G and B (No.2) - [2002] FMCAfam 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & B (No.2)

[2002] FMCAfam 482

FAMILY LAW – CHILDREN – Proposal to remove children to another State – parenting orders – contact orders – planned relocation of mother – place of residence of child when one parent wishes to relocate – proposals of parents about residence and contact with child – mother seeks that there be no order for contact by the father – best interests of the child paramount consideration – child aged ten months at date of hearing – mother primary carer.

PRACTICE AND PROCEDURE – Children – parenting order – proposals of parents – powers of discretion of court not confined by proposals of parents.

WORDS AND PHRASES – “compelling reason”.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)

AMS v AIF; AIF v AMS [1999] HCA 26; (1999) 24 Fam LR 756; FLC 92-852
U v U [2002] HCA 36; (2002) 29 Fam LR 74
A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035
H v L [2000] Fam CA 752; (2000) FLC 93-036
Paskandy v Paskandy (1999) 25 Fam LR 607; FLC 92-878
SMG v RAM [1999] Fam CA 1845; (2000) FLC 93-020
Martin v Matruglio (1999) 25 Fam LR 510; FLC 92-876
B and B; Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755

Applicant:

A D G

Respondent:

J B

File No:

PAM 1633 of 2002

Delivered on:

20 December 2002

Delivered at:

Parramatta

Hearing Dates:

5, 6 and 8 November 2002

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Greenaway

Solicitor for the Applicant:

Watson Stafford

Counsel for the Respondent:

Mr Sweet

Solicitor for the Respondent:

J Spence & Associates

ORDERS

All earlier parenting orders are discharged.
The child T A B born 7 January 2002 is to reside with the Respondent mother who is to have responsibility for the care, welfare and development of the said child.
The parties are to do all such things and make all such arrangements as may be necessary with the Central West Contact Service at H Park to permit the Applicant father to participate in a supervised contact program.
The father is to have contact with the said child as follows:
(a)at the premises of the Central West Contact Service for periods of up to two hours a week at such times and on such days as the Central West Contact Service shall arrange, such contact to be supervised by the Central West Contact Service, until 30 June 2003;
(b)for a period of four (4) hours each Sunday until 31 December 2003;
(c)from and after 1 January 2004, from 10.00 am to 4.00 pm each alternate Sunday.
The mother is to deliver the child at the commencement of each contact period and is to collect the child at the conclusion of each contact period from the premises of the Central West Contact Service.
The father is not to arrive at the premises of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading G and B (No.2)

Details

AGLC: G and B (No.2) [2002] FMCAfam 482
Case: [2002] FMCAfam 482
Decision Date: 20 December 2002

CaseChat Overview and Summary

In the case of G and B (No.2), the parties were engaged in a dispute over parenting arrangements for their toddler son, T. The matter was heard and determined in the Family Court of Australia. The legal issues centred around the best interests of the child and the appropriate parenting orders to be made, considering various factors outlined in the Family Law Act. The mother sought a 'no contact' arrangement with the father and wished to relocate to Queensland, while the father sought regular contact with his son.

The court considered the statutory criteria relevant to the child's best interests, including the need to protect the child from harm, the capacity of each parent to provide for the child's needs, and the importance of the child maintaining a relationship with both parents. The court rejected the mother's claim that the father posed a threat to the child's safety, as there was no evidence to support this contention. It was also noted that the child's best interests would be served by maintaining a relationship with his father. The court emphasised the importance of the child developing a relationship with both parents and found that the mother's proposal for no contact and relocation would be contrary to these principles.

The court ultimately decided that the father should have regular supervised contact with the child, with arrangements made through the Central West Contact Service. The mother was restrained from relocating the child to Queensland until a specified date, and the father was restrained from approaching or contacting the mother outside of the legal process. These orders were made to ensure the child's best interests were met, allowing for a relationship with both parents while also addressing safety concerns.

The final orders of the court provided for the discharge of previous parenting orders, specified the child's residence with the mother, outlined the supervised contact arrangements with the father, and imposed restrictions on the father's contact with the mother and the mother's relocation of the child's residence. These orders aimed to balance the child's need for contact with both parents while ensuring his safety and well-being.

Orders

Orders of the court

All earlier parenting orders are discharged.

The child T A B born 7 January 2002 is to reside with the Respondent mother who is to have responsibility for the care, welfare and development of the said child.

The parties are to do all such things and make all such arrangements as may be necessary with the Central West Contact Service at H Park to permit the Applicant father to participate in a supervised contact program.

The father is to have contact with the said child as follows:

(a) at the premises of the Central West Contact Service for periods of up to two hours a week at such times and on such days as the Central West Contact Service shall arrange, such contact to be supervised by the Central West Contact Service, until 30 June 2003;

(b) for a period of four (4) hours each Sunday until 31 December 2003;

The mother is to deliver the child at the commencement of each contact period and is to collect the child at the conclusion of each contact period from the premises of the Central West Contact Service.

The father is not to arrive at the premises of the Central West Contact Service any earlier than five (5) minutes prior to the commencement of contact and he is not to remain at or in the vicinity of the said premises at any time after the conclusion of each contact period.

The mother is restrained from changing the child’s place of residence outside any point North of Brooklyn, West of Lithgow or South of Port Kembla prior to 1 July 2004 without leave of the Court.

The father is restrained from entering or going within 200 metres of the mother’s place of residence at any time.

The father is restrained from approaching or contacting the mother at any time other than through his legal representative.

Background

Background to the litigation

S.68F(2)(f) – the child’s maturity, sex and background. T is still only a toddler. There is no issue about the fact that he should reside with his mother. This factor is a constant across all proposals. S.68F(2)(g),(j)(etc) – the need to protect the child from physical or psychological harm, family violence etc.The mother alleges that the father poses a threat to the child’s physical safety. I have already rejected her contention, as there is no evidence of this fact. There is no Apprehended Violence Order in force. The mother appears to be fearful of the father, nevertheless. If the father did pose a threat to the child’s safety, there would be some justification for the ‘no contact’ proposals, but there is no such evidence. S.68F (2)(h) – Attitudes to parenting.The mother was observed by the Regulation 8 Welfare Officer as interacting well with the child and anticipating his needs. Against this, she is adamant that there should be no contact. The father has been reported to have acted in an inappropriate way in the past, but he seeks to be a father to this child and has a realistic view about the need for contact to be built up. The father has no contact with his child F, from a previous relationship, which he says he regrets. S.68F(2)(k) – The order least likely to lead to further proceedings.It is often difficult for a Court to predict the Orders that would be least likely to lead to further proceedings. The mother is adamant that there should be no contact. The father has persisted with his application. There are no other facts or circumstances that I consider to be relevant. The mother’s proposal is that there should be no contact with the father and that she should be permitted to relocate his place of residence to Queensland. The significant disadvantage about the ‘no-contact’ proposals is the fact that the child would be deprived of contact with his father when there is no evidence to justify that situation. This would be contrary to the principles set out in s.60B(1) “children have a right to know and be cared for by both their parents” and s.60B(2) “children have a right of contact, on a regular basis, with both their parents.” The evidence does not show that it would be contrary to the child’s best interests not to know or have contact with his father. Accordingly, the proposals that there should be no contact between father and son cannot be acceded to, as they do not appear to be in the child’s best interests. If there is to be contact, the mother’s proposal that she should be permitted the child’s residence to Queensland is problematic at this time, according to the unchallenged evidence of the Reg. 8 Welfare Officer, Ms Schwarz. She stated firmly that the child was at a crucial age for developing a relationship with a parent, and contact involving frequent interstate travel would be stressful. Infrequent contact would be unlikely to permit the relationship to develop. It would appear that the mother’s proposal to relocate the child’s residence to Queensland carries major disadvantages at this stage in the child’s life.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

S.68F(2)(c) – the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent.If there is no contact, there will be no opportunity for the child to have any relationship with the father. If the mother moves to Queensland, contact will be stressful, and it is unlikely to allow a relationship to develop. If the mother remains in New South Wales and the father sees the child regularly, then a relationship can develop. S.68F(2)(d) – the practical difficulty and expense of a child having contact with a parent.There would be little difficulty and expense in having contact if the child remains in New South Wales and the father has contact through the Contact Centre. A move to Queensland would involve expense in airfares and accommodation. Strictly speaking, there is no difficulty and expense in a “no contact” arrangement. S.68F(2)(e) – the capacity of each parent to provide for the needs of the child.The mother has the capacity to meet the child’s needs, except that she does not recognise the child’s need for a relationship with his father. The father has had only limited contact with the child, but seems to show a capacity to meet the child’s immediate physical needs, going by the observations of Ms Schwarz. There is some criticism of his actions when the child was a baby, but I have rejected the mother’s evidence that the father poses a threat to the child’s safety. S.68F(2)(f) – the child’s maturity, sex and background. T is still only a toddler. There is no issue about the fact that he should reside with his mother. This factor is a constant across all proposals. S.68F(2)(g),(j)(etc) – the need to protect the child from physical or psychological harm, family violence etc.The mother alleges that the father poses a threat to the child’s physical safety. I have already rejected her contention, as there is no evidence of this fact. There is no Apprehended Violence Order in force. The mother appears to be fearful of the father, nevertheless. If the father did pose a threat to the child’s safety, there would be some justification for the ‘no contact’ proposals, but there is no such evidence. S.68F (2)(h) – Attitudes to parenting.The mother was observed by the Regulation 8 Welfare Officer as interacting well with the child and anticipating his needs. Against this, she is adamant that there should be no contact. The father has been reported to have acted in an inappropriate way in the past, but he seeks to be a father to this child and has a realistic view about the need for contact to be built up. The father has no contact with his child F, from a previous relationship, which he says he regrets. S.68F(2)(k) – The order least likely to lead to further proceedings.It is often difficult for a Court to predict the Orders that would be least likely to lead to further proceedings. The mother is adamant that there should be no contact. The father has persisted with his application.