which parents are invited to attend; and
The mother shall inform the father of each organised sporting activity which the children engage in within 7 days.
The said children are to be separately represented in these proceedings and the Legal Aid Commission of New South Wales is requested to arrange such representation within one month from today.
This matter is adjourned to Monday 11 December 2000 at 10.00am for further mention.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 351 of 2000
| R J C |
Applicant
And
| S T C (known as G) |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father to vary contact orders made by the Family Court of Australia at Parramatta on 14 December 1999 and
10 April 2000. The orders sought at the hearing on 26 October 2000 vary from the interim orders sought in the father’s application. After some discussion, the orders actually sought are:
a)That the mother and father have equal responsibility for the day to day care, welfare, and development of the children;
b)That contact take place every Sunday from 9.00 am to 6.00 pm, with the pick-up and delivery point being changed to the C Police Station;
c)That the mother is to ensure that her parents, her sister, her brother in law and her friends are not present when the children are picked up and delivered before and after contact;
d)That the children are to telephone the father between 7.00 pm and 8.00 pm each Tuesday unless there is other agreement;
e)That the father be informed of the children’s schools and school activities;
f)That the father be issued with details of the sport itineraries for each child; and
g)That the mother continue to use the children’s surname of C and not unilaterally change the children’s surname to G, the name to which she has chosen to revert.
The mother agrees that the father should be informed of the relevant school information for each child, but does not agree with the other six orders sought.
Background
The parties separated, acrimoniously, in February 1999, and there has been a considerable amount of litigation between them since then. There are mutual Apprehended Violence Orders in force from the C Local Court, and an application to vary one of these orders is listed for hearing at C on Monday 6 November.
After a hearing in the Family Court, Flohm J made a series of orders on 14 December 1999, providing that the parties’ two sons, M (born 27 August 1986) and L (born 5 April 1988) and their daughter D (born 2 December 1990) were to reside with their mother, who was to be responsible for their day to day care, welfare and development. A detailed set of defined contact orders was made, which included a six month period of supervised contact on one day each week, followed by a further six month period of contact each Sunday, which would then become alternate weekend contact, commencing after
14 December 2000.
Other orders were made that the parties should attend family therapy and family support with a nominated organisation, which indicates the degree of acrimony between them.
Those orders were varied by consent on 10 April 2000. The variations were to the effect that supervised contact could be on a Sunday, that the contact changeover point after the supervised contact was to be the McDonalds Restaurant at M, and that telephone contact was to take place at a time other than on Friday afternoon or evening with the mother with the mother facilitating the contact by the children telephoning their father.
The parties’ proposals and orders sought
The father’s proposals are set out in paragraph 1 of this decision. With the exception of the order that the father should be supplied with information about the children’s schools and school activities, the mother’s attitude was that the original orders should remain unchanged.
The conduct of the hearing
Neither party was legally represented. The father had filed a Form
7 Application and a Form 8 Application for Final orders. He had also filed an affidavit, which consisted mainly of references to either the orders sought or to material already filed in the previous Family Court proceedings, with the exception of the one statement “Children are subject to verbal abuse”. The mother had filed no documents.
Whilst the children had been separately represented in the Family Court, an order was not made for their representation in this Court, although the mother had originally made that application, which the father opposed.
The Federal Magistrates Court adopts a flexible approach to the hearing of interim applications, rather than imposing one particular procedure which may not suit the requirements of the particular case. In this instance, due to the comparative lack of formal pleadings and the fact that neither party was represented, it was considered appropriate to proceed by way of oral submissions.
Care, welfare and development of the children
Under the present orders, the mother has the responsibility for the day to day care, welfare and development of the children, but the father seeks that this responsibility be shared. His reason for this is that the mother would not then neglect to inform him about matters relevant to the children.
I am not satisfied that this would be a workable arrangement. There is an obvious, continuing hostility between the parties, which has manifested itself on each occasion that they have been together in court. Whilst they both say that they “moved on” from the acrimony which surrounded their separation, it is clear that that neither of them has; there are unresolved issues such as the mother’s sense of grievance over the property arrangements and the husband’s anger that he is unable to work as a security guard due to the current AVO against him. As mentioned previously, an application to vary an AVO is due to be heard on 6 November.
Bickering and point scoring have marked the conduct of the parties towards each other in court, although neither has been other than courteous to the Bench. There were rare moments of agreement, much to each other’s surprise. In the face of this ongoing atmosphere of suspicion and hostility, ordering that the parties should share the day to day decision-making would undoubtedly lead to further conflict.
Contact changeover at C Police Station
The father seeks that the changeover point for contact should cease to be McDonalds at M and should become the C Police Station, because of the incidents of abuse and arguments which occur when the mother’s friends or relatives accompany the mother. He says that the C Police Station provides a facility for the changeover of contact. The mother suggests that the Police Station at M F would be preferable, because its layout allows each parent to approach from a different direction and the children could then go from one parent to another without the parents having to approach one another (a scenario reminiscent of the exchange of prisoners at an international border crossing point).
It should be made clear that the Court must place the best interests of the children above any other consideration, and I am not satisfied that there has been shown any reason for contact changeover to take place at a police station at all. I note that the mother says that the children have no fear of the police, but as there are apprehended violence orders in place covering both parents, a changeover at a public place such as McDonalds should meet the need for security and not increase the perception in the children’s minds that there is a Cold War between their parents.
The application that the mother’s friends and relatives should not attend at contact changeover
The father seeks that the mother should attend the contact changeover alone, without her parents, sister, brother in law or friends accompanying her, saying that when she attends by herself there are no arguments but when any of the others accompany her there is an outbreak of hostilities. He particularly cites a M D, whom he accuses of swearing a false affidavit in the earlier Family Court proceedings, and whose activities are apparently the subject of a complaint to the Director of Public Prosecutions. The mother says that her sister often drives her and the children to McDonalds for the contact changeover. The father concedes that the sister “is not a problem at the moment”. I note that Flohm J ordered on 14 December 1999 that the mother’s parents should have no contact with the children for one month.
There appears to be no need to forbid the mother’s sister to drive her to and from the contact changeover point, although it is not clear why other people need to attend.
Telephone arrangements
The father complains that, despite the orders made on two occasions about telephone contact, the children do not ring him. The mother told the court that there is no public telephone nearby, but that there is a telephone at the boys’ school, and they could ring him if they wanted to, an explanation I found less than convincing. I am not satisfied that, without extensive evidence and cross-examination, any change to the existing order would produce any appreciable improvement. I make no order at this stage, but the matter will be revisited on the final hearing.
Children’s sport
The father seeks an order that he be kept informed of the children’s sporting activities, particularly in respect of the child L, who played soccer last season. The mother opposes this, giving as her reason the fact that the football season has finished for the year and it had not been decided whether L would play next season. I see no reason why the father should be aware of the children’s sport; the children might well like their father to watch them play sport, most children do.
The children’s surname
The father complains that the mother has unilaterally started calling the children by her name of G, to which she has reverted. He said that he had seen a statement by the child L, on which his name was shown as ‘G’ instead of ‘C’. The mother’s explanation was that the a person from the Registry of Births, Deaths and Marriages told her that she was allowed to call the children by that name if she wished, and she was not seeking to change their names on their birth certificates. This is more appropriately a matter for evidence at the final hearing. I make no interim order.
Contact
The father says that he accepts that the children are not comfortable with the idea of overnight contact at this stage and he does not wish to press the issue, preferring to continue with contact each Sunday until the children are more settled. The mother says that the children do not wish to stay overnight with their father.
Whilst the father’s position on this issue shows a commendable concern for the children’s best interests, the problem arises that Sunday contact with the father means that the children would not spend Mother’s Day with their mother. The father concedes that this is a problem and is willing to compromise on this point. The mother agrees that, where the father’s birthday does not fall on a contact day, then the children could spend the evening with their father. The father’s birthday is on 9 November. I am satisfied that contact should proceed on a one day per week basis for the time being, subject to the exceptions which have been referred to.
The final hearing
The acrimony between the father and mother leads to the inference that a final hearing will involve the taking of detailed evidence. There was a family report prepared for the hearing in the Family Court last year and the children were separately represented. The parties have had further confidential counselling with a Family Court Counsellor, but remain steadfastly at odds. I am satisfied that the children should be separately represented for the final hearing, especially as it appears that neither the father nor the mother are likely to be represented.
The parties may benefit by attending a program such as the “Keeping in Contact” program, but this issue should be decided until the children are separately represented.
Orders
I propose to make the interim orders set out in the Annexure to this decision.
Until further order
(1)Orders 3(iii),(iv) and (v) made by the Family Court of Australia at Parramatta on 14 December 1999 and as varied by consent by the said Family Court on 10 April 2000 shall be suspended;
(2)The Applicant father shall have contact with M W C born 27 August 1986, L A C born 5 April 1988 and D K C born 2 December 1990:
(a)Each Sunday from 9.00 am to 6.00 pm, with the exception of Mother’s Day; and
(b)On Thursday 9 November 2000 from 4.00 pm to 6.00 pm.
(3)
Order 3 (ix) made by the Family Court of Australia on
14 December 1999 and varied by consent on 10 April 2000 shall be vacated;
(4)For the purposes of any contact, changeover is to take place at the McDonalds Restaurant at M, and the mother may be accompanied by her sister V G and no other person;
(5)The mother shall within 7 days from today authorise the Principal of each school attended by the said children to provide the father with a copy of the children’s school reports as they fall due and inform the father of any school activities which parents are invited to attend; and
(6)The mother shall inform the father of each organised sporting activity which the children engage in within 7 days.
(7)The said children are to be separately represented in these proceedings and the Legal Aid Commission of New South Wales is requested to arrange such representation within one month from today.
(8)This matter is adjourned to Monday 11 December 2000 at 10.00am for further mention.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date:
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