EC and HSA
[2006] FMCAfam 408
•18 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EC & HSA | [2006] FMCAfam 408 |
| FAMILY LAW – Children – contact – application to vary contact orders – where contact between father and child has been sporadic. |
| Family Law Act 1975, ss.65DAA ,65L1(b), 60CC |
| Applicant: | C E |
| Respondent: | S A H |
| File Number: | BRM 9061 of 2002 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 July 2006 |
| Date of Last Submission: | 18 July 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 18 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ferguson |
| Solicitors for the Applicant: | Georgeson & Co |
| Counsel for the Respondent: | Mr Turnbull |
| Solicitors for the Respondent: | WHD Lawyers |
ORDERS
UNTIL FURTHER ORDER
pursuant to Order 2 made on 5th August 2005 the father is to have contact with the child, K E E, born 3rd April 1999 as follows:
(a)by telephone each Thursday evening for a period of not less than 10 minutes between the hours of 6 pm and 6.30 pm which will take place by means of the father telephoning the mother's mobile telephone number commencing on 20th July 2006 and;
(b)between the hours of 3 pm and 5 pm on Sunday, 30th July 2006 and each alternate Sunday thereafter provided that the father provides to the mother a telephone number upon which he can be contacted and his residential address in Queensland, such information to be provided to the mother's solicitor in writing by 5 pm on Thursday, 27th July 2006.
Order 7 is varied so as to provide that the changeover venue for all contact is to be the area adjacent to the S O opposite the N in the market area of S B P.
The application is adjourned until 29th August 2006 for further mention and directions before Baumann FM at 10 am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9061 of 2002
| C E |
Applicant
And
| S A H |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application to vary some parenting orders which were made in this Court on 5th August 2005. The particular orders sought varied relate to the contact, to use the term under the previous legislation, by the father with the child of the parties, a little boy who was born on 3rd April 1999. The child concerned has lived with the mother throughout his life and there has been contact to varying degrees over that period of time.
The proceedings have a considerable history before this Court but it is not to my mind necessary to go behind the orders that were made by my colleague, Baumann FM, on 5th August 2005.
The father is a citizen of Canada, though on the affidavit material he has permanent resident status in this country. The mother is a citizen of this country and there were orders made requiring the Australian Federal Police to place the name of the child on the airport watch list and there were orders made relating to various matters concerning the welfare of the child, and for that matter, the welfare of the mother.
There is a Family Violence Order in force; which was made on
5th August 2005 containing an injunction preventing the father from communicating with the mother, other than to arrange contact with the child by means of telephoning the mother's mobile telephone number.
These proceedings have arisen because the father alleges that the mother has been obstructive in regard to his contact to the child.
The mother has said the father has exercised contact in a sporadic manner. The father says that the mother has denied all face to face contact with the child since October 2005 and says that there has been no telephone contact since February 2006.
These proceedings appear to resemble contravention proceedings except that an examination of the order sought to be varied would indicate that it is an order that would be very difficult to deal with by way of contravention procedures. The particular order described by the father's solicitor, Mr Ferguson, as a "default order" says this, and I quote:
That the father have contact with the child at all such times and dates as can be agreed or as determined by the Honourable Court.
There has been no agreement between the parties in recent months about the terms of the contact to take place. The father's solicitor has described the mother's attitude as saying:
If you don't agree with me there will be no contact.
Mr Turnbull for the mother denies that that is the effect of the mother's approach and in fact denies that there has been a denial of contact.
He describes the situation as one where the mother and father cannot always see eye to eye about the sort of contact that would be beneficial for the child. With respect, that appears to me to be an understatement.
The mother, through her solicitors, has prepared a response which basically provides that the father's application should be dismissed with costs. What has been put to me, however, is that the mother has offered a regime for face to face contact and has offered telephone contact and, indeed, in correspondence as recently as 17th March this year, had made certain proposals as far as contact is concerned. For the father, Mr Ferguson, puts to the Court that an offer of contact containing unreasonable conditions is not an offer of contact at all.
The mother says that the reason that contact has been sporadic and in fact sparse is due to the failure of the father to exercise contact or seek to exercise contact appropriately. In her affidavit she relates incidents which deal with the father's unreliable attitude and provides some hearsay evidence obtained from the father's school, mainly from the principal of that school about an attendance by the father on
10th February 2006 where, it is alleged, the father behaved in an aggressive way, apparently under the influence of alcohol.
The mother expresses concerns about the father's stability and, in particular, expresses concerns about the fact that the father has not disclosed an address or a telephone number at which she can be contacted. She has considerable reservations about the child having contact with the father if she does not know where the father lives or how he can be contacted. I do not consider that this unreasonable.
The mother's alternative proposal was that if the father was unwilling to disclose an address that contact on an interim basis could be supervised by her, although in my view that would impose an unreasonable strain on all parties, and I do not see it as viable.
The fact is that it is not the mother's case that there should be no contact between the father and child. The mother is submitting that there should be a system of contact which is reliable and which will contain appropriate safeguards for the child and also, in my view, for her peace of mind.
I am reminded by Mr Ferguson, for the father, the provisions of s.65DAA, s.65L1(b) and s.60CC of the Family Law Act, including the need for the child to have a meaningful relationship with his father. Whilst the Family Law Act has recently been amended quite substantially, the legislature has not seen fit to dispense with the principle that the best interests of the child should be a consideration firmly in the mind of the Court when making any parenting order.
In my view, the orders that were made on 5th August 2005, and which the mother, in her response, is asking should continue, do not set out a situation where the father and child should not continue a relationship but seek to provide for a structure of that relationship to be exercised in a way that would be consistent with the child's welfare.
In my view, this is a situation where, between now and such time as the matter can be heard on a final basis, that the Court should make orders in a way that are provided by Order 2 made by my learned brother on 5th August 2005. It certainly appears clear on the affidavit evidence and from the submissions of the parties' legal representatives that the parties, at least at this stage, are unable to agree on proper arrangements for contact between father and child. That is regrettable but that is a fact and it is not, however, a matter that should mean that this little boy should not have a relationship with his father.
Order 2 made on 5th August 2005 contains the express provision that if the parents could not agree or did not agree then contact arrangements would be determined by the Court. The order is an unusual one in that it provides an opportunity for the parties to go back to Court in order that there should be a determination of the appropriate arrangements for contact.
It appears to me that the current state of disagreement between the parties makes a determination by the Court a necessary and appropriate step. I propose to make some orders relating to contact, again to use the old terminology, under the power given to me by Order 2 and I do so, bearing in mind the need to provide for a firm and consistent relationship between the father and child, at least in the interim until this matter can be heard on a final basis and to provide the fact that father and child have had very little contact over a number of months.
I also propose to make orders which will enable the mother to be satisfied that her child is contactable, or at least the father is contactable, whilst he and the child are together. It is inappropriate, in my view, for a parenting order to be made where parties have no address or provide no address because it would make enforcement of such an order well nigh impossible if the Court were not aware of the location or the likely location of the parties.
Mr Ferguson for the father has indicated that the father will disclose his address and I believe that that is an appropriate course to be taken.
I also believe that it would be appropriate that disclosure to take place before the child spends time in the care of the father and, in my view, with the poor state of communication between the parties, it is my belief that that information should be conveyed to the mother's solicitor a reasonable time before the first face to face meeting between the father and child, so that the mother may be confident that she knows where the father can be contacted at the time when her child is with him.
It is also appropriate, to my mind, to reintroduce telephone contact as soon as possible and, as I indicated to the parties earlier today, I believe that telephone contact should start before the child spends time in the physical presence of the father. He is only seven years old. He has not spoken to his father for some months. For his comfort and well being he needs to get back on speaking terms with this father so that he can be comfortable in his father's company. That will be, not only to his benefit, but also to his father's and, in my view, that will add to the mother's peace of mind.
What I propose is to prescribe periods of telephone contact every Thursday commencing from this immediate coming Thursday,
20th July, and then to provide that after telephone contact has taken place on two occasions, that the father and child should again be able to meet on a face to face basis. In my view, after such an absence of face to face meeting, two hours would be sufficient at this stage, and I also propose to bring the matter back before Baumann FM who has dealt with the matter in some detail on previous occasions, so that his Honour can allocate a final hearing date and also make any necessary or appropriate alterations to the interim parenting arrangements. And I am aware that his Honour will be available to deal with this matter, at least on a mention and directions basis on 29th August this year, and I consider that that period of time would be sufficient for the arrangements that I propose to order to start and to settle down, and for any difficulties to be ironed out so that the parties' legal advisors can advise the Court at the end of August as to how things are going and what will need to be done.
I am quite happy to put in liberty to apply on five day's notice, if you like, so that if something needs to come back a little bit earlier for fine tuning you can get it back to the Court and you can make those arrangements after you see how the telephone contact goes and after your client knows what arrangements he is going to be required to do. After all it is good that he has been offered this job in his profession. So I think if I put in liberty to apply on five day's notice that can get the matter back to Court without having to wait until 29th August if it appears that there is a need for that to happen.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 8 August 2006
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