GJA and AJA
[2004] FMCAfam 593
•23 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GJA & AJA | [2004] FMCAfam 593 |
| FAMILY LAW – Father’s access to child’s school records and like material – mother objects to father’s access – Registrar of court to sign necessary documents pursuant to s.106A on behalf of mother in event of non-signature. |
Family Law Act 1975, ss.60B, 65E, 106A
| Applicant: | G J A |
| Respondent: | A J A |
| File No: | MLM 6121 of 2002 |
| Delivered on: | 23 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 August 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Colla |
| Solicitors for the Applicant: | Hunter Newns |
| Counsel for the Respondent: | Mr P.A. Hannan |
| Solicitors for the Respondent: | Rogers & Every |
ORDERS
THAT paragraphs 3,5,6 and 9 of the Orders made 1 September 1997, be, and are hereby discharged.
IT IS FURTHER ORDERED BY THE COURT:
THAT in the event that the child S D A born 5 April 1989 wishes to have contact with the husband, the wife facilitate such contact occuring.
THAT the husband and the wife do all acts and things necessary and sign all such documents and provide all such lawful authorities as are required to enable the husband to contact the proper officer of the school at which the child S may from time to time attend for the purpose the following:
(a)To discuss with a proper officer of the school matters relating to S’s schooling;
(b)To arrange with a proper officer of the school for the husband to be sent school reports, photographs and other like items (the cost of postage and ordering photgraphs and any other charges associated with the provision of information to be at the sole expense of the husband);
(c)To ascertain from the proper officer of the school S’s enrolment status and the quantum at which S’s school fees are payable and the amount of any bursaries applicable to S’s attendance at the school;
(d)To ascertain from the proper officer of the school the name address and telephone number of any school to which S is subsequently transferred or to be enrolled.
THAT paragraph 3 of this Order has effect from 1 September 1997.
THAT the wife be, and is hereby, restrained from hindering the operation of paragraph 3 of this Order.
THAT in the event that the wife fails to comply with paragraph 3 herein, within 48 hours of a request to do so by the husband, pursuant to section 106A of the Family Law Act an officer of this Honorable Court be appointed to execute deeds and documents in the name of the wife to give full force and effect to the orderly implementation of paragraph 3 hereof.
THAT paragraph 8 of the Orders dated 1 September 1997 be varied so that the wife keep the husband advised of any major illness, accident or injury in respect of the child, such advice to be given within 48 hours of an incident occuring (providing that nothing in this order requires the child to have contact with the father).
THAT otherwise all extant applications be dismissed and removed from the active pending cases list.
THAT the Court certifies that it was reasonable for the parties to employ an advocate.
IT IS DIRECTED:
THAT my reasons for judgment this day be transcribed, and when transcribed, a copy be placed on the court file and one copy be sent to the solicitors for the wife and three copies be sent to the solicitors for the husband.
THAT the solicitors for the husband cause a copy of these orders and the reasons for judgment this day to be provided to;
(a)Mr D S, School Principal, B and C C, 14-25 S Street, B;
(b)Dr R H, Medical Practitioner, 402 A Street, S B.
AND THE COURT NOTES:
THAT pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 6121 of 2002
| G J A |
Applicant
and
| A J A |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before me as competing applications for parenting orders under the Family Law Act 1975. I have dealt with a contravention application between the same parties earlier in the day.
These proceedings were effectively commenced by an enforcement application which I am told was filed on behalf of the husband (there was no sealed copy on the Court file) in which he sought to enforce an earlier provision under orders made on 1 September 1997. That provision was intended to allow him access in relation to the children's school. I have since found that those provisions did not constitute an order for the purpose of contravention proceedings or otherwise. In the context that the provision maybe an order capable of enforcement, the wife then applied for an order discharging various parts of the order of 1 September 1997 (there is no sealed copy of that application of the Court file either). She seeks, in particular, a discharge of paragraphs 3, 4, 5, 6, 8, 9 and 12 of orders made on 1 September 1997. The husband then responded (with a response which is on the Court file) seeking that application be dismissed.
What actually has proceeded before me now, on the basis of submissions only, is an application for parenting orders. Essentially, they relate to the provision of information about the parties' child S D A, born 5 April 1989. They relate only to S because his older brother B has now attained the age of 18 years. I take the view that my jurisdiction in relation to B under Part VII of the Family Law Act was exhausted on 16 August 2004, when B turned 18 years of age.
The affidavits relied upon by the wife were:-
a)Her affidavit sworn 10 August 2004;
b)The affidavit of Dr R H sworn 19 August 2004.
The affidavits relied upon by the husband were:-
a)His affidavit sworn 18 August 2004;
b)His affidavit sworn 24 June 2004; and
the viva voce evidence of the school principal, Mr S. This evidence was in a proof of evidence adopted by the witness and he was then cross-examined. His evidence was given by video link from B.
Background
The parties married in 1989. They separated in 1996 at which time the boys, B and S probably would have been about 9 and 6 years of age. I am advised that the husband then had supervised contact visits. The contact was supervised because of an allegation which, I am told he denied, in relation to inappropriate sexual conduct with the boys. From 1997 the husband had contact on an alternate weekend basis, or at least had an order to that effect. There has however, been no face to face contact between the boys and the husband since approximately July 1997. Certainly the orders of 1 September 1997 were orders framed in the context of the husband having no face‑to‑face contact. The orders bear a notation at the end as follows:
That the husband has agreed to suspension of contact with reluctance and in response to the children's stated wishes and an endeavour to alleviate any stress and anxiety which they may currently be experiencing.
The husband and wife subsequently divorced in 1997.
It appears in this matter, which runs to some four or five volumes of Court files, that there have been a number of experts involved. One such expert was a Ms Esther Roodenburg who was a psychologist, it appears, retained by the wife and who reported to the court. I note that in her affidavit sworn on 16 October 1998 she sets out her recommendations as follows:
I believe S was under no duress to say any of the things he made clear to me. In fact it could be said that I encouraged him to say and think otherwise if only for some possible benefits, but he remained adamant. Since there have been no changes in the attitude of either B as reported to me in February or still by S only this month, I cannot believe it would be in their best interests to change the current situation of no access. There has been no indication that S is missing his dad, even though he knows it might make financial arrangements better if he did. In a child so young this is a firm stand to have made and I believe this has not been made lightly.
I would also suggest that courts refer to my report at June 1997 which still reflects the current circumstances. If B is maintaining the same stance as S towards any reconciliation with their father, then I would suggest that any change to the non‑access will only create further difficulties for all concerned, including for the dad. These boys have been severely traumatised and I believe any force applied to them in regard to seeing their father will only re-traumatise and aggravate an already convoluted situation.
As indicated, that was a report by an expert retained by the wife.
A court ordered a report was prepared by Leanne Norris, who was a regulation 8 counsellor attached to the court at that time. Her conclusions read as follows:
This is a difficult dispute, partially because of the mother's entrenched views which focus around an incident which supposedly took place some three and a half years ago. It is time that the allegations of sexual abuse were finally laid to rest, particularly given that they have been previously investigated and there is no indication of any ongoing concerns. As there have been no new reports to Health and Community Services, or the Department of Human Services as it now exists, it appears somewhat overanxious of Mrs A to be currently concerned about something which supposedly took place so long ago.
Mrs A's views of the children and their developmental needs are certainly different from their husband's. It is important in this case that some accurate medical information be provided as to the real state of the children's health. It is also possible that, given the different views of both parents about their health, Mrs A is in fact maximising the potential risk of health concerns around the children. Both children presented as being very healthy and B in fact said that he was not on any medication, apart from having a puffer which he needed for asthma.
It is of concern that Mrs A seems to have a totally negative view of the relationship between the children and their father. She seems unable to accept that they would benefit at all from a relationship with him and sees any form of relationship as providing a risk to them, both physically and emotionally. Mrs A needs to seek some assistance herself to accept the reality of an ongoing relationship between the children and their father and may in fact need some psychiatric assistance in order to evaluate exactly what her view is of the children's illnesses.
It is possible that if this is not addressed it may lead to a situation where Munchausen's by proxy could possibly develop with the children constantly being labelled as ill and unable to function. Mr A appears to be a very straightforward sort of man who could offer his children a valuable relationship. He and Mrs A are very different personality wise, but this does not mean they do not have equally important things to offer their children and Mr A is able to offer the boys a positive male role model as their father.
It appears that this was the context in which the orders of 1 September 1997 were entered into.
Relevant law
Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975. They are subject to s.65E of the Family Law Act, that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle and this is the principle that I follow in determining this matter which relates now only to S.
Subject to that, s.60B sets out the objects of Part VII of the Act and the principles which underlie those objects. The four principles are as follows:
(a) children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(c) parents should agree about the future parenting of their children.
Findings of fact
In this matter where I make findings of fact I do so on the balance of probabilities.
I have had an opportunity to observe the parties in the body of the court. Neither of them gave evidence. I remember their respective demeanour in court when the matter was before me on 2 August 2004. I have seen how each has behaved today. Their behaviour was consistent on both days. The husband sat quietly. The wife was highly agitated, fidgeting and not at all composed. She made exclamations in Court and at one stage said she was leaving but did not do so.
I appreciate the opportunity of being able to observe the wife’s reaction to parts of the case and interchanges between me and counsel. I found it to have been of some benefit in coming to my conclusion.
It seems to be common ground that, for only a year after the orders were made in 1997, the husband sought to contact the children by mail. The wife says that the children were distraught at the prospect of contact with the husband against their own wishes. That evidence is not contradicted by the husband.
I am satisfied that, at least as far as provision of school information is concerned, the wife gave express instructions to the principal of the boys’ school not to pass on information to the husband. This was contrary to the agreement reached and reflected in the orders of
1 September 1997.
The wife makes no secret of the fact that the boys should have no contact, even indirect contact, with the husband.
When this matter proceeded before me this afternoon starting at approximately 12.30 pm I was advised by counsel for the wife that the wife was not in court and was waiting outside the front of the Commonwealth Law Courts building to be advised of the result.
Proposals
The orders sought by the husband are set out in a minute of order and they provide for the wife to facilitate any contact which S indicates to her he wants to have with the husband, an extremely detailed list of the information which the husband be at liberty to obtain from S's school, which is B and C College, with such orders having effect from
1 September 1997. The minutes provide that the wife be restrained from issuing any direction to the school contrary to the orders that I may make today. The husband seeks the inclusion of a s.106A clause which would have the Registrar of this Court sign documents in the place of the wife in the event that she refused to do so. The husband seeks an order that the wife keep him advised of any significant illness or accident or injury of the child within 48 hours of such event occurring, and that the orders in due course be served on the child's school, and the child's school is to include any reference to any school attended from time to time by the child.
The orders sought by the wife are to discharge paragraphs 3, 4, 5, 6, 8, 9 and 12 of the orders made on 1 September 1997. That would have the effect of discharging the following orders:
3.The husband shall be entitled to write to the said children on a monthly basis.
4. In the event that the said children wish to have contact with the husband in any form (telephone, correspondence or face to face) the wife shall use her best endeavours to facilitate such contact.
5. The Wife shall provide the husband and the child representative with a contact telephone number and the name of the school at which the children attend.
6. The husband be at liberty to contact the school at which the children attend to discuss matters relating to their schooling and to receive school reports, photographs and other like items.
8. The wife keep the husband informed of any significant illness or injury relating to either of the said children or of the need for hospitalisation.
9. The wife provide husband with photographs of the said children at six monthly intervals.
12.That until further order the wife provide the husband with a post office box number for him to correspond with the children and keep her solicitor informed of her residential address.
Counsel for the wife addressed me only in relation to the orders sought by the husband.
The child’s wishes
The matters which I am mandated to take into account when determining what is in S’s best interest include the child's wishes. The husband has no material in relation to S's attitude to the orders which the husband seeks. The wife says that S not only would not want his father to have the information, but will be stressed and made anxious by the fact that the husband can access that information. In this respect the wife sought to rely on an affidavit by a Dr R H who is the treating general practitioner of B, the older child, and S. Dr H deposes that he has been the family physician for some seven years and has during that time counselled the boys who "have had a significant stress component". The doctor says in a letter dated 17 August 2004 addressed to the solicitors for the wife:
The theme of not wanting to have any contact with their father or the release of personal information has been a consistent theme for several years. The release of such information therefore would result in increased stress levels and therefore would aggravate any pre-existing health problems.
In a letter dated 17 March 2004 written by Dr H to "whom it may concern" he said:
Having spoken with B and S over the years I am aware that they do not wish to have any contact with their father in any way. Furthermore, any release of personal information would likely to be detrimental to the health and welfare of these children.
Dr H's evidence does not detail what condition is suffered by these children, and in particular, S. I note that on 2 August 2004 the wife indicated that she would be making an application for a discharge of the relevant orders in relation to the provision of information, and indeed she came to court today having asked that her application to vary the existing parenting orders be heard and determined today. There is an affidavit by her sworn on 10 August 2004 and there is the affidavit of Dr H that is sworn on 19 August 2004.
I accept the wife's evidence as to S's wishes and that is set out in paragraph 14 of her affidavit as follows:
Both children have indicated to me that they do not wish their school reports to be released to their father. In the past the only way I have been able to get the children to settle down is to assure them that they will not have anything to do with their father unless they want to and that their father cannot access information about them.
Otherwise the wife deposes as follows:
The children would take the letters [from the husband] and burn them without opening them.
The husband delivered Christmas cards and a birthday card addressed to my brother this year to be handed to the children. Initially I took the photographs of the children which I forwarded to the husband. Neither of my children wanted me to forward the photographs to the husband. When my elder son realised why I was taking photographs he refused to have any photographs taken at all by me.
I accept the wife's evidence is that S tells her that he wants no contact with the husband, and more particularly, that his desire not to have any information about himself or his home passed on to the husband pursuant to orders of this court, will be identical to the view of the wife.
I have serious reservations about the capacity of S to express any views which is not entirely consistent with that of his mother.
The nature of the children’s relationships
The next matter I consider is the nature of the child's relationships with each of the parties. S's relationship with his father is on a practical level non-existent. They will always have their relationship as father and son. The wife's relationship with S, however, is as a primary and sole caregiver. I must say one of the things that I am most concerned about is the wife's demeanour. For the purpose of these proceedings S has a very important and totally dependent relationship with the wife. Anxiety of the wife is likely to be passed onto S in some way. Against that, I have to weigh the objects of the Act and the long term benefits that S may derive from the knowledge that the husband remained interested in his welfare.
The likely effect of any changes in the children’s circumstances
The likely effect of any change in the children's circumstances is the next factor I take into account. The husband is merely seeking information from third parties. It is an application which is very limited. During the morning the wife sought that this matter not proceed to a final hearing today but that there be a report obtained from Ms Esther Roodenburg who is the private psychologist. It turns out that her counsel, at that stage did not know that Ms Roodenburg was a psychologist retained by the court and now he says that the court could have prepared the report. I was not addressed on whether the wife could or would pay for a report. I declined to order a report and allowed the mother to proceed.
Apropos of the report, I appreciate that natural justice requires that the parties be given an opportunity to present all relevant evidence to their case and that that opportunity has to be reasonable in all of the circumstances. However, in my view, that does not justify an unlimited right to call expert evidence, especially when it is inconsistent with the interests of the children that one of the parties do so. As I have indicated, the wife came to court today armed with an application to vary, an affidavit by herself and an affidavit by the children's treating doctor. In my view, to subject S to assessment and a report and to subject his household (his mother) to another hearing is likely to lead to significant turmoil or upset for him.
As part of the husband's earlier case I heard from the principal of B and C College Mr D S. His evidence was that he saw no reason why the school reports and information sought by the husband should not be given to the husband. He was referred specifically in cross-examination to the wife's concerns that the children were stressed and even undergoing treatment for that stress. The principal said that he was mindful of the emotional needs of young adults and that part of his job was to minister the pastoral care to students and their families. I accept the principal’s evidence. I note that he has dealt extensively with the wife and has dealt with the husband. His evidence adopted from his proof of evidence was that:-
3. I have not provided Mr A with the information set out in the order as Mrs A has expressly forbidden me to do so. Those instructions have been given to me orally. I have also received directions from Mrs A’s solicitors in letter from to the same effect in April and June 2004. Mrs A has not given me any reasons for her instructions except for saying that the order no longer applied.
[………………]
5. I have been told by Mrs A that Mr A should not get information as set out in the order on the basis that she is the sole guardian of the children.
7. The boys are both good students and confident members of the school community. They do not have any special emotional needs as far as the school is aware.
8. In my dealings with Mr A, I have observed him to be reasonable, genuinely interested in the boys and wanting information under the order so he can see how the boys are growing up.
9. The information as set out in the order is and has been available for distribution to Mr G A at all times. The only reason it has not been so distributed is because of Mrs A’s directions to the school.
10. The school is willing to distribute the information referred to in the order direct to Mr A.
The children’s maturity, sex, background and other characteristics
There has not been any evidence addressed to me in relation to S's maturity, sex, background and other characteristics such that would warrant me taking that into account as a factor in these very limited proceedings.
The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
Another factor I am mandated to take into account is the need to protect S from physical or psychological harm caused by abuse, ill-treatment, violence or other behaviour. As indicated, the wife presented in a highly agitated state. Her demeanour and behaviour in Court leads me to have some concerns about the extent to which she could withstand pressure of proceedings if they are left pending. I had formed those concerns based on my own observation of the wife prior to being made aware of Ms Norris’ early report. Importantly, I have concerns about the impact of her ability to emotionally care for S when she feels under threat of orders being made by this court which would give the husband even remote contact with the children. However, the orders I make need not trouble S at all unless the wife makes it a problem for him.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
I simply do not have enough evidence to comment on the attitude to the children to the responsibilities of parenthood demonstrated by each of the children's parents, save that I am satisfied the wife would totally wish to exclude the husband from S's life and also the life of his older brother. I understand that the husband has paid child support for at least 7 years. There are child support proceedings listed in this Court in 2 days.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children, I find that is an absolute imperative in this case.
Conclusions
In assessing what is in S's best interests I find that any information which the husband seeks should not necessarily impact upon S. It is not my intention for these orders to establish a conduit through which the husband can then communicate with S about experiences that he knows S has had by way of school performance and the like. In my view, it is in S's best interests that his father, the husband in these proceedings, has some knowledge of his progress at school and knowledge in the event that S becomes ill of that illness. I think that is consistent with the object of the Act including that children have a right to know both parents. I am seeking to preserve the (one-way) bond between the husband and his son (even if S is oblivious to it at this stage).
Oral application for restraining order
The oral application by the wife that the husband be restrained from attending at or anywhere near where she and the children reside or from making contact with any of them by telephone. I note that paragraphs 12 and 13 of the orders made on 1 September provided:
(12) That until further order the wife provide the husband with a post office box number for him to correspond with the children and keep her solicitor informed of her residential address.
(13) That until further order the husband take no steps to seek the wife's residential address until the said children have seen J F in February 1998.
As it happened, until this year the husband did not know the residential address of the wife. The wife's oral application is now brought on the basis that she was aware that in either March or May of this year her solicitors provided her residential address to the husband's solicitor and it was passed on to him. Indeed when this matter proceeded before me this afternoon I was advised by counsel for the husband that the wife resides at 10 M Avenue, A, whereas counsel for the wife did not know where his client resided, and, as indicated, the wife was not within the body of the court.
Counsel for the wife says that this order is necessary because his client is highly agitated by the fact the husband knows her address.
I am not going to make the order sought by the wife because, whilst I appreciate that the wife is highly agitated by these proceedings, I simply do not consider it a proper use of the court's injunctive powers for the husband to be restrained from doing something which he indicates he has no desire to do, that indication having been given through counsel. The fact of the matter is that if he has known the address since March or May of this year, there has not been a single complaint by the wife that he has taken liberties with that knowledge that she would not want him to take.
It was further put by the wife that the husband’s conduct (in not seeking out the wife or child) may change in the future. I am not satisfied that there is any real risk that the husband will approach S (or his older brother). I find that the husband’s conduct of these proceedings since 1997 is consistent with him believing that, whilst the wife and his sons think of him in the very negative terms that the wife deposes to, he realises that he cannot play any active or practical role in S’s life, for an appreciable time to come. I dismiss the wife’s oral application.
Service
I will be ordering that a copy of the orders and these reasons for judgment be sent to the parties and Mr D S, the school principal, and Dr H, S’s medical practitioner. These two gentlemen are each involved in S’s life in professional and very significant capacities. I am aware that the wife may be disturbed by the publication of the order and reasons. However, since each professional has been brought into these proceedings by one of the parties and have expressed their professional opinions, I find that it is in S’s best interests that each of them are aware of the reasons in case S approaches either of them and raises objection or concerns by way of discussion.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R. Campbell
Date: 24 August 2004
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