G and N - [2004] FMCAfam 657

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & N

[2004] FMCAfam 657

FAMILY LAW – Children – variation of orders – best interests of the child.

Family Law Act 1975 (Cth), s.68F(2)

Applicants:

BG & PG

Respondent:

File No:

PAM530 of 2001

Delivered on:

14 October 2004

Delivered at:

Parramatta

Hearing date:

14 October 2004

Judgment of:

Emmett FM

REPRESENTATION

The Applicant representing herself

The Respondent representing himself

ORDERS

Terms of settlement dated 16 February 2001 (“the Terms”) be varied as follows:
(i)That the contact provided for in paragraphs 2(a) and 2(b) be subject to the agreement of the child, JN.
(ii)Any contact in accordance with 2(a) and (b) of the Terms is to cease upon the expressed wish of the child to her father and that the child be able to telephone her mother and be collected forthwith prior to the conclusion of contact.
(iii)That contact in the school holidays will be for the second half unless otherwise agreed between the parties.
Grant Liberty to either party to restore the matter on 2 days notice. This liberty expires six weeks from today.

Note:

(a)That a copy of the Unifam ‘Keeping in Contact’ brochure has been provided to each party with these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM530 of 2001

BG and PG

Applicant

And

Respondent

REASONS FOR JUDGMENT

The Applicant mother, seeks variation to Orders made on 16 February 2001 in respect of the contact of the child, JN (“the Child”), with the Respondent father.
The variation to contact is in respect of paragraph 2(a) of the terms of settlement; namely, that the Respondent father shall have contact with the Child from 5 pm Friday to 3 pm Sunday each alternate weekend. The Applicant mother seeks to restrict contact to each alternate weekend, but Saturday only from 8 am to 7 pm.
In support of that Application the Applicant mother relies on an Affidavit sworn by her on 29 July 2004 in which she deposes to the fact that the Respondent father lives with his father, but the Applicant mother understands he is looking to live elsewhere.
The Child continues to live with the Applicant mother and stepfather, where the Child has her own room and attends school, and according to the Applicant mother is an excellent, cooperative student and excelling in the area of literacy.
When the Child has access with the Respondent father at his present residence with the paternal grandfather, the Child does sleep in her own room during those contact visits.
The Applicant mother's Application for reduction of contact was originally for a limited period of a minimum of 6 weeks to enable the Respondent father to seek counselling and psychiatric report and to find a stable, permanent living environment where the Child has her own room. The Applicant mother would then be agreeable to contact increasing to comply with the Orders of 16 February 2001.
At present the Respondent father is unemployed and the Applicant mother is employed as a school teacher. The Applicant mother and step-father are currently supplying, according to the Applicant mother, 100 per cent financial support of the Child. I note however that at present, it is the Applicant mother's understanding that the Respondent father now does have a job and he has, over time, made sporadic payments of child support.
I note that the Respondent father was given a further opportunity to file and serve a Response and Affidavit on 6 October 2004 by the

13 October 2004; that nothing has been filed.
The Respondent father did appear this morning and was not seeking to challenge any of the Orders sought by the mother. However, the Respondent father was not prepared to stay to explore the Orders that were being sought or the way in which they might work. The Respondent father did not appear to have given any genuine and considered thought to the views that he expressed at the time to the Court. The Respondent father was, however, belligerent, loud mouthed and unco-operative in the face of the Court and made little effort to seek to understand the Applicant mother’s Application or the Court’s role in considering the Application. His behaviour in Court today corroborative of the concerns expressed by the Applicant mother that whilst nothing harmful has happened to Jessica to date, she has concerns in that she does not know what the Respondent father may be capable of doing.
In this regard the Applicant mother deposes to concerns in respect of the Respondent father’s behaviour on the weekend of the 23 July where, having picked up JN from school on the Friday, he sent a text message to the Applicant mother that he was intending to keep the Child, that she would live with him, go to the local primary school and that for some time he refused to allow the Applicant mother to speak to the Child.
The Applicant mother gave evidence before me this morning in a frank and forthright manner and I was particularly impressed about her recognition of the importance to JN, if possible, in having a relationship with her father and indeed with her paternal grandparents with whom the Applicant mother acknowledged Jessica has a loving relationship.
The Applicant mother also frankly acknowledged that Jessica was not as distressed by the episodes of the weekend as perhaps the Applicant mother might have been and they have had no lasting effect on her and that she has not expressed any desire to cease contact or indeed to limit contact with her father at this stage. The Applicant mother says that she has a high level of tolerance and copes well with the difficulties that perhaps the emotional or psychiatric state of her father presents from time to time.
I am satisfied that the Applicant mother's Application is motivated by seeking to protect her daughter from potential of any real harm. I find it disturbing that the Respondent father would purport to say to the Applicant mother that he was going to keep the Child with him and change schools without any discussion with either the Applicant mother or the Child and to refuse to allow the Applicant mother to speak to the Child.
The Child is 9 years old and, on the Applicant mother's evidence, would appear to be a very bright, mature, healthy and loving little girl. That is a great credit to both her parents, although, as I say, I am particularly impressed by the attitude of the Applicant mother as inclusive of involving the Respondent father in JN’s life and recognising the benefit to JN of a relationship with her father.
I find the Applicant mother to be a reliable witness of truth and in the circumstances, on the evidence before me, I am satisfied that JN is a mature little girl and may well have sufficient emotional stability and resources to be more involved in the decisions about the contact that she should have with her father.
The Applicant mother is agreeable to the current Orders remaining on foot, subject to contact occurring in accordance with those Orders with JN's agreement. She also seeks that in the event that JN would seek to either reduce the time of the contact or express a wish not to have contact on a particular weekend, that she would not otherwise be obliged to do so.
The Applicant mother has expressed some confidence in JN's judgment in assessing any difficulties her father may have and that exposure to them to date has not caused JN undue concern or harm.
It is a shame that the Respondent father did not stay this morning for the duration of this matter, as it may have been helpful to him to explore the possibility of counselling support for him or the benefits of other programs available, such as the UNIFAM Keeping In Contact Program.
In relation to the matters referred to in s.68F(2) of the Family Law Act in considering what is in the best interests of a child I make the following findings:

Section 68F(2)(a): any wishes expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight it should give the child's wishes

As referred to earlier, I find the Child to be of sufficient maturity that significant weight should be given to wishes expressed by her. I note that to date the Child has not expressed any wish not to have contact with her father. The Applicant mother frankly recounted a conversation with her daughter relating to this weekend where she asked her daughter if she wanted to have contact with her father and how did she feel about going for the weekend or would she prefer to go just for the day. The Child answered:
“I don't really mind.”
The Applicant mother has concluded from the Child's behaviour that the Child has a high tolerance level and has coped very well.
I regard that behaviour and conduct by the Child as demonstrative of a high level of maturity and therefore I am of the view, as I have said, that significant weight should be given to any wishes that she may express relating to contact with her father.

Section 68F(2)(b): the nature of relationship with each of the child's parents and with other persons

Again, I am satisfied that the Child has a loving relationship with her mother and step-father and indeed with her father and her father's parents.

Section 68F(2)(c): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of her parents

I am of the view that where any separation is at the instigation of the Child, that the effect will not be harmful on the Child given the supportive attitude of the Applicant mother to the Child's relationship with her father and the Child's desire herself to maintain a relationship.

Section 68F(2)(d): the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs

I am satisfied that the Applicant mother provides very well for those needs in JN.
I am not satisfied, having regard to the conduct of the Respondent father before the Court this morning, as to how well he is providing for her emotional and intellectual needs. The success of her general development may in large part be due to the accommodation of the Applicant mother to the problems that the Respondent father has from time to time and the maturity of JN herself.

Section 68F(2)(e): the need to protect the child from physical or psychological harm caused or that may be caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour or being directly or indirectly exposed

There is no evidence before me to suggest that there has been any abuse, ill-treatment or violence that JN has either been subjected to directly or indirectly.
However, as stated above, I am concerned about the behaviour of the father on the weekend of the 23 July 2004, that behaviour perhaps exhibiting some disturbance in the Respondent father from which the Child ought to have some protection.

Section 68F(2)(f): the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents

The Applicant mother has demonstrated a mature and supportive attitude to the Child in respect of her relationship with her father and I find the Applicant mother to be well aware of the responsibilities of parenthood in ensuring Jessica's healthy development and welfare.

Section 68F(2)(g): 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

Where the orders remain otherwise on foot, subject to the Child's agreement having regard to the findings I have made about the maturity of the Child and the support and responsibility of the Applicant mother, I am of the view that a variation to provide for the Child's agreement to the contact as it stands is the most appropriate Order and the most likely to promote the relationship between the Child and her father and the Child and her mother, having regard as I have said several times, the supportive attitude of the Applicant mother to fostering that relationship between the Child and the Respondent father.
It is difficult to assess whether such an Order will be likely to lead to the institution of further proceedings by the Respondent father who has had ample opportunity to be involved in these proceedings and has chosen not to participate today.
Accordingly, I make Orders in accordance with the Applicant mother’s Application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 17 November 2004