JACOBS & JACOBS
[2008] FMCAfam 802
•9 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACOBS & JACOBS | [2008] FMCAfam 802 |
| FAMILY LAW – Contravention – allegations – written allegations made out – penalty to be imposed. FAMILY LAW – Parentage testing – best interest of children – absence of evidence that parentage testing real issue in proceedings. |
| Family Law Act 1975 (Cth) ss.653, 692, 70 NAC, 70NAF |
| Applicant: | MR JACOBS |
| Respondent: | MS JACOBS |
| File Number: | NCC 2893 of 2007 |
| Judgment of: | Housego FM |
| Hearing dates: | 8 & 9 July 2008 |
| Date of Last Submission: | 9 July 2008 |
| Delivered at: | Newcastle |
| Delivered on: | 9 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant appeared in person |
| Solicitor for the Respondent: | Mr Rugendyke (as agent) |
| Solicitors for the Respondent: | Everingham Solomons |
ORDERS
In relation to the contravention filed by the father on 6 June 2008 in the Federal Magistrates Court of Australia, the following alleged contraventions are struck out:
(a)Alleged contravention at paragraph 7;
(b)Alleged contravention at paragraph 9;
(c)Alleged contravention at paragraph 13;
(d)Alleged contravention at paragraph 15;
(e)Alleged contravention at paragraph 17;
(f)Alleged contravention at paragraph 19;
(g)Alleged contravention at paragraph 21;
(h)Alleged contravention at paragraph 23;
(i)Alleged contravention at paragraph 25;
(j)Alleged contravention at paragraph 27;
(k)Alleged contravention at paragraph 35;
(l)Alleged contravention at paragraph 37; and
(m)Alleged contravention at paragraph 39.
Leave is granted to the father to withdrawn his application for contravention filed 2 July 2008 in the Federal Magistrates Court of Australia.
The contravention alleged at paragraph 11 of the contravention filed by the father on 6 June 2008 in the Federal Magistrates Court of Australia is found proven, no penalty imposed.
The contravention alleged at paragraph 29 of the contravention filed by the father on 6 June 2008 in the Federal Magistrates Court of Australia is found not proven.
The contravention alleged at paragraph 31 of the contravention filed by the father on 6 June 2008 in the Federal Magistrates Court of Australia is found proven.
The contravention alleged at paragraph 33 of the contravention filed by the father on 6 June 2008 in the Federal Magistrates Court of Australia is admitted.
The parties are to attend upon and complete a Parenting After Separation Course as nominated by the Manager of Child Dispute Services of the Newcastle Registry of the Family Court of Australia and for this purpose both parties are to contact the Manager of Child Dispute Services at the Newcastle Registry of the Family Court of Australia within seven (7) days of the date of these orders to obtain a referral for the appropriate programs.
The parties are to then contact the relevant service provider within fourteen (14) days of the date of the referral and undertake and complete any assessment or intake procedures as required by that service provider.
The parties are to then enrol in the first available courses offered by the service provider, attend upon all appointments scheduled by the service provider, and complete the programs as soon as is reasonably practicable.
The matter is adjourned to 10.00am on 15 April 2009 for final hearing (2 days allowed), before me.
All affidavits upon which the parties intend to rely are to be filed and served not later than 4.00pm, 28 days prior to the date fixed for hearing.
I DIRECT that the parties forward to my Associate a list of affidavits, together with a list of issues and any amended minute of orders sought, no later than 3 working days prior to the date for final hearing.
The dates scheduled for the Family Report interviews in July are vacated.
NOTATION
THE COURT NOTES the parties will be contacted by the Primary Dispute Resolution team to advise of a new date for the Family Report interviews.
IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Jacobs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2893 of 2007
| MR JACOBS |
Applicant
And
| MS JACOBS |
Respondent
REASONS FOR JUDGMENT
In this matter an application was filed by the father on 6 June 2008 in which he alleged that the mother had numerously contravened Orders made on 27 November 2007. Those orders were made with the parties’ consent at times when both of the parents were legally represented.
The children of this relationship are W born (omitted) 1999 (“W”), X born (omitted) 2000 (“X”), Y born (omitted) 2002 (“Y”) and Z born (omitted) 2004 (“Z”).
At the outset the mother's solicitor took objection to each of the contraventions alleged, which in total numbered 37. On hearing preliminary argument I was satisfied that 33 of the allegations were not matters which were properly the subject of a contravention application and I struck those matters out.
There remained then four allegations of contravention for me to deal with. The mother's plea in relation to each of those four counts was a plea of “not guilty”. However, at the conclusion of the mother's solicitor's submissions the concession was made that a denigration of the father had occurred on 16 May 2008 when the mother referred to the father as a “prick”.
The concession has been made appropriately, in my view, that the use of such language constitutes a denigration. Accordingly on this count the contravention is, on an unchallenged basis, admitted and found proven.
Dealing then with the remaining three alleged contraventions, the first is set out in para.11 of the contravention application which refers to the enrolment of Y at the (omitted) Public School without discussion with or notification to the father by the mother. The gravamen of the allegation is that the mother's steps in relation to the enrolment of Y contravened Order 1 of the Consent Orders which is an Order that gives the parents, on a continuing basis, shared parental responsibility in relation to the long‑term care, welfare and development of the children. The mother's solicitor, at the outset of his submissions, appropriately conceded that the concept of long‑term shared parental responsibility does extend to schooling and I accept that interpretation, which accords with authority on this matter.
The father says that the first he had been informed of the child's enrolment in relation to the (omitted) Public School took place on the first day of the child's attendance at school. The mother's evidence, and this is not in issue, is that she forwarded to the father a newsletter from the school towards the end of 2007 and that within that newsletter there was reference to an orientation day for kindergarten enrolees in the following year 2008. The mother concedes in her evidence that, other than forwarding this document, she did not take any steps to inform the father as to Y's proposed enrolment.
While the father says in his evidence that he attempted to discuss the issue with the mother there is no evidence put by either the mother or the father to the effect that the father proposed that Y would, while he continued to live in (omitted), attend a school other than the (omitted) Public School. There is certainly no evidence proffered by the father to the effect that he proposed that Y attend any other school whilst Y continued to live in the (omitted) area. Indeed it was conceded by the father that two of Y's older siblings currently attend that school. It was also conceded by the father that, if asked about where Y would attend school whilst living in the (omitted) area, he would have agreed to enrolment in that school.
There is, imposed by the Order requiring the parents share parental responsibility, a requirement for parents to confer in relation to the issue of enrolment. Whilst it is understandable that the mother may have assumed that, absent hearing anything to the contrary, the father implicitly concurred with the decision to enrol Y in (omitted) Public School, it is clear, on the state of the evidence before me, that that was a decision that the mother made without actually sharing the process of exercising parental responsibility with the father.
I note that the father has himself taken only limited steps to assume the burden of parental responsibility in relation to that decision and there is, as I said previously, little evidence to suggest he took any steps to propose other than what in the event has occurred.
In the circumstances I am satisfied that the contravention has on the balance of probabilities been made out on the evidence before me.
However, because of the matters that I have referred to, specifically failure of the father to raise any alternative issue or constructive opposition, the fact that the older children were already attending that school without any evidence of complaint, the fact that the mother did in fact notify the orientation date by forwarding the newsletter, and the further matter which is the evident difficulties the parents have in communicating, I am not prepared to impose a penalty in relation to this matter, not withstanding that I have found that contravention proven.
The next alleged contravention is set out at paragraph 29 of the father's application, that is that the mother breached the requirements of Order 7 of the Consent Interim Orders by failing to notify the father of her residence details until 24 February 2008, not withstanding that she moved on 21 January 2008.
On the evidence before me what was established on the mother's evidence was that the process of moving took the mother a period of approximately 1 week from 21 January, during which she was moving from one household to the other.
Further the mother's evidence was to the effect that she advised the father, at least by 4 February, orally of the new address. She explains his evidence that he did not have that information from her orally by giving evidence that, at the time she informed him by phone, the father was talking over the top of the mother. The father denies that he raised his voice. However, during the period of time that he has been giving evidence it was apparent to me that the father has a capacity to talk over the top of other persons and, in those circumstances, I am not prepared to discount the mother's explanation as to what happened on this occasion.
In any event, the order itself does not require that the notification be given in writing, nor is there any requirement that the notification be given by any specific period of time. Obviously the intent of the order is that the parties would attend to providing these details within a reasonable period of time. The purpose of that would be for each of the parents to know where the children are living at any particular point, and also so that other obligations under the orders, including telephone time, could take place. There is no issue about whether or not the mother provided the father with an appropriate telephone number. That is not the subject of complaint by the father and it is clear that that detail was provided.
On the evidence before me there is no basis upon which I would prefer the evidence of the father to the effect that he did not receive the detail of the place of the mother's residence until 24 February 2008, over the explanation given by the mother as to the provision of detail of the residence orally and by phone. In those circumstances I am not satisfied to the requisite standard that the allegation is made out and so I dismiss the contravention alleged in paragraph 29 of the father's application.
The remaining contravention for me to deal with is the contravention alleged at paragraph 31 of the father's application. The gravamen of this allegation is that in front of the children the mother said the words to the effect of:
“See, Z, your daddy doesn't want to see you.”
This, it is said, look place at least in the hearing of Z and X. The father also alleges that the statement or words to that effect were said on more than one occasion. He alleges that it occurred at least two times. I do not propose to deal with the other matters set out in the paragraph of the statement of the alleged contraventions relating to the allegation with which I am dealing.
By explanation the mother says that she did not say the words that the father attributes to her. However, she concedes that she said the words to Z:
“Daddy doesn't want you.”
In his submissions the mother's solicitor said that I would not find that this is a denigration of the father such that a breach of Order 10 could be made out, if I found that the statement was limited to the events of the particular day, that is 16 May 2008.
I find that, on the evidence, the father has not established that the mother said on the number of times that he asserts the statement set out in his allegation. However, I am satisfied that the mother, in saying the words that she concedes that she used, has by that breached the non‑denigration requirements of paragraph 10 of the Orders.
It seems to me, particularly in the context of the heated argument between the parents that took place on 16 May 2008, that to have said to one of the children something of the sort of the admitted words involves the children in the dispute between the parents. It does so in circumstances where there was already a potential for some distress amongst the children, either because two of the children were going to be disappointed in seeing their father because the father's position was that only two should go with him, or that the other two of the children would be disappointed because they wouldn't be attending the promised rugby match in Sydney.
It is to the mother's credit that she sent a message to the father a little later that evening in which she asked him to apologise to the two children about the exposure of them to the upset that had occurred that night. I note that her explanation that she took this step is something that was not challenged by the father during the course of the mother's oral evidence.
In the circumstances I am satisfied that the contravention as set out in paragraph 31 is established on the evidence, and accordingly I find that contravention in paragraph 31 proven.
My conclusion as to penalty is this. Two of the counts of contravention have, on my assessment of the evidence, been established. Additionally there is uncontroversial evidence that the parents have fallen far short of the standard of communication and cooperation that is required of each of them if they are each to continue with their obligations to share parental responsibility and otherwise care appropriately for their children. Accordingly, I find that the appropriate Order for me to make is to Order that each of the parents attend a Parenting After Separation Program, and comply with all of the reasonable directions of the person nominated to be in charge of their enrolment and attendance at that program.
I Order that the parents each attend a parenting after separation program approximate to their place of residence and that they each comply and cooperate with any reasonable instruction from the director of the service provider.
I set the parenting proceedings down on 15 and 16 April for final hearing.
The next order that I make is that all affidavits be filed and served no later than 28 days prior to the date first fixed for hearing. It goes without saying given the non‑compliance with earlier orders for filing of material that I will expect affidavits to be prepared in a timely fashion.
A list of affidavits to be relied upon is to be filed and served no later than 3 days prior to the date first fixed for hearing. That gives me the list of affidavits that I am going to need to read.
The next matter is, I am vacating the date for the interviews for the family report that had been allocated for July and I am going to ask the person in charge of allocating reports to forward the date for new interviews to the parents. Accordingly a report will issue in due course.
The remaining matter then for me to deal with is the father's request, admittedly at my invitation on reading his application (a matter that Mr Rugendyke indicated some consent to), for parentage testing.
Nonetheless, I have taken the time between then and now to review the authorities on parentage testing and I am reminded in a very timely fashion by a recent determination of Coleman J delivered on 14 September 2007 that the appropriate Order for parentage testing should only be made in circumstances where there is a question in issue in the substantive proceeding. On my reading of the relevant material there is no such issue in this case.
I will quote now from the decision of his Honour. The authority to which I am referring to is Cousins & Harper and Ors [2007] FamCA 1135. The relevant paragraphs to which I take the parents commences at [17]:
That it is not difficult to understand why section 69W requires that parentage be a question in issue in substantive proceedings under the Act before parentage testing would be ordered. Quite apart from the fact that there would be no point unless parentage was a question in issue in the substantive proceedings parentage testing is obtrusive and subjecting children to parentage testing procedures, however innocuous or benign they may be, is not something that a Court acting in the best interests of the welfare of children would likely condone.
The following paragraph of the judgment continues:
Butler J recorded in the marriage of F and R 1992 Family Law Cases 92, 300 at page 79,274:
I cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest bone fide and reasonable belief as to the doubt. An objective test is not to be applied for the evidence in such applications is seldom, if ever, sufficient to enable the Court to come to any objective conclusion and if it were, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant's belief. However, in every case the interests of the child are paramount and that consideration may supersede the interests of the parties.
The judgment of Coleman J notes:
Significantly paternity was the threshold consideration in the proceedings before his Honour.
The next paragraph continues:
In the case of the marriage of Dickson, Mullane J refused to make an order for parentage testing where there is no evidence before me:
which could be regarded as putting the question of K's paternity in issue, in the proceedings between the parties.
There is a further paragraph that I wish to draw the party's attention to. This is at [31]:
Whilst there can be no doubt as to the appellant, as he then was in the case, earnestness, that is not a recognised basis for appellant intervention, nor is his curiosity with respect to the paternity of the children.
In the circumstances of this case it seems to me that it would be contrary to the best interests of the children for me to make an order for parentage testing. The matter has not formed part of the substantive issues. Even in the consent parenting Orders that the parties each signed whilst they were legally represented no issue has been taken as to the fact of the paternity of the children. The father, from the Bar table, has submitted to me that, on the basis of physical characteristics of the children, he has an issue about whether or not they are his children. In one paragraph of his substantive affidavit, a basis of his belief is a statement he says has been made perhaps on more than one occasion by the mother as to her approach to having sexual relations with other persons.
Having regard to the intrusive nature of parentage testing and also the probable effect on the children of finding that this issue is being raised by the person that they would now have known as their father for the entirety of their lives, I am not satisfied that parentage testing is a step that I could determine on the evidence before me as being in any way in the children's best interests. Accordingly, I do not propose to make such an Order at this stage.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Housego FM
Associate:
Date: 5 August 2008
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