M and M (No.2)
[2001] FMCAfam 179
•31 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M (No.2) | [2001] FMCAfam 179 |
CHILDREN – Contact – Best interests.
| Applicant: | B D M |
| Respondent: | M B M |
| File No: | ZC 2585 of 2001 |
| Delivered on: | 31 July 2001 |
| Delivered at: | Canberra |
| Hearing Date: | 31 July 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr FitzGerald |
| Solicitors for the Applicant: | Gordon Naylor & Associates |
| 2/95 Monaro Street, Queanbeyan, 2620 | |
| Counsel for the Respondent: | No Appearance |
| Solicitors for the Respondent: | Acting for self 47 M Street, N |
| Counsel for the Child Rep: | Ms Hughes |
| Solicitor for the Child Rep : | Legal Aid Office (ACT) PO Box 512 |
ORDERS
That the children, N R M, born 24 February 1989 and B J M, born
2 February 1990 have contact with the wife as follows:(a)each alternate weekend from after school Friday to 6 pm Sunday commencing on Friday, 10 August 2001;
(b)each Thursday from after school till 7.30 pm, commencing on Thursday, 2 August 2001;
(c)for one half of all school holidays, being the first half of those holidays, commencing in the year 2001 and each alternate year thereafter and the second half of the holidays commencing in the year 2002 and each alternate year thereafter;
(d)from 9 am to 6 pm on Mother's Day;
(e)contact falling on Father's Day shall be suspended from 9 am;
(f)the wife shall collect the children at the commencement of all contact periods and the father shall be responsible for collecting them from the wife's residence at the conclusion thereof;
(g)as otherwise agreed.
That otherwise all extant applications be dismissed.
That the wife have liberty to apply to set aside paragraphs (1) and (2) of these orders within 30 days of the date hereof on the filing of the following documents:
(a)an affidavit by her explaining in detail her non-attendance this day;
(b)an affidavit by an appropriately qualified medical practitioner as to the state of her health this day and any impact it may have had on her non-attendance at court this day.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA
ZC 2586 of 2001
B D M
Applicant
And
M B M
Respondent
REASONS FOR JUDGMENT
Proceedings
As I have already indicated, the matters that remain to be dealt with are the contact issue with respect to the children, B and N, as contained in the husband's Form 3 application of 25 June this year and as detailed in the wife's viva voce evidence given yesterday. There is also the balance of the applications contained in the wife's Form 3 application filed on 7 June 2001.
The matter of whether I should proceed in the absence of the wife this morning has caused me some real concern.
While a number of phone messages left on behalf of the mother indicate that she is unwell and that is the basis of her absence, I harbour strong suspicions about that explanation. Yesterday the wife failed to appear at the commencement of the proceedings and when she finally arrived, after a number of calls made to her, she said she thought the matter was listed for today. This explanation was not consistent with the court order of 25 June 2001 nor with the indication given by her that she would file part 2 of her affidavit at the court yesterday when the proceedings commenced.
Paragraph 13 of the husband's affidavit of 20 June 2000 sets out a similar set of circumstances with respect to other proceedings in the Magistrates Court. In addition, the file shows a series of non-appearances by the wife. And finally, paragraph 5.1 and 5.2 of the first report of Ms Connor indicate an unwillingness on the part of Ms M to accept common conventions and social systems including the legal system and documents, the lack of co-operation and failure to attend on a number of other occasions.
The issues
I do not propose to recite all of the relevant background material again as this was canvassed in yesterday's reasons for judgment. The husband's position as to contact in his Form 3 indicates that there should be alternate weekend contact and half the school holidays. The mother, in evidence yesterday, said she wanted to see her children every night of the week, each weekend and with four sleep-overs during the week as well as half the school holidays. The proposal postulated by the child representative is that there should be alternative weekends and one day each week from 3.00 to 7.00 pm and half the school holidays.
The husband, through his counsel this morning, agreed with that suggestion.
The law
The relevant law in relation to these matters, contact orders and specific issues orders, are parenting orders. They arise in proceedings under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underly those objects. They are subject to section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides in effect that children have a right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally it emphasises the desirability of regular contact and carries with it a clear understanding that the contact should be as frequent as it is appropriate and by the various means which are considered to be in the child's best interests.
In deciding the contact arrangements that will best promote the interests of a particular child the court must consider the various matters set out in section 68F(2). This subsection comprises a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (1) permits the court to take into account any other fact or circumstance that the court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed, and I refer to B v B, Family Law Reform Act (1997) FLC 92755.
Conclusion
I do not propose to particularise each of the matters arising under section 68F but I have taken those matters into account in deciding what is in the best interests of N and B. Indeed I draw some strong comfort from what is said in the psychologist's current report and I refer to paragraph 2.3 of that report. "N, as I have indicated, was very clear in her wishes. N said she would like to see her mother every second weekend and every Thursday afternoon after school."
"She said that she had enjoyed staying with her mother for the first week of the current school holidays." B was a little less clear but I got a pretty good indication of what he wanted from paragraph 3.3 and in particular it says this:
" When we further discussed the notion of him spending every weekend with his mother and none with his father B said that this would be pretty dumb. I got the impression that B was very torn by his conflicting loyalties to both of his parents and would prefer not to have to assume the responsibility of deciding how much time he would spend with each of them."
Finally, paragraph 4.3 of Ms Connor's report details her recommendations and I should say at this juncture that Ms Connor's reports, both the first and second, have been extremely helpful in making determinations in this matter. Paragraph 4.3 says that,
"As usual in such matters it is important to allow these children sufficient time with both parents while allowing them to be involved in their school and leisure activities. It would be unfortunate if B did not have sufficient leisure time with his father to allow him to participate in his father's family life. Spending every weekend with his mother would make this difficult and an alternative weekend arrangement with a further night of contact in the off week is recommended if Ms M can manage to share the transporting involved".
Accordingly, the orders I intend to make with respect to contact will be in accordance with those recommendations of the counsellor and indeed they also accord with the proposals of each of the Child Representative and the Father. So far as the balance of the mother's Form 3 application is concerned, I intend to dismiss it in its entirety. It is made up of matters that have been already been dealt with, issues I am not entitled to deal with and finally with respect to paragraph (4), an application which has no material to support it.
I order as follows:
(1)That the children, N R M, born 24 February 1989 and B J M, born 2 February 1990 have contact with the wife as follows:
(a)each alternate weekend from after school Friday to 6 pm Sunday commencing on Friday, 10 August 2001;
(b)each Thursday from after school till 7.30 pm, commencing on Thursday, 2 August 2001;
(c)for one half of all school holidays, being the first half of those holidays, commencing in the year 2001 and each alternate year thereafter and the second half of the holidays commencing in the year 2002 and each alternate year thereafter;
(d)from 9 am to 6 pm on Mother's Day;
(e)contact falling on Father's Day shall be suspended from 9 am;
(f)the wife shall collect the children at the commencement of all contact periods and the father shall be responsible for collecting them from the wife's residence at the conclusion thereof;
(g)as otherwise agreed.
(2)That otherwise all extant applications be dismissed;
(3)That the wife have liberty to apply to set aside paragraphs (1) and (2) of these orders within 30 days of the date hereof on the filing of the following documents:
(a)an affidavit by her explaining in detail her non‑attendance this day,
(b)an affidavit by an appropriately qualified medical practitioner as to the state of her health this day and any impact it may have had on her non-attendance at court this day.
I certify that the preceding eleven(11) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Sylvia Loveless
Date: 1 October 2001
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