G and B - [2003] FMCAfam 371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & B

[2003] FMCAfam 371

FAMILY LAW – Children – contact – best interests – when supervision necessary.

CHILDREN – Specific issues – orders – father’s name to be placed on birth certificate.

EVIDENCE – Admissibility – evidence in affidavit of statement made in confidential counselling inadmissible.

Family Law Act 1975 (Cth), ss.60B, 62F(8), 65E

Bright & Bright v Bright & Mackley (1995) FLC 92-570

Applicant:

S A G

Respondent:

R S B

File No:

PAM 4528 of 2002

Delivered on:

11 July 2003

Delivered at:

Parramatta

Hearing date:

9 July 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Peter White & Associates

Solicitors for the Respondent:

O. Niemanis & Company

ORDERS

The Applicant father is to have contact with the child M J B born
14 April 1997:
(a)each alternate Sunday from 9.00 am to 4.00 pm;
(b)from 9.00 am to 4.00 pm on Father’s Day in each year;
(c)for not less than two hours on the said child’s birthday;
(d)for not less than two hours on Boxing Day in each year; and
(e)at such other times if any as the parties shall agree.
If the Applicant is unable to exercise contact pursuant to these orders he is to give the Respondent not less than 48 hours notice in which case the parties are to arrange an alternative period of contact within one (1) month.
Contact is not to be exercised on Mother’s Day in each year.
For the purpose of exercising contact pursuant to these orders, the contact changeover place is to be at the N R Area, D, New South Wales.
The Respondent mother is to do all such things and sign all such documents as shall be necessary to cause the father’s name to be entered on the Register of Births Deaths and Marriages as being the father of the said child within one (1) month from the date of this Order.
The Application for the Respondent to be dealt with for an alleged contravention on 11 May 2003 of the Interim Orders made on
20^th February 2003 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 4528 of 2002

S A G

Applicant

And

R S B

Respondent

REASONS FOR JUDGMENT

Application

There are two applications before the Court in this matter. The original application was an application by the father for orders relating to the parties child M J B who was born on 14 April 1997. The application was filed at this Court on 25 November 2002 and was returnable on

13 January 2003. In the application the father sought orders that the child M should continue to reside with the mother. He sought orders however relating to his contact with the children on both an interim and a final basis. The contact orders that he sought were those that could be characterised as being relatively standard contact orders and they were; first, alternative weekends from 6 pm Friday to 6 pm Sunday with an extension to a Monday if it was a public holiday; half of the school holiday times during the year; three weeks during the Christmas school holidays; three hours on the child's birthday; contact on Father's Day and contact not to be exercised on Mother's Day. He also sought orders on a final basis that the mother should sign all documents and attend to all matters necessary to cause the father's name to be entered on the Registry of Births Deaths and Marriages as being the father of the child.
There were interim orders made in this Court which provided for interim contact. Those orders were made on 20 February 2003. There was a final order made on that day by consent that the child M should reside with the mother. The interim orders provided for contact from 10 am to 2 pm each alternate Sunday commencing on Sunday 2 March, contact to take place at P Park or another neutral venue agreed by the parties. Contact was to be supervised by the mother or an adult person nominated by the mother, the father was not to consume alcohol or administer any prohibited drug to himself during contact and arrangements made for telephone communication. The father was not to attend the mother's residence and those were the orders that were put in place.
The other application that was made was a contravention application. It related to contravention of the order alleged to have taken place on Sunday, 11 May of this year when the father says that the mother failed to make the child available at the designated place for contact at 10 am and the facts of this basically were that the father had waited for a period of time, the mother and child did not appear, the father left.

The mother arrived late, there were negotiations about make-up contact and a couple of occasions were offered but the father was unable or unwilling to accept and the mother then declined to make further time available so the contact was missed.
The proceedings before me which were heard on Wednesday, 9 July, concentrated quite sensibly, not on the contravention of the interim orders but on the substantive application. The circumstances are that the parties had been in a relationship, not a live-in or a married relationship, but a relationship, which led to the birth of the child M. There were disagreements between the parties and the relationship broke up. The parties never resided together as parents of the child. It is a point of some contention with the mother that on her evidence she wished the father's name to be entered on the Register of Births Deaths and Marriages as the father, but at that stage the father either declined or was otherwise unwilling to do so. The mother then had to make other arrangements.
Very little contact took place in the ensuing time and it was also a concern of the mother's that the father had paid very little in the way of child support. Now child support and contact are not connected, which has been a trite principle of law ever since the Family Law Act came into force on 5 January 1976, but it is not surprising that a party who undertakes the responsibility for the care of the child would feel a rightful grievance at not receiving adequate support for the child.
The father has for a considerable period of time been unemployed.

He has had some employment since he left school, he has some qualifications, indeed he undertook a science degree and completed approximately 18 months of it but did not finish the course.

He intends, he has given evidence, to undertake an IT course through the local TAFE College but that course is not scheduled to commence until 21 July. He is hoping to get some credits in the course.

The father has had employment for approximately two years with Australia Post but that was a considerable time ago.
There is a child support assessment in place at the moment and for some considerable time the father was assessed to pay the minimum, which is the amount required on people who receive a benefit, and that is an amount of $21.67 per month. It goes without saying that $21.67 per month provides very little in the way of support for a child.
The mother has formed a new relationship. The man with whom she has formed the relationship with whom she now resides is engaged to be married to her and she to him. He is in secure employment, he is employed as a police officer. He has adopted the stepfather role in respect of the child M, and the mother's evidence is that there is a good relationship between M and the man whose name is S. Indeed the evidence is that M, on the mother's evidence at her own request, addresses S as dad, and refers to the applicant, who is her natural father, as S.
The mother's fiance, S, was present at Court in a capacity as a support person, he was not on affidavit and did not give evidence, surprisingly perhaps, but he did not. The evidence indicates that S has played some role in contact negotiations as far as the administrative side is concerned and has played some role as a supervisor. There is no evidence which would lead me to form the view that there is an antagonistic relationship between S and the father and indeed there is a description of them, hearsay evidence but not objected to, there is a description of them walking together in a particular park whilst the child was riding on a bike. I will deal more with that incident shortly.
As I said there were interim orders made by me in fact on 20 February to establish a regime of contact. There had been very little contact, although the evidence is that the father had been seeking contact for a period of time. There is evidence of negotiations relating to contact conducted by the father's previous solicitors in 2002 and in fact there had been e-mail communication and written communication from late 2001. The mother had raised certain objections to the father including in her view a lack of responsibility generally and a tendency to consume alcohol to excess and she raised views about the unsuitability of his family and his own unsuitability to adopt the role of a father.
The contact orders made on an interim basis commenced on

20 February with the first contact to be on 2 March. The evidence before me indicates that the contact with the one exception that is referred to in the contravention application seems to have gone according to the way the orders designed it to be. It was the father's evidence that except on 11 May that the mother had attended promptly at the contact changeover place, his evidence was that she would either attend on time or even a minute or so early. It was for that reason, of course, that he said that when after 22 minutes after the appointed time she had not appeared he certainly formed the view that there were difficulties there. There had been difficulties in that the father indicated he was not available on one occasion to be present for contact for the entire period of time and a short period of time was negotiated.
One arrangement that did seem to be followed was that the parties decided that P Park, the original negotiated place, as provided by the orders, was no longer suitable due to the fact that the park is kept in a poor state of repair, that there is apparently broken glass and the parties decided it was not a suitable place for regular contact to take place. Order (2) made on an interim basis on 20 February provided that contact could take place at another neutral venue agreed by the parties. The parties agreed that N R area at Doonside would be suitable and contact has taken place at that venue since then.
I did make an order, which was order number (4) on an interim basis that the father was not to consume alcohol or administer any prohibited drug to himself during or for two hours prior to any period of contact. The evidence of the mother was that as far as she could see the father had complied with that order, he had not attended on contact on any occasion to her mind at least, affected by alcohol or a prohibited drug. As the evidence was that the mother has on most, if not all occasions, been accompanied by her fiance who is a police officer, it would appear to be a reasonable inference that if the father had attended under the influence of alcohol or a drug that the mother's fiance would have been capable of detecting that quite quickly. I can take judicial notice of the fact that police officers in the course of their employment are obliged to deal frequently with people who are affected by alcohol or a drug and acquire by experience a certain facility in detecting such symptoms.
What the father seeks however is that there should be more than the contact as set out in the interim orders. He takes the view that the contact is restrictive and indeed it imposes a significant strain on the mother, the father and the mother's fiance. It requires two of the parties and in many cases the mother's fiance to be present in the one place at the one time for a period of four hours. That causes a degree of difficulty as far as other commitments are concerned. Both the mother and her fiance, in the course of their employment, are obliged to work shift work and it is not always easy for people on shift work to make other arrangements.
The father does not have the same commitments on his time, as he is not in employment. He has some commitments towards minding his nieces and he has some commitments in respect of football himself, but otherwise, as he is not in employment, his time would seem to be to be more flexible. It seems unusual therefore that he was not able to exercise contact at some other time as when he was cross-examined by Mr Neimanis about the commitments on his time. His evidence did not allow me to draw an inference that he has a full week. In fact he found difficulty to explain at times what he did do on some of the days of the week.
The fact is that the father seeks a more "normal", contact arrangement; he seeks overnight contact, he seeks block school holiday contact, he seeks contact on other occasions. He does not see the need for contact to be supervised and perhaps, belatedly, he seeks to be recognised on the child's particulars of birth as the child's father. In short he seeks to be identified as the father and it is quite clear that in his mind that the mother's fiance, S, should be regarded as the stepfather.
I look at the principles that must be applied in contact proceedings.

A Court exercising jurisdiction under the Family Law Act must bear certain matters in mind when dealing with contact applications. Section 60B of the Act states:
The object of Part VII of the Act is to ensure that children receive 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.
Section 65E of the Family Law Act makes it clear:
In deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration when deciding whether to make a particular parenting order.
A consideration of the factors in s.68F(2) will help the Court arrive at this decision. Section 68F(2) provides for a number of matters for the Court to consider in order to ascertain what is in a child's best interests. Not all of them will be relevant in every case of course but the Court must give consideration to them.
One issue of course is any wishes expressed by the child. That will of course depend on the child's age and the child's state of maturity and child’s maturity, sex and background of course are also considered in paragraph (f) sub-s.68F(2). The child in contention here is a little girl aged 6. As I said there are no independent views although a view of wishes of a child as young as six would not be held to be irrelevant. The mother's view is that the child has a strong relationship with her

step-father that she does not wish to extend contact and that the child has not expressed any wish about for that matter having the father's name placed on the birth certificate. The mother is of the view that that is a decision that the child should make when the time comes, ie when she is old enough.
I look at the nature of the relationship with each of the child's parents, which is set out in paragraph (b) of sub-s.68F(2). M has lived with her mother all of her life, she has had very little contact with her father at all until a limited contact regime was put into place in February of this year. The father wishes to pursue the relationship although it is clearly a fact that the mother has always been the primary carer.
I look at the likely effect of any changes in the child's circumstances. The mother is of the view that the child is well settled in her current home life. She expresses some concerns over any significant changes to the contact arrangements that are currently in force and indeed the final orders that she seeks are not dissimilar to those that are currently in force. Her evidence was that the child was well adjusted and happy and she expressed certain concerns about the psychological effects on the child. She said in her affidavit of 23 June:
I am concerned for the welfare and best interests of my daughter and in particular I am concerned that any increased contact that proposed by me will detrimentally prejudice the emotional and intellectual needs of M and expose M to physical and/or psychological harm as a result of the applicant's overall circumstances.
She goes on to say:
I am also concerned that the applicant does not exhibit acceptable responsibilities of parenthood. I am concerned that increased involvement between M and the applicant will destabilise her emotional well being which is extremely well adjusted in her current circumstances.
I will deal with that issue in greater detail shortly.
I look at the practical difficulty and expense of a child having contact with a parent. There is no great distance between the parties as far as I can ascertain as far as where they live. The mother wishes to keep her address a secret but the reality is they both live in suburbs of Sydney and contact has been able to take place according to the interim orders with both parties being able to get there and get the child there without any difficulties.
The mother is critical of the capacity of the father to provide for the needs of the child, which is a factor I should consider under paragraph (e) of s.68F(2). She says he has not undertaken any formal parenting course, which he concedes, she has not either but she has had on the job training as the child's primary carer all the child's life. She is critical of his ability to supervise the child. She refers to one occasion where the child got wet on contact, the father sought to dry her down with sheets of newspaper when there was a towel available. She indicated that that was something which gave her some distress.
She also referred in hearsay evidence to a circumstance where the child was on her bike at the park, the father and the mother's fiance were walking and they both lost sight of the child. The mother did not but the father did and the child was out of sight of the father and the mother's fiance for approximately 10 minutes. The mother characterised that as failure by the father to exercise proper supervision. Of course the mother's fiance was also not in a position where he could see the child and was not aware that the mother could see the child until later.
The mother prepares for these excursions to the park with a great deal of care. Her evidence was that she takes a towel, water, enough food for a week and a first aid kit which is more than adequate one would have thought for an excursion to a park for some four hours. Her view is that the father has had very little experience in parenting, notwithstanding the fact that he minds his nieces for two to three hours each week and that she would be most reluctant to allow unsupervised contact to take place.
She was not able to indicate a time when unsupervised contact would take place. The child is 6. I asked her from the Bench as to whether contact could be unsupervised when the child was say 16 and she indicated that she was not able to answer, to give a time as to when she believed the child would be old enough for unsupervised contact to take place.
The mother is critical of the father's home environment. She has not been there but is of a view that the child should not be able to be there. The father lives with his parents, although there is evidence that the paternal grandfather is hospitalised as he has been suffering from cancer for some considerable time. The mother is concerned that there could be some psychological harm occasioned to the child in the child coming into contact with the father's extended family. No criticism is made of the father's mother, ie. this child's paternal grandmother, but the mother is concerned about exposure of the child to the grandfather with cancer.

There is another adult who lives at the moment in the father's home, which is the father's sister, L. She has four children. She is separated from her de facto, one T P, and has separated from him in somewhat acrimonious circumstances. Her allegation is that Mr P had been responsible for some sexual assault on her eldest daughter, C. C is not the daughter of Mr P. Mr P was in fact charged by the police with a couple of counts of aggravated sexual assault on the child, although those charges were subsequently dismissed. There is evidence that there has been other litigation between Mr P and the mother relating to parenting orders and relating to property orders.
The mother however has spoken to Mr P and it is from him that she has obtained some impressions of the circumstances that occur in the father's residence. It would appear to me that Mr P could hardly be relied upon as an unbiased observer, or even an accurate observer.

He does not reside in the household and indeed as a person who has been accused, although certainly not convicted of a sexual assault on one of the children, it is quite likely that he would be most unwelcome. Bearing in mind that there has been litigation in the form of criminal proceedings and civil proceedings relating to parenting and property proceedings between the father's sister L and Mr P, I find it hard to believe that the hearsay evidence of Mr P as to the circumstances in the father's residence can be in any way reliable.
I am obliged to consider questions of family violence and whether there is any family violence order, there is none. There are no allegations of violence that are relevant to these proceedings, although as I said there are allegations of violence in respect of the child C and the step-father of sexual assault and the stepfather T P. They would not seem to me to be relevant circumstances in respect of the father's contact with his daughter.
What then is the situation. It is clear that the mother has a longstanding and continued animosity towards the father. Her attitude to the father's name being entered on the particulars of birth was to the effect that he was given the opportunity when the child was born and unwisely declined to do so. As a result he has now lost that opportunity and the decision as to whether the father's name should be entered on M's particulars of birth is now one which should be left to her. She is currently 6 years of age and not surprisingly she has not mentioned any particular desire.
Well of course a decision as to whether or not one has one's father's name entered on one’s birth certificate is not a right given to most children and indeed it would be somewhat surprising if it were, but it is in fact a fairly normal circumstance. I was not satisfied with the mother's reason and indeed I was of the view that her reasons were in fact disingenuous.
Should there be supervised contact? Supervised contact is necessary if there is a danger of abuse or violence either to a parent or to a child or if there is a danger that a party would say abduct a child. There is no evidence of this whatsoever. There is no evidence that the father is violent or has any propensity towards violence, either towards the mother or towards the child. Indeed I find it unusual that the mother was not in a position to indicate any particular time when she considered that the supervision arrangements which had been in force on an interim basis could be relaxed. Supervision was ordered due to the fact that the child had had very little contact with the father and she would quite understandably feel strange and perhaps awkward in his company. That was February, this is July. There has been regular contact ever since with the exception of the one difficulty referred to in the father's contravention application. The child sees the father and knows that he is the father on a regular basis. He is a feature in her life and there is no evidence that he poses any danger to her whatsoever.

I cannot see any reason why supervised contact should be continued on a final basis.
What should the contact arrangements be? I am mindful of the fact that the father's contact with this child has been very little for one reason or another until the orders were made in February of this year, and I am also mindful of the fact that the father's contact has been limited and perhaps somewhat artificial under the regime proposed by the interim orders. The father has given evidence that M has seemed somewhat reticent in recent weeks. It may well be that she is getting somewhat bored with four hours of supervised contact in a park every fortnight which must have a certain sameness about it.
There is no evidence given as to why this child should not be able to have contact with her extended family; her aunt, her grandmother or depending on the circumstances of the paternal grandfather's health, the paternal grandfather. It has been held in the Family Court in the 1995 decision of (Bright and Bright and Bright and Mackley) that there is a benefit in the children having contact with extended family, particularly grandparents, as it makes them aware that they are part of a wider family group and children can gain benefit from the interaction with grandparents which is different from the interaction with parents themselves.
I am not satisfied, however, that at this stage that there are grounds for overnight contact or block school holiday contact. There just has not been enough contact between this little girl and her father. He should be able to see her without the need to be supervised and he should be able to take her to somewhere other than N R area. There is no reason why she should not be able to meet with the cousins. I did ask the mother in cross-examination as to whether there is any difficulty relating to the child who had been apparently sexually assaulted. It is certainly not the fault normally of children if they become the victims of a sexual crime.
I am of a view that it will take a considerable period of time for there to be a full and complete contact arrangement but the current interim arrangements to my mind have served their purpose and have run their course. There is a need for this father to interact with his daughter on a more normal basis without the need for his being supervised and without the need for such strict restrictions to be placed on the location as to where he exercises that contact.
There appeared in the father's affidavit of 26 June a reference to some conversation that took place when the parties attended counselling. What was said in counselling is confidential and in fact provided so by s.62F(8) which provides:
That evidence of anything said or any admission made at a conference that takes place pursuant to an order under subsection (2) is not admissible:
(a) in any court (whether exercising Federal jurisdiction or not).
On the basis of that I disallowed the statements referred to in that paragraph of the affidavit.
As far as the contravention is concerned on considering all of the evidence I am not satisfied on the balance of probability that the respondent contravened the orders without reasonable excuse. I make the orders set out at the beginning of this judgment.
I require a transcript of my reasons for this decision. I can indicate that copies of the orders will be made available to the solicitors for the parties.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 29 August 2003