K and K
[2003] FMCAfam 143
•14 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & K | [2003] FMCAfam 143 |
| FAMILY LAW – Children – residence – interim orders – ex parte orders made in local court – separate representation of children – allegations of abuse. Family Law Act 1975 Kennedy (1993) 17 Fam LR 324; FLC 92-409 |
| Applicant: | K A K |
| Respondent: | M P K |
| File No: | PAM 1354 of 2003 |
| Delivered on: | 14 April 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 11 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Harman and Co |
| Counsel for the Respondent: | Ms Carr |
| Solicitor for the Respondent: | Sanderson Partners Lawyers |
ORDERS
The Orders made by the Local Court of New South Wales at P are set aside.
The Respondent husband is to return the children H K born 8 June 1994 and B K born 18 August 1995 to the care of the Applicant wife by 6.00 pm on Saturday 19 April 2003.
Pursuant to section 68L of the Family Law Act, the said children are to be separately represented in these proceedings AND I REQUEST that the Legal Aid Commission of New South Wales arrange such representation.
UNTIL FURTHER ORDER neither party is to use any form of physical chastisement on any of the children or leave any of the said children unsupervised.
UNTIL FURTHER ORDER the Respondent husband is to have contact with the said children H K and B K as follows:
(a)for each alternate weekend during school term time from 6.00 pm on the Friday to 6.00 pm on the Sunday continuing to 6.00 pm on the Monday if that Monday is a public holiday commencing on the first Friday after school term resumes;
(b)for the first half of each school holiday period;
(c)from 9.00 to 6.00 pm on Father’s Day in each year if that day falls on a weekend when the husband would not normally be entitled to contact;
(d)for not less than two hours on each of the children’s birthdays; and
(e)at such other times as the parties shall agree.
UNTIL FURTHER ORDER the Applicant wife is to have contact with the child T K born on 6 January 1993 as follows:
(a)for each other weekend during school term time from 6.00 pm on the Friday to 6.00 pm on the Sunday cointinuing to 6.00 pm on the Monday if that Monday is a public holiday commencing on the second weekend after school term resumes;
(b)for the second half of each school holiday period;
(c)from 9.00 am to 6.00 pm on Mother’s Day in each year if that day falls on a weekend when the wife would not normally be entitled to contact;
(d)for not less than two hours on the said child’s birthday; and
(e)at such other times as the parties shall agree.
The Applicant wife is not entitled to exercise contact on Father’s Day.
For the purposes of exercising contact pursuant to these Orders:
(a)the first half of the school holidays will be deemed to commence at 9.00 am on the day after school term finishes and to conclude at 6.00 pm on the middle Saturday; and
(b)the second half of the school holidays will be deemed to commence at 6.00 pm on the middle Saturday and to conclude at 6.00 pm on the day before the children are required to recommence school.
The matter is adjourned to 19 May 2003 at 10 am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1354 of 2002
| K A K |
Applicant
And
| M P K |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the wife in respect of the children of the marriage, H K born on 8 June 1994 and B K born on 18 August 1995.
The application in respect of those two children is that they should reside with the mother. On an interim basis the application in respect of the other child of the relationship, T K who was born on 6 January 1993 is that she should reside with the father, who is the respondent.
The applicant also seeks orders that the father should return the two boys H and B to her care and that he should be restrained from removing the children from her care and that there is a further order that the father should have certain contact with the boys and that the mother until further order should have contact with the child T.
The interim orders sought by the father are that all three children should reside with him, that they should have contact on an alternate weekend, half of the school holidays and telephone contact basis with the mother and that there should be orders restraining the mother from exerting any excessive physical force upon the children and allowing any of them to be unsupervised at any time while they are in her care.
The parties were married on 29 April 1995 and separated in July of 2001. As I said, there are the three children of the marriage. When the parties separated they were residing in G Park. The applicant wife moved out. At that stage the children stayed with the husband. In fact, all three children continued to reside with the respondent husband until March 2002. The husband has since formed a new relationship with a lady. In March of 2002 the boys H and B came to reside with the applicant wife, the child T remained with the respondent husband. The former matrimonial home was sold in August of that year and the respondent husband commenced to reside with the lady with whom he had formed a relationship.
In January of 2003 the applicant wife moved to the F T area and has taken up residence with her sister, M. On 25 March according to the applicant wife the respondent told the applicant that he had obtained an apprehended violence order against her. The situation was that the child H was attending the I Christian School, B was attending the F T Public School awaiting a vacancy, so the mother says, at the I Christian School and the applicant wife said that the husband had agreed to her move in November of 2002.
What the wife complains of is that over the weekend 21 to 23 March the children H and B went to the respondent husband for contact. She says that on the 23rd, the Sunday, he asked for an extra night's contact to which she agreed and she says that on the Monday, the 24th, she was telephoned by the husband's father, G, who said that the children would not be returned.
Now, the husband's account from his affidavit is that the parties separated on 28 July 2001. In November 2001 he said he formed this relationship with a lady called R N. In the husband's affidavit the boys H and B said to him in March of last year:
"We would like to live with mum."
On 7 April 2002 he in fact moved the children, H and B, so they took up residence with the mother. In August of last year he then commenced residing with R N and that situation continues.
In December of 2002 the husband said that H and B said to him that they wanted to live with him. He approached the wife, but she refused to allow the two children to return to live with the husband. Contact continued.
In the middle of December 2002, according to the husband, the applicant wife said to him that she wanted to move to F T. In paragraph 21 of his affidavit the husband said that he said to her:
"As long as the kids are happy I don't have a problem."
He then spoke to the boys H and B and each one said:
"We want to move to Wollongong with mum"
or words to that effect. On 3 January 2003 the boys H and B and the applicant wife moved to F T. From 4th to 25th January the boys spent time with the father on contact.
The respondent husband, the father, makes allegations against the mother that she has physically abused the children. In 1999 he said that she scratched the child T. In 2000 he complained that the mother shaved the child's hair off. The mother said it was because the child had nits.
In paragraph 30 of his affidavit he describes an incident in December 2003 between Christmas and New Year when a friend of the applicant wife called D S said that she had in fact punched the child B. He, the respondent, put this to the applicant and she denied hitting the child. She denied this on 25 January.
Two days later on 27 January the wife advised the husband that the child B had had a fall and, indeed, he had suffered some injuries, including a fracture. In February of this year the respondent said that he noticed bruises on the child H and he made a report of that to the Department of Community Services. On 22 March, according to the husband, the boys H and B alleged that their mother had abused them in a variety of ways.
He did not return the children after contact on 23 March. On Monday, 24 March, he applied in P Local Court and that application was listed urgently returnable on Thursday, 27 March.
In paragraph 4 of the husband's affidavit filed in these proceedings a paragraph, I might comment, that runs over some three pages, the husband described how he did not return the children. On 25 March the applicant sought their return. They were at the home of the respondent's friends S and M K in P, the boys were with him, the child T was at school and the applicant, on the respondent's evidence, stormed right in through the back door of the house and in no uncertain terms demanded that the children be returned. He says that she said:
"Where are my boys? I'm taking them now. I've talked to Legal Aid and you have no right to do this."
and he said:
"You're not taking the kids, leave them alone."
A scene developed, including some scuffling. The people who owned the house, M in particular, asked the applicant to go outside. The applicant, on the respondent's evidence, used some obscene language and the lady, M, telephoned the police. It soon developed and eventually the mother left, but not before, on the respondent's evidence, he said when she asked him:
"You can't do this. Don't touch me. Why did you do this for?"
He says he said:
"Because you can't keep your hands off the kids. I've filed for custody and an AVO, see you in Court on Thursday."
She said:
"I'll get them back
and then drove off.
On 27 March the respondent husband attended the P Local Court and says in paragraph 5 of his affidavit:
"As a result of K's failure to appear on that day the matter was heard undefended. I appeared before Magistrate Price and as a result of oral evidence given by me, together with my earlier affidavit, Magistrate Price made an order."
A copy of that order is annexed and the order says:
"Upon application to the P Local Court"
well, it says on 10 April 2003, but that is incorrect –
"the Court made the following orders. Pending further orders and on an interim basis that the children T L L K date of birth 6 January 1993, H G K date of birth 8 June 1994 and B H K date of birth 18 August 1995 reside with the applicant father.
That the proceedings are adjourned till 10 April 2003 at 10 a.m. at P Local Court."
The application filed by the husband was filed at a time when he was acting for himself. He did not at that stage have the benefit of advice from his solicitor. In his application, part (C) par 6 when asked to state precisely the orders you seek he writes down three by residence, one by AVO. Now, of course, Apprehended Violence Orders are not obtained under the Family Law Act. They are, in fact, dealt with in State legislation. So despite the fact that his shopping list included three residence orders and an AVO the application that he filed only related to parenting orders.
In par 27 of his affidavit in support of the application he gives details of what he says are child abuse and/or family violence factors and he said, “I have
"filed several complaints with DOCS and K hitting and bruising the children. She regularly leaves the children unattended for up to six hours while she goes to work at the pub. She leaves the children alone even when she is there and lets them play outside on a main road. Even her boyfriend has complained to her about the way she treats the children. My daughter was moved in and out of bed three times"
Something is then obscured.
"At 1 am so that they could make room for her friends to sleep over."
The affidavit filed by the respondent in these proceedings refers to two notifications to the Department of Community Services. I will return to those later. In Paragraph 34 of the affidavit which, extends over some two pages. he describes some concerns that he has as far as the children's welfare and he said that he said to the applicant wife:
"If you or your boyfriend ever touch the kids again I will mow you down."
"Mow you down", according to his affidavit means apparently ‘commence Court proceedings’.
When the matter came before the Local Court a P on 27 March the orders were made ex parte. The proceedings from the P Local Court have since been transferred. On 10 April an order was made purporting to transfer the application “to the Federal Magistrates Court (Local Court order suspended). By consent transfer to Federal Magistrates Court on Friday, 11 April 2003 at 10 am.”
Well, what are the issues before the Court? There are really two separate sets of issues. The first is the applicant wife in these proceedings seeks that the ex parte orders made by the P Local Court be set aside. I suspended their operation when the matter was first before the Court but on Friday I was asked to actually set them aside. What is then sought, of course, by both parties is that I should make interim orders as far as residence and contact is concerned so that the matter can proceed. There would also be directions needed so that the matter can go to a final hearing.
Much has been put to me about the fact that the orders were made on an ex parte basis and it is relevant that the application and affidavit in support had not been served on the wife when the matter was before the Local Court. So the orders were dealt with ex parte.
It is worthwhile, to my mind, to look at the situation relating to ex parte orders. I have had recourse to make comments about orders obtained ex parte in the past and the matter has been the subject of a number of pronouncements in the Family Court and in the Full Court of the Family Court. In his decision in Kennedy v Kennedy (1993) 17 Fam LR 324 FLC 92-409 Baker J said:
"Ex parte orders have become the bane of this Court. An ex parte order, in my view, should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk."
Order 12 of the Family Law Rules which applies in the Family Court sets out the way urgent ex parte applications are to be made and the rules of the Federal Magistrates Court set out that part 5 in rule 5.03 how urgent orders are sought. It is perhaps useful to look at the terms of rule 503 as far as obtaining ex parte orders is concerned. Part 5 of the rules of this Court relates to urgent applications. Rule 5.03 says:
"That unless the Court otherwise orders the applicant must establish by affidavit or with the leave of the Court orally:
(a)whether there are previous proceedings between the parties and if so the nature of the proceedings; and
(b)whether there are in any current proceedings in any Court in which the applicant or the respondent are parties; and
(c)the particulars of any orders currently in force between the parties including the Courts in which they were made; and
(d)the steps that have been taken to tell the respondent or the respondent's legal representative of the applicant's intention to make the application or the reasons why no steps were taken; and
(e)the nature and immediacy of the damage or harm which may result if the order is not made; and
(f)why the making of the order is a matter of urgency and why an abridgement of the time for service of the application and the fixing of an early hearing date would not be more appropriate
Rule 503(g) relates to financial matters only.
The case of Sieling v Sieling reported in (1979) Fam LR 713 FLC 90627 included the quote at page 78254:
"Whenever a Court acts ex parte it is departing from one of the primary rules of natural justice that each party should be given an opportunity to present his or her case to the Court. For this reason an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.
The matters which the Full Court said that the Court should consider when asked to make an ex parte order are:
"The nature and imminence of the risk to the applicant, to a child, to property interests or to a third party, any hardship or prejudice to the respondent and children or to any third party which may arise from proceeding to make the order ex parte or the order relates to property whether there is a need to protect the respondent by requiring the applicant to give an undertaking as to damages, the possible consequences of delaying the order until the respondent can be heard and the steps which could be taken to give notice to the respondent and the need to protect the respondent by ensuring that the order is clear in its terms and it is served within the shortest possible time, that a return date is fixed and that the respondent be informed of his rights to apply to have the matter brought on before the return day."
I look also at the decision of the Full Court of the Family Court in the matter of Stowe (1980) 6 Fam LR 75; (1981) FLC 91-027. In the matter of Stowe this was a matter where ex parte injunction was made and the principle was laid down:
"In the limited circumstances where it is necessary to make an ex parte order the onus rests upon the applicant for the injunction both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order. This is so irrespective of whether the respondent formally applies to set the order aside. The Court's discretion could miscarry if the onus were put on the respondent to satisfy the Court that the order should be discharged."
Now, I have the benefit of the file from the Local Court at P relating to the making of the order. It will be recalled that the respondent had not been served. It is quite clear that when the application was filed on 24 March 2003 the Clerk of the Local Court waived the service fees and on that same day forwarded the service documents to the Sheriff's Office at W. The letter said:
"Kindly arrange service of the within document upon the respondent at the address specified on the application. The service fees due have been waived."
Documents were returned and there is a notification on the Court file to say:
"Process received at S-office (meaning Sheriff's office) on hearing date, to wit the 27th."
It is clear that when the matter came before the learned Magistrate at P on 27 March that he was aware that the respondent had not been served. On the Bench sheet he notes that the applicant appeared in person and that there was no appearance by the respondent. He goes on to note:
"Sheriff's officer at Wollongong advises" –
the next word is unclear -
"but not served at this time".
His Worship then proceeded to hear the evidence. He clearly relied on the husband's affidavit and he took some oral evidence. His Worship noted and I quote from his notes:
“(1)No previous Court orders,
(2)DOCS notifications,
(3)police intervention."
His Worship then made the interim orders to which I have referred. That was the basis upon which his Worship made those orders. Certainly the situation was there were no previous Court orders and his Worship was aware that the respondent had not been served.
One of the points that he took into account was the fact that there were notifications to the Department of Community Services. Paragraph 27 of the affidavit filed before his Worship related to several complaints with DOCS about K hitting and bruising the children. Now, the respondent refers to those complaints in two parts of his affidavit. In par 34 page 20 referring to a date in February, the date of which the respondent was not clear either the 17th or 21st – he said at the bottom of page 20:
"During the course of the next day or so I telephoned DOCS and made a further report in relation to this incident. The report number is E16738025."
He said that:
The DOCS office said to him: “you do not have to return the children to K. There are no residence orders. We will send someone to see K and investigate.
He said:
I'd appreciate if you don’t do that. I've discussed it with her and I just want this incident noted for the record.
The other incident relating to the notification of the Department of Community Services was as a result of the allegation between Christmas 2002 and New Year 2003, the allegation of the wife having struck the child B on the face. The father says he had a conversation with B. He said:
"Did your Mum hit you in the face?. He said, ‘Yes’. The father said, “what happened”? The child said, ‘Mum took me upstairs and she said something to me and she hit me in the face and then she said she was really sorry and she wouldn't do it again’."
He goes on to say:
37. "Either that day or the day after I telephoned DOCS and made a report in relation to this incident. The reference number is 023640169. At that time I said to the officer `please, don’t take any action I want to try and talk to K about it first. I just wanted to make the report on record. I want to keep the incident private at the moment.’
That is the only evidence of notifications to the Department of Community Services. Two notifications and in each case the respondent husband said that he did not want the department to intervene. The other matter that the learned Magistrate took into account was the question of police intervention. Now, the reference to police intervention relates to the incident on 25 March when the applicant wife turned up at the home of S and M demanding the children back after the father had kept them after contact and an unseemly altercation took place when M telephoned police.
Now, the affidavit which is quite a lengthy affidavit filed in these proceedings contains a number of allegations of abuse. The precipitating incident appears to be a conversation between the father and the children and shortly before contact took place in March when the children made a number of allegations on unspecified dates – a variety of allegations of abuse. It was this that apparently prompted the father to act in the way that he did.
Well, is this evidence sufficient to justify obtaining orders in a way that would depart from the primary rule of natural justice? In other words should there have been orders made when it was clear that the respondent had not been served with the documents? I am of the view that this was a case where it was inappropriate for ex parte orders to be made. It may well have been an appropriate case for service at short notice of the application and, indeed, in fairness to the respondent I note that at that stage his solicitors generally were not acting for him. He did not have the benefit of their advice. I am of the view however that the ex parte orders should be set aside and I propose to make an order setting aside the orders made by the P Local Court.
Well now, I heard submissions on Friday about what orders should be made. Ms Grew appeared for the applicant wife and Ms Carr, of counsel, appeared for the respondent husband. There were interim residence orders sought and, indeed, I was referred to the well known decision of the Full Court of the Family Court in Cowling v Cowling (1998) FLC 92801. The Full Court of the Family Court in Cowling said that:
"In determining an interim residence application the best interests of the child are the paramount consideration. These interests would normally be best met by ensuring stability in the child's life pending a full hearing of all relevant issues. Where at the date of the hearing the child is well settled in his environment that stability will usually be promoted by an order providing for a continuation of that arrangement unless there are overriding indications relevant to the child's welfare to the contrary. Such overriding indications would include convincing proof that the child's welfare would be really endangered by the child remaining in that environment.
The Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in the circumstances. In determining that weight the Court may take account of the circumstances giving rise to that fact. It may examine whether the current living arrangements arose by virtue of some agreement between the parties as a result of acquiescence or the unilaterally imposed by one party on the other, the duration of the current living arrangements and whether there's been any delay in instituting proceedings or any proceedings being listed for hearing.
In determining whether the child is living in a well settled environment consideration should be given to the wishes, age and level of maturity of the child, the current and proposed arrangements for the day-to-day care of the child, the period during which the child has lived in the environment and whether the child has any siblings and where they reside, the nature of the relationship between the child, each parent and any other significant adult and the child's sibling, the educational needs of the child.
Now Ms Carr, of counsel, on Friday sought to impress on me that the Court take a global view of the arrangement since the parties separated to work out a well settled environment. Indeed, it was put that the three children living together prior to the boys going off and living with the mother represented a well settled environment and that apparently there had not been one since except when the children were returned to the care of the father by a means of his retaining the children after contact.
Well, I am not of that view. I look at the fact that from March or April 2002 until March of this year the two boys were living with their mother. The two boys, in fact, were living with their mother with the consent of the father and as a result of what the father said was the boys' expression of their wishes. It is certainly true that in the last part of last year the mother made it clear that she wished to return to the F T area near W and, indeed, in January she did just that. The evidence, again on the father's affidavit, is that she did so with the consent of the father and, in fact, contact took place in January with the boys going to spend the time with their father.
So the arrangement up to March when the father retained the children unilaterally was to my mind an arrangement that had gone on for about a year and that was with the acquiescence, in fact the active consent of the father. That arrangement was ended by the unilateral action of the father in retaining the children after contact and going off and seeking and obtaining an ex parte order.
There is certainly in the father's affidavit clear expressions that the boys have expressed certain wishes and, indeed, that the child T has expressed certain wishes on more than one occasion. I have at this stage no independent evidence of the wishes of the children although the father has said that at the end of last year the boys said they wanted to return to him but then later they said they wanted to go to Wollongong with their mother.
Certainly it is a situation where there has been a separation of siblings and that appears to be an arrangement with which the parties have acquiesced. As I said the current situation was one unilaterally imposed by the father in the situation. There has certainly been no delay in the applicant instituting proceedings. These proceedings were commenced and shortly after the proceedings in the P Local Court they first came before this Court on 7 April.
I am of a view that until there can be a full hearing which would involve the Court obtaining independent evidence as to the wishes of the children for the time being the children should be returned to the care of their mother. There would normally be contact during the school holidays so I do not propose that the children return this afternoon. I am of the view that the children, however, should be returned by Saturday evening.
There is another issue which needs to be raised and that is the allegation of abuse of the children which is a matter that causes me some concern. It is a matter that needs thorough investigation and whilst I have been critical of the unilateral actions taken by the father prior to his obtaining legal advice it does not mean that I do not regard allegations of abuse of children lightly. I indicated to counsel for the respondent and the solicitor for the applicant on Friday that I envisaged that I would be making an order pursuant to section 68L of the Family Law Act requiring the children to be separately represented. Indeed, both the applicant and the respondent's legal advisers indicated their agreement with that approach. I am, of course, mindful of the guidelines set out by the Full Court of the Family Court in the decision of Re K which is reported in 1994 and their appear to me to be a number of factors which bring this matter within the Re K guidelines.
There are allegations of physical abuse of the children. It appears that at this stage there is certainly an intractable conflict between the parties. There was not until recently but now it appears to be at a stage of considerable hostility. There is also evidence, certainly on the father's side, of all three children expressing strong views as to where they wish to live and, indeed, that is a feature throughout his affidavit of the boys, in particular, indicating views and in fact he quotes them directly. Well now, that is certainly the father's evidence that the children, and to some extent that includes T, have expressed views as to where they want to go and I am of the view that having the children legally represented would be a way of obtaining independent evidence from these children who appear to be not shy in expressing their views.
It is also a situation that until recently the two boys were living with the mother and their sister living with the father. If indeed it is contemplated that the siblings are to be separated on a final basis that is a matter that the Court would certainly take into account. Indeed, the interim orders sought by the mother relate to the children living separately although on a final basis the mother seeks that the three children should live with her. Either way it would seem to me that the child T is entitled to have a voice in these proceedings and certainly looking at the ages of these children, T being 10 years of age, H being eight years of age but will turn nine in June and B being seven years of age, they are all of an age where their wishes would be given some weight. Even with the younger children their wishes would not be irrelevant. This, to my mind, is clearly a situation where the children need to be separately represented.
All of this means that there are a number of orders which I propose to make.
Now, that leaves the situation, where I have set aside the ex parte orders. I have made certain interim orders for contact which will require the children to be returned to the care of the applicant on Saturday of this weekend and I have ordered the children be separately represented. It would seem to me that the matter should come back before this Court in about a month's time once the children have their own legal representation and the Court should hear what submissions the children’s representative should make at that stage.
The mechanics of contact have not seemed to have been much of a problem until now but until these present difficulties arose and I would hope that the mechanics of contact is something that can otherwise be sorted out.
There is one other issue, but it would seem to me, that I have made some findings in respect of the ex parte orders that are unfavourable to the Respondent at least at a time when he was not legally represented and it may well be that it would be more appropriate for the final proceedings to be heard by someone else other than myself. Unless anyone persuades me to the contrary I propose to list this matter for mention once the children are legally represented in front of one of my colleagues so that there would not be a suggestion that I would be regarded as biased one way or another, but it is the Respondent perhaps who might have some apprehension that I might perhaps be biased against him and it is important in these proceedings that the Court should be seen to be completely impartial on the final hearing.
Well, the day I had in mind to mention the matter again in front of one of my colleagues but if there is no objection to my dealing with the matter on a final basis I will retain it in my docket.
I will bring the matter back on Monday, 19 May 2003 for further mention at 10 am.
I require a transcript of my reasons for what has been rather a lengthy interim decision.
I would certainly be of a view that as I have set aside the orders of His Worship Mr Price that I should do him the courtesy of sending him a copy of that decision to indicate to him why I have taken the step of setting aside those orders in the circumstances.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 April 2003
0
0
0