H and M
[2003] FMCAfam 428
•19 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & M | [2003] FMCAfam 428 |
| FAMILY LAW – Children – contact – family violence – apprehended violence order – Respondent seeks that there should be no contact between the Applicant and the child – child’s best interests – supervision of contact – history of drug abuse – conditions imposed on contact order – injunctions for the personal protection of a parent or child. Family Law Act 1975, ss.60B; 65E; 68B; 68F; 68K B and B: Family Law Reform Act 1995 (1997) FLC 92-755 |
| Applicant: | KWH |
| Respondent: | BMM |
| File No: | NCM 2382 of 2001 |
| Delivered on: | 19 September 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 21 & 22 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf
| Counsel for the Respondent: | Mr Hamilton |
| Solicitors for the Respondent: | Turnbull Hill Lawyers |
ORDERS
Orders 3, 4 and 5 made by consent in the Local Court of New South Wales at Raymond Terrace on 1 November 1999 are discharged.
The Applicant father is to have contact with the child DC H born 20 July 1998 for a period of two (2) hours per fortnight at the R Contact Centre at H at such times and on such days as the Supervisor of the said contact centre shall appoint.
All contact pursuant to Order 2 above is to be supervised by a member of the staff of Relationships Australia.
For the purpose of exercising contact pursuant to Order 2, the Respondent or a responsible adult nominated by the Respondent is to deliver the child to the R Contact Centre at the commencement of each contact period and collect the said child at the R Contact Centre at the conclusion of each contact period.
In the event that the Applicant is unable to exercise contact with the said child on any occasion he is to inform the R Contact Centre of that inability as soon as possible before the time that contact is scheduled to commence.
In the event that the child is unable to attend contact with the Applicant due to illness, injury or any other emergency the Respondent is to inform the R Contact Centre as soon as possible before the time that contact is scheduled to commence.
Contact between the father and the child pursuant to Order 2 is conditional upon the father:
(a)undergoing urinalysis for the purpose of detecting the presence of any prohibited drug on not less than four (4) occasions within a period of twelve (12) months from the date of these Orders and forwarding a copy of the results of such urinalysis to the Respondent mother’s solicitor within three (3) days of obtaining such results;
(b)attending a course in anger management as directed by the Director of Court Counselling of the Newcastle Registry of the Federal Magistrates Court within three (3) months of the date of these orders.
In the event that the father refuses or fails to comply with the provisions of Order 4 without reasonable excuse the Respondent is granted leave to apply to the Court for the suspension or discharge of Order 2 above.
Pursuant to section 68B of the Family Law Act and for the personal protection of the Respondent the Applicant is restrained from:
(a)entering or remaining in the residence or any place of employment of the Respondent;
(b)causing or threatening to cause bodily harm to the Respondent;
(c)harassing, molesting or stalking the Respondent; or
(d)telephoning the Respondent.
Pursuant to Section 68B of the Family Law Act and for the personal protection of the said child DCH born 20 July 1998 the Applicant is restrained from:
(a)entering or remaining in the residence of the said child or any school attended by the said child;
(b)telephoning the said child;
(c)removing or attempting to remove the said child from the R Contact Centre; or
(d)administering to himself any prohibited drug during or for twelve (12) hours prior to any period of contact provided by Order 2.
The parties are granted liberty to apply in respect of these Orders on seven (7) days notice.
All documents produced on subpoena other than exhibits are to be returned.
All exhibits may be returned after one (1) month.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
NCM 2382 of 2001
| KWH |
Applicant
And
| BMM |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of little boy called D for discharge of orders made by the Local Court of New South Wales and for orders that he should have contact with him as follows:
a)From 10.00 am to 5.00 pm on alternate Sundays for a period of twelve weeks;
b)On alternate weekends from 10.00 am on Saturday to 12.00 noon on Sunday for another twelve weeks;
c)On alternate weekends from 10.00 am on Saturday to 5.00 pm on Sunday for a further period of sixteen weeks; and then
d)On alternate weekends from 5.00 pm on Friday to 5.00 pm on Sunday.
The father also seeks contact on special days such as Christmas Day, Father’s Day and the child’s birthday, as well as during school holidays.
The mother has filed a Response, in which she seeks that the father’s application should be dismissed. Her counsel has told the Court that, in the alternative, the father should have only limited contact, which should be supervised.
Background
The father and mother commenced their relationship in late 1995 and were married on 13th September 1997. There is one child of the marriage, D, who was born on 20th July 1998. D shares a birthday with the father, who was born on 20th July 1968. The parties separated on 29th August 1999.
The child remained living with the mother and with his half-brother, J L, who was born on 6th October 1992. J is the child of an earlier relationship.
On 17th October 1999 the father removed the child from the care of the mother, and did not return him until 30th October. On 1st November 1999, in the Raymond Terrace Local Court, the parties entered into consent orders that the child would live with the mother and the father would have contact with him on alternate weekends.
Some contact took place in late 1999 but did not continue. Relations between the father and the mother remained poor.
The father had been using prohibited drugs and had been involved in criminal activity. He was convicted on several occasions during 2000 of offences involving violence, dishonesty and use of prohibited drugs and was sentenced to a period of imprisonment in December 2000. His appeal was dismissed on 23rd January 2001 and he served a term of imprisonment until May 2002. The parties were divorced in May 2001, whilst the father was in prison.
The mother has formed a new relationship with DKM, to whom she was married on 13th October 2002. The parties have a child of their own, a little boy called N who was born on 20th March 2003. The mother’s child from an earlier relationship, J, left the mother’s home in February 2003 and resides with his paternal grandmother.
The father remarried on 5th June 2002 to a lady called MM, whom he had met prior to his imprisonment. The parties separated on 7th February 2003. On 10th February 2003 the father was charged with assault occasioning actual bodily harm on MH and appeared at Muswellbrook Local Court on 18th February. He pleaded guilty and was sentenced to 12 months imprisonment, suspended for 12 months on condition that he accept the supervision of the NSW Probation and Parole Service.
The father commenced these proceedings on 21st October 2002. On 18th December 2002 the contact orders made at Raymond Terrace on 1st November 1999 were suspended until further order. An interim hearing on 14th January 2003 continued that suspension of contact, and the father has had no contact with the child since then, except for the purpose of observation by the counsellor preparing the Family Report for these proceedings.
The father’s application was heard on a final basis on 21st and 22nd August 2003. The father had originally been legally represented but appeared for himself on the final hearing. Both parents gave evidence, as did Mr David M, the mother’s new husband, Mrs M H, the father’s estranged wife, and the counsellor who prepared the Family Report, Ms King.
Issues
The issues between the parties are whether it is in the best interests of the child D to have contact with the father. The mother says that it is not in the child’s best interests, for these reasons:
a)there is an unacceptable risk to the child because the father has a history of domestic violence;
b)the father has a history of drug abuse;
c)there has been virtually no contact between the father and the child since he before he was two years of age; and
d)the father does not have any parenting skills.
The father says that contact is in the child’s best interests, because:
(a)he has always been a good father to his son;
(b)the mother has exaggerated her complaints about him;
(c)he has put criminality and drug abuse behind him; and
(d)he loves his son and wants to play a role in his life.
Principles to be applied
When dealing with parenting cases, courts exercising jurisdiction under the Family Law Act must be mindful of the Object of Part VII of the Act and the principles underlying that object. The object and the principles are set out in section 60B. The relevant principles in this case are that, except when it would be contrary to the child’s best interests:
a)children have the right to know and be cared for by both their parents; and
b)children have a right of contact, on a regular basis, with both their parents and other significant people.
The Court must regard the best interests of the child as the paramount consideration (section 65E). Section 68F sets out the matters that the Court must consider in determining what is in the child’s best interests. The list of relevant matters is set out in sub-section 68F(2).
The child’s best interests
Subsection 68F(2)(a) requires the Court to consider any wishes expressed by the child and any factors relevant to the weight that should be given to those wishes. Section 68G says that the Court may inform itself of the wishes of the child concerned by having regard to anything contained in a Family Report prepared under subsection 62G(2).
The child D is too young, at the age of five years, for any great weight to be given to any expressed wishes, and the counsellor did not ask him for his wishes. Nevertheless, the child appeared to enjoy a period of play with the father and asked to see him again.
The Court must consider the nature of the relationship of the child with each parent and with other persons (sub-section. 68F(2)(b)).
There is no evidence to suggest that D has anything other than a close relationship with his mother or with Mr M. There is very little relationship with the father, as there has been no contact since early 2000 or late 1999, according to which parent’s account one accepts, except for a limited period of time for the purpose of preparation of the Family Report.
The Court must consider the likely effect of any change in the child’s circumstances (sub-section. 68F(2)(c)).
The mother is opposed to any resumption of contact, expressing the fear that it would be disruptive to the child and to the happy home life that she has formed with Mr M. The commencement of a regular contact arrangement would not meet with the mother’s approval, which would have the effect of causing some unhappiness in the mother’s household.
The Court is required to consider the practical difficulty of the child having contact with a parent, in this case the father (sub-section 68F(2)(d)). There is no great physical distance between the residences of the parties, but there is the complication of the hostility between the parents. Any contact changeover arrangement would need to provide that the parents did not meet.
There is an issue about the capacity of each parent to provide for the child’s needs, including his emotional and intellectual needs (sub-section 68F(2)(e)).
The mother deposes in her affidavit of 12th August 2003 that the father made child support payments for about three months after the interim hearing in January of this year. Since then, she says that he has made no payments, despite the fact that he is in employment. The mother has been the one responsible for D’s financial support since separation. The mother is available to supervise the child on a full time basis. She is sceptical about the father’s parenting skills.
Subsection 68F(2)(f) requires the Court to consider the child’s maturity, sex and background, and any other relevant characteristics.
D is a little boy aged five years and two months, who has lived with his mother all his life. There is no evidence that he is of other than appropriate maturity for his age.
Subsection 68F(2) and section 68K require the Court to consider family violence issues, including the need to protect the child from physical or psychological harm.
There have been Apprehended Violence Orders against the father in the past, but there is no current Order. There has been, however, a significant history of domestic violence, which still causes the mother considerable fear and distress. The father has been convicted of common assault on two separate occasions, assaulting police, contravening an apprehended violence order and, most recently, assault occasioning actual bodily harm. The convictions for assault include an assault on the mother and the recent assault occasioning actual bodily harm on M H.
The mother obtained an award of compensation on 5th April 2002 under the Victims Support and Rehabilitation Act (1996) (NSW) as a result of her claim for compensation for domestic violence from late 1995 to July 2000.
The Courts take a serious view of domestic violence, and there are a number of authorities which stress the negative effect on a child of violence within a family context. In A v A (1998) 22 Fam LR 756; FLC 92-800, it was held that while the residence parent’s belief about whether it is risky to bring a child into contact with the other parent may be relevant in itself, the Court should not avoid attempting to determine what risk really exists.
In the decision of JG and BG (1994) 18 Fam LR 255; FLC 92-515, Chisholm J held that:
“(1) In proceedings relating to custody, guardianship and access, evidence of family violence is relevant in so far as it assists the Court in determining what orders will best promote the welfare of the children.
(2) The Court will have regard to the fact that family violence may be directly or indirectly relevant to the children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.”
Similar sentiments were expressed by the Full Court of the Family Court in Patsalou (1994) 18 Fam LR 426; (1995) FLC 92-580. In this case, there is evidence that the father has been convicted of assaults on both the mother and his present, albeit estranged wife, and he is currently undergoing a suspended sentence for the latest offence. It is a matter of great concern that the latest offence dates from as recently as February this year.
There is evidence that the father himself was the victim of serious abuse by his own father, who is currently serving a prison sentence for assaults on the father and his siblings. The assaults committed on the father by his own father were most serious and would have subjected him to both physical harm and psychological trauma. Not all abused children go on to become abusers themselves, but the mother’s fears in this regard are not without foundation.
The mother has given evidence of harassing and verbally abusive behaviour by the father directed at her and her present husband after he was released from prison. This behaviour, combined with the mother’s memories of abuse during the marriage and the occasion after the parties separated when the father took the child away for two weeks without the mother’s consent, would easily explain the mother’s fear and mistrust of the father and her current hostility towards him.
Whilst the father has criticised the mother for exaggerating the violence and threats in the past, I am satisfied that the father has attempted to down play the violence in his recent history. The mother has, to my mind, reasonable grounds to regard the father with fear and hostility. I propose to make injunctive orders directed toward her personal safety, and that of the child.
The Court must look at the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (sub-section. 68F(2)(h)).
The mother is criticised in the Family Report for her reluctance to acknowledge to the child that the Applicant was in fact his father. It is clear that when this information was disclosed to the child, he responded well, without the distress or dismay that the mother feared. Whilst the mother has, because of the history of her relationship with the Applicant, ample grounds for fear and hostility towards him, it is not, to my mind, in the best interests of a child to hide the identity of his father from him.
The mother’s relationship with her eldest son, J, is a source of concern. The mother says that he was demonstrating serious behavioural problems until he eventually ran away and took up residence with his paternal grandmother, in the month before her latest child N was born. Whilst there is evidence that the child was acting out, the mother’s acceptance of the child’s change of residence and her apparent lack of inquiry into why he chose to act in this way does not show her attitude to the responsibilities of parenthood in a good light.
The father says that he loves the child and wants to build up a relationship with him. The father’s failure to pay child support on a regular basis does not indicate a willingness to shoulder any of the financial burdens of parenthood, in my opinion.
The father has a child from an earlier relationship, a girl who was born on 13th April 1994. This child resides with her mother, and the father has no contact with her.
The Court must consider any other fact or circumstance that it thinks is relevant (sub-section. 68F(2)(l)).
The father’s history of drug abuse is a cause for concern. He has two convictions for possession of a prohibited drug, in January and March 2000. There is also the evidence of the occasion when the mother found the father, who had collapsed on her front lawn. This incident took place in February 2000. The mother arranged for an ambulance to take the father to hospital. The next day, she deposed that she took his wallet to him at the hospital and he attacked her physically.
The Court must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings (sub-section. 68F(2)(k)).
There is no guarantee that, whatever order I make, there will be no further proceedings.
Conclusions
The mother’s preferred position is that the father’s application should be dismissed and that there be no order for contact. The mother’s counsel, Mr Hamilton, has referred me to the decision of the Federal Magistrates Court of Australia in A & A [2001] FMCAfam 29. In that decision, Ryan FM found that it was in the best interests of the children concerned that an order for no contact should be made, because making an order for contact, including supervised contact, would expose the children to an unacceptable risk of family violence. The Court counsellor in that case concluded in the Family Report that the children were unlikely to benefit from re-establishing contact with the father.
I believe that the decision in A & A can be distinguished on its facts. In the matter before me, the recommendation in the Family Report was that, subject to certain conditions, contact should be resumed. The interaction between father and son was described as “extremely positive”[1] and the counsellor expressed the opinion that the child would have little difficulty adjusting to the gradual contact regime proposed by the father.
[1] Family Report, paragraph 51
When the counsellor, Ms K, was cross-examined, she reviewed her recommendations, in the light of the evidence of the father’s criminal history. She expressed concern that the father had this year separated from his current wife and was convicted of an assault on her. Ms King said:
“Contact should only occur in the daytime, and alone. I think it’s a very sad thing for there to be a complete breakdown in the relationship between parents and children. If there is daytime only contact and alone, that might meet D’s need for contact with his father.”
The reference to “alone” refers to the fact that the father, having separated from his current wife in February, has entered into a live-in relationship with another woman, with whom he resides in Muswellbrook, along with her four children. There was no affidavit evidence from this lady, nor did she attend for the purpose of the Family Report.
I am satisfied that the mother has good reason for her hostility toward the father and a fear and distrust of him, based on their relationship and the father’s history of drug abuse. At the same time, her hostility toward the father, and her positive view of her current marriage, appear to prevent the mother from seeing the need for the child to have a relationship with his natural father, who desires a relationship with him.
I am satisfied that the best interests of the child point toward a gradual introduction of contact with the father. The description in the Family Report of the positive interaction between D and his father support the view that contact should be attempted, as long as there are adequate safeguards to protect the child and his mother from risk.
The counsellor points to the need for safeguards against drug abuse and the desirability for an anger management course, and the father’s recent history bears those points out. The father expressed a willingness to undergo urinalysis to prove his drug-free status.
It appears to me that the mother must be protected from fear of harm or intimidation, and there is no good reason to make arrangements that would lead the mother into regular contact with the father.
I propose to make injunctive orders to protect the safety of the mother and the child pursuant to the provisions of section 68B of the Family Law Act. The father’s contact will be conditional on his undergoing urinalysis and an anger management course. Contact will have to take place through the R Contact Centre, and I consider that it should be supervised initially, until the father can establish that he can exercise contact with the child in a way that will benefit the child and allay the mother’s fears. It will be a long process, but the orders will include liberty to apply so that the orders can be varied, either by extending the contact if it appears to be working successfully, or by suspending or discharging the orders if the father does not abide by the stringent conditions that I have imposed.
It is for these reasons that I make the orders that appear at the commencement of this judgement.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 22 September 2003
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