J and M - [2004] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & M

[2004] FMCAfam 127

FAMILY LAW – Children – contact – interim hearing – supervised contact.

Family Law Act 1975, ss.60B, 68F

J & W (1999) FLC 92-858
Bieganshi (1993) 16 FLR 353

Applicant:

A J

Respondent:

D M

File No:

PAM 3923 of 2003

Delivered on:

27 February 2004

Delivered at:

Parramatta

Hearing date:

27 February 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Sharah & Associates

Counsel for the Respondent:

Mr Campton

Solicitors for the Respondent:

Thomson Bentley & Partners

ORDERS

Order (2) made in the local Court of New South Wales at Burwood on 1 September 2003 is suspended.
The applicant father is to have contact with the child C G M M , born 12 February 2002:
(a)Each Sunday from 12 noon to 3 pm.
(b)Each Thursday from 12 noon to 3 pm.
(c)On Boxing Day in each year from 2 pm until 7 pm and
(d)On such other occasions including Father's day as the parties M agree.
The respondent father is to have contact with the child, A R J , born 27 June 2003.
(a)Each Sunday, either from 11.30 am to 12 noon or from 3 pm to 3.30 pm.
(b)Each Thursday, either from 11.30 am to 12 noon or from 3 pm to 3.30 pm.
(c)On such other occasions, including Boxing Day and Father's Day at such times as the parties agree.
Contact between the respondent father and the child C is to take place at the father's residence and the respondent father is to collect the child from the mother's residence at the commencement of the contact and return the child to the mother at the mother's residence at the conclusion of contact.
Contact between the respondent father and the child, A is to take place at the mother's residence and the mother M arrange for her sister, Bianca R Warner or her friend, Nicole Crane, to be present at such times.
The father is restrained from smoking or administering cannabis to himself at any time during or 24 hours prior to any contact period.
The father is not to take his mother to any contact changeover at the mother's residence.
I require a transcript of my reasons for this interim decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3923 of 2003

A J

Applicant

And

D M

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an interim application. It is an application brought by the mother of two children, the father is the respondent. It concerns contact with two children both quite young, both little girls, C who is now two years of age having been born on 12 February 2002 and A who is only a baby. She was born on 27 June last year.
The mother is seeking contact orders with her amended application. There have been proceedings in the Local Court of New South Wales at Burwood where interim orders were made including an order that the two children should live with their mother. I do not propose to disturb the interim residence order made by the Local Court and indeed I am not asked to do so. What I do wish to look at today is the whole question of contact on an interim basis until the amount of the father's contact can be examined properly at a final hearing.
It is perhaps instructive to remember that the Full Court of the Family Court has given consideration to what happens at interim hearings and the limitations that are placed on them. Usually they are conducted on the papers and the Court has to rely on the affidavit material and submissions from the parties' legal advisers. The Full Court has pointed out in the case of J v W that this means that matters that require lengthy analysis of contentious matters cannot usually be dealt with on an interim basis but must be saved for a final hearing.
What the Court has to do is consider the best interests of the children when it is a parenting matter and make orders that will assist the parties to reach a final hearing in a position where they can present their case properly for the kind of analysis that a final hearing requires.
The parties in this case have now been separated for a considerable period of time. The little girl A in fact has had very little contact with the father. The mother has complained that at times the child C has shown hostility to the father and has produced affidavit evidence from the sister and a friend bearing witness to some degree of that. There has also regrettably been a most unfortunate incident involving the mother and her paternal grandmother, the father's mother. It is not possible to go into the rights and wrongs of that matter in these proceedings but it seems clear that the relationship between the mother and the paternal grandmother is a very important one indeed.
No orders made by this Court on an interim basis can do anything to affect that situation but the parties will need to accept that the paternal grandmother and mother will need to avoid each other prior to the final hearing.
The mother does not oppose contact, she seeks however that contact be supervised and she has imposed, according to Mr Campton, the counsellor for the father some limitations on the contact. These limitations include I am told the requirement that contact take place in the grounds but not in the house of the mother's residence, apparently rain, hail or shine. Mr Campton has criticised that arrangement as being a most unnatural arrangement and not conducive to the development of the relationship between the father and both children.
The father cannot himself escape criticism. He concedes in his affidavit that he has not entered his name on the particulars of birth so that he can be recorded on the birth certificate as A's father. Admittedly there has been a dispute about the child's name but that is a matter for a final hearing. It is unfortunate to say the least that the name of the child's father does not appear on her birth certificate but it is not too late for that situation to be remedied.
There is a child support assessment in force in respect of both children. The material from the Child Support Agency that has been tendered as exhibit 2, however, appears to be internally inconsistent. A letter dated 24 February indicates the father has an outstanding liability of $2578.52, but a transaction statement from 1 July 2003 to 23 February 2004 begins with a balance of nil at 1 July and concludes with a balance of nil at 16 February. No copy of the assessment has been made available and so it is not possible for the Court to make an independent check as to how this amount of $2578.52 is made up, it remains a mystery.
The mother has expressed a concern about the child C smacking herself around the head, face and body and apparently throws tantrums. This was reported on 1 September 2003, it was reported to the police and the police not surprisingly reported that to the Department of Community Services. There is no indication that the department has taken any action other than to record the matter at this stage.
As I said the mother seeks that contact be supervised and she refers in her affidavit material to a number of incidents that took place in 2002 prior to separation and a threat made by the father in respect of the child and not to return her from contact, which again was most unfortunate. There is affidavit material alleging that the father is a consumer of the drug marijuana or cannabis and a heavy smoker of that drug. While cannabis is a prohibited drug in the State of New South Wales, it has not been decriminalised and it most certainly has not been legalised.
If it is the fact that the father chooses to indulge and administer to himself a prohibited drug then he must accept the fact that this must not occur anywhere near his children or I hasten to add anyone else's children. I can see no point that would indicate that it would be at all in the best interests of either child if the father has been affected by cannabis at any time that the children M be in his company or that there should be any need for them to be exposed to cannabis and its after effects. The father has indicated that he would consent to an order restraining him from consuming cannabis and connected with his contact and I certainly propose to make such an order.
The father's request to the Court for contact with the two children on an interim basis is not an overly ambitious one. In effect he is seeking a modification of the orders that have already been made in the Local Court at Burwood, namely on two occasions each week with C for three hours at a time. With A, who is much younger and with whom he has had very little contact, although the mother says the contact should be the same, the father points out that she is still a very young baby and his suggestion is that he have either half an hour prior to the scheduled contact with C or half an hour after it. This would depend very much on the child's sleep at the time and I think it is common knowledge that young babies do need a lot of sleep and also sleep at hours that are different from older children.
Ms Sharah for the applicant quite properly reminded the Court of the provisions of s.60B of the Family Law Act. Mr Campton, counsel for the father also and equally properly brought this matter to the Court's attention. Section 60B of the Act sets out the objects of Part VII of the Family Law Act and the principles underlying them. Subsection (1) says that:
The object of this Part is to ensure the children receive adequate and proper parenting to help them achieve their full potential and to ensure the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children.
Subsection (2) sets out the principles underlying these objects and they are that:
Except when it is or will be contrary to a child's best interests; a) children have the 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 worked together; and 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; and c) parents share the duties and responsibilities concerning care welfare and development of their children; and d) parents should agree about the future parenting of their children.
Well of course if more parents complied with paragraph (d) of subsection (2) of s.60B this Court would have a lot less work to do.

I am mindful of the fact that the principles set out in s.60B are subject to the best interests of the child and there are a number of matters under s.68F(2) which the Court must bear in mind. There are certainly concerns expressed by the mother as to the father's behaviour towards her in the past and some concerns in respect of the child C and in respect of his alleged lack of interest in the child, A on the one hand and a threat to take her away and on the other as I said in the final determination of those matters will await a final hearing. I am informed this day that Apprehended Violence proceedings have commenced, whether they have been commenced by the mother individually or by the police on her behalf I do not know. The summons was apparently returnable at the local Court today although the mother apparently did not attend.
Mr Campton, for the father, informed me that neither he nor the father were aware of these proceedings until this afternoon in Court and that the father certainly has not been served. It is unlikely therefore, with respect to the learned magistrate in the Local Court that any order has been made in respect of an application that remains unserved. Mr Campton points out that the incidents referred to by the mother relating to what she says of the father's inappropriate behaviour are in fact not of recent occurrence but go back to as far as early 2002. I note a notice of abuse has not been filed in respect of the children.
I am also reminded by both the legal advisers for the parties of supervised contact set out in the matter of B v B also known as Bieganski v Bieganski (1993) 16 FLR 353. Supervised contact, Mr Campton put to me, is essentially a short-term matter. And there are obvious administrative reasons as well as reasons relating to the welfare of the children and the development of their relationship with another party to be taken into account. Ms Sharah points out to me that a supervisor in contact should normally be someone independent rather than a close family member of the person whose contact is being supervised because of the difficulty of a close family member being able to adopt a firm and impartial approach and there is much to be said for that.
I note that the orders made in the Local Court on 1 September, some three individuals were named as supervisors. Their names are S J, B J and J C. There is no evidence on the record from any of these three gentlemen as to what role they have played in supervising the father's contact and what role they are prepared to play in the future, if any. The only information that I have about these three gentlemen is their names and nothing more.
Why do Courts make orders for supervised contact? Courts make orders for contact to be supervised to safeguard the welfare of the children with whom persons have contact or to safeguard the welfare of another parent or carer. There are certainly accounts of threats or violence taking place at contact changeover and often a parent with whom a child lives M have real and serious concerns about the attitude of the contact towards him or her. There are no concerns about the attitude of the contact parent to the child and they are totally two different things.
It is certainly a situation that the relationship between the applicant mother and respondent father in this case is not a good one and there are accusations and counter-accusations going towards each other's parenting skills. Mr Campton suggests, with some force, that a continuation of interim contact certainly with the child, C, outside the mother's residence, is an artificial situation which hardly leads to the build up of the relationship between the father and the little girl who has recently turned two. I believe that there is much force in that supervision and that it would be to the benefit of this child if she could see where the father lives and in fact satisfy herself in her own mind that the father has a home and proper arrangements for him and this would give her the opportunity to build up a relationship with him. If she has no real relationship with him or a strained or forced relationship with him at a final hearing, it will make it extremely difficult for the Court to make a proper and informed view of the interests of this child as to what the relationship of the child really is with the father and whether different sorts of contact orders are more appropriate than the ones that are sought today.
I have taken a charitable view perhaps of the affidavit material and there are a number of matters that appear in the affidavits on both sides, I hasten to add, which would be inadmissible in a final hearing. I have overlooked the inadmissible or matters which the Court would use its discretion to reject in favour of concentrating on hard evidence.
I am not satisfied that there is hard evidence that the father poses an unacceptable risk to the child, C, that would require supervision of his contact.
I am not satisfied that the child's interests can only be served by contact taking place on the mother's front lawn rather than at some other place that the mother knows where the child is going to be, such as the father's residence.
I note that Ms Sharah, for the mother, has put to the Court that the contact with each child should be the same but whilst A is a baby with a different sleeping pattern and whilst she has a relatively small relationship with the father, that M not be in her best interests. There is certainly a need for this child to spend regular time with the father on a frequent basis so that some bonding can develop. As the parties have been at arm's length for virtually all of A's life, the amount of bonding between this child and her father, to my mind, would probably be pretty slight. By the time the matter gets to a final hearing, there would be a need for the father to show that he does have the capacity to bond with the child. Mr Campton, for the father, has put that at this stage it's more appropriate for contact to take place either for a half hour before or a half hour after the father's contact with C.
I am mindful of the mother's concerns about the father and I am mindful of the fact that contact changeover could pose difficulties although there is no affidavit evidence to show that there has been any recent altercation. The mother has provided affidavits from her sister, B R W and her friend N C and it appears to me that it M set the mother's mind at rest that one or other of these people could be present at contact changeover time.
As far as A is concerned, it seems to me to be preferable that the short and flexible contact at the mother's residence should continue for the time being but I see that as a temporary measure. It would not be appropriate for the father's mother to go to any contact changeover because there is clear evidence that the mother and the father's mother have a poor relationship and it would not be in anyone's best interest for there to be such a provocative act.
It is my aim in making these orders to allow the father the opportunity to show to the Court that he can have a proper and workable relationship with his children. He is going to need to show to the Court on final hearing that he has the ability to abide by some restrictions placed by the Court and the ability to cooperate with the children's mother and she is their mother – in such a way as to ensure that contact goes smoothly for the children. The parents M dislike or be angry with each other but each parent should be mindful of the needs of the children and it has never been part of the mother's case that there should be no contact between the father and either child and that is an appropriate concession. The mother clearly appreciates, with the persistence of her legal adviser perhaps, that it is important for these children to know their father and build up a proper independent relationship with him.
It is for these reasons that I make the orders as at the commencement of this judgment.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 19 March 2004