Maj and MMCA (No.2)
[2003] FMCAfam 517
•5 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAJ & MMCA (No.2) | [2003] FMCAfam 517 |
| FAMILY LAW – Contravention of existing contact orders – whether reasonable excuse made out – compensatory contact – child’s best interests. Family Law Act 1975, ss.70NE, 70NEA, 70NG(1) |
| Applicant: | A J M |
| Respondent: | M C A M |
| File No: | PAM355 of 2003 |
| Delivered on: | 5 November 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 5 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
The Respondent appeared on her own behalf.
ORDERS
Counts numbers 1, 2 and 3 of the Application filed on the 2nd September 2003 alleging contravention of the Orders made on the 30th June 2003 are dismissed.
Count number 4, alleging that the Respondent Mother did on the 29th August 2003 contravene Order 5(a) of the said Orders, is found proved.
The Respondent has not proved that she had a reasonable excuse for the above contravention.
Pursuant to section 70NG(1)(b) of the Family Law Act the Applicant Father is to have contact with the child B A M born 26th April 1995 for a period of two (2) days to be added to the school holiday contact in the forthcoming Christmas/January school holidays as provided by Order 5(c) made on the 30th June 2003.
UNTIL FURTHER ORDER:
All contact pursuant to Orders 5 and 6 is to take place simultaneously so that the children B A M and L C M will spend each period of contact in the company of each other whilst in the care of the party in whose favour the contact order is made.
Neither party is to exercise any physical chastisement on either of the said children or permit any third party to do so.
Neither party is to use any offensive, derogatory or insulting language to the other at any contact changeover or permit any third party to do so.
Telephone contact pursuant to Order 11 made on the 30th June 2003 is to take place so that each of the said children is permitted to telephone the other party directly without the intervention of any third party.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 355 of 2003
| A J M |
Applicant
And
| M C A M |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court today is an application by the father asking the Court for orders against the mother for contravention of orders made by this Court on the 30th June 2003. The orders alleged to have been contravened relate to the child, B A M who was born on
26 April 1995. That child has been residing with her mother who is the respondent to the application, whilst the elder daughter, L, who was born on the 5th January 1990, remains residing with the father.
The parents are divorced and each of them has formed a new relationship. The connection however remains between them in that they are the father and mother of two daughters and the relationship between them contains some elements of acrimony and mistrust. Events since the orders were made have not alleviated the mistrust.
There were four allegations made by the father. First, that the mother had contravened the orders by not permitting the father's contact with B during the July school holidays. Second, the mother had not permitted weekend contact on the weekend 25 to 27 July. Third that the mother had contravened order 11 by interfering with telephone calls between the father and B. Fourth, that the mother had contravened order 5(a) by not permitting face-to-face contact on the weekend commencing 29 to 31 August.
The parties filed a number of affidavits and elected to allow most of the evidence on affidavit to go in unchecked. The first allegation relating to the contravention of the orders for school holiday contact. At the conclusion of the applicant's case I was not satisfied that a case to answer had been made out. The situation was that the father, in his evidence, was unaware of the terms of the order until the time had elapsed, although he was indirectly made aware by the mother writing to him, indicating that the child, B, was not in a position for contact to take place on that occasion. I was not satisfied there had been a prima facie case and that count number one in respect of the application will be dismissed.
In respect of counts 2, 3 and 4 relating to weekend contact in July, interference with telephone calls and weekend contact at the end of August, I found that a prima facie case had been made out.
The evidence relating to the face-to-face contact at the last weekend in July relates to the mother's concerns about B's emotional well being. The mother had said that the father's new wife had struck the child, this having come from a complaint allegedly made by the child to the mother and that the child was somewhat traumatised. As a result, contact did not take place. What did happen, however, was that, on the evidence before me at the mother's instigation, contact took place on the following weekend.
I am satisfied that in respect of that circumstance the mother has proved a reasonable excuse. The reasonable excuse must be proved by a respondent and it is proved on the balance of probabilities according to section 70NEA of the Family Law Act.
Section 70NE gives a list of examples to help the Court decide on the median or reasonable excuse, although it is not an exhaustive list.
There can be a breach of a contact order to protect the health or safety of a child under sub-section 70NE(3), and I am of the belief that the evidence shows a belief on reasonable grounds by the mother that the deprivation of contact was necessary to protect the health or safety of the child on that weekend. I am mindful of the fact that a respondent must show that the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to, in this case the child. The fact that contact took place the very next weekend is, to my mind, an indication of the mother being mindful of her obligation under that order. So I am satisfied that whilst the contravention took place, that a reasonable excuse has been established.
In respect of the contravention that is alleged relating to the interference with phone calls, the mother denies that that has been done, although she indicates that one of the children's grandparents, at one stage, told B to ask the father about the return of certain of her items. The father indicates that a clicking noise has been heard in the telephone; the child's voice is becoming faint, which is an indication that some person has been perhaps listening in on another phone.
It is the mother's view that she has not attempted to interfere or prevent the telephone conversations. In the long run it is up to the applicant to prove the case on the balance of probabilities. The evidence, to my mind, is not strong enough to reach that stage and if it is not proven then I cannot find the allegation to be proved so that allegation will be dismissed.
The final allegation relates to contact on the weekend 29 to 31 August. On that occasion what had happened was that the two children were going to spend weekends at the residence of each other parent, the child B became distressed, there was an unseemly incident in which there was some acrimony. The father accuses the mother's father of interfering and blocking his way. The mother says that the father drove out over a gutter and a garden in a way that would have caused danger to the general public.
On any view of the incident it was most unsatisfactory. What happened was that contact did not take place and there is no evidence of any attempt made to rectify that situation. I am satisfied that a contravention has been proved in respect of count number 4.
What I must now look at is whether the Court, having jurisdiction under the Family Law Act, has previously determined that the respondent has, without reasonable excuse, contravened these orders.
On the evidence before me it is just not possible to do so unless there was some parallel proceedings in another Court of which I was unaware, because these orders were only made on the 30th June. What the Court should do therefore, bearing in mind the seriousness or otherwise of the matters, and the fact that there is no prior history of contravention, is to deal with the matter under what is known as stage 2 of the parenting compliance regime.
There are three things that the Court can do and the Court can do all or any of these things:
i)Direct a respondent to attend a post separation-parenting program.
ii)Make a further parenting order that compensates for contact foregone as a result of the current contravention.
iii)Adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order.
Now this matter is being heard in the shadow of an application to indeed vary orders, which is returnable on the 24th November 2003. An order has already been made under section 68L of the Family Law Act that the children should be said to be represented and there is a child representative currently involved in the case.
The parties are due to attend confidential counselling pursuant to section 62F(2) of the Family Law Act on Tuesday 18th November. It would seem to me therefore to be inappropriate at this stage to make an order under section 70NG(1)(a) requiring the party to attend a post separation parenting program or under section 70NG(1)(c) to adjourn the proceedings to allow a party to apply to vary the order as such things are already under way.
I am of the view, however, that as it does appear that a period of contact has been lost that I should make an order under section 70NG (1)(b) for compensatory contact and I propose to order that a period of two days be added to forthcoming school holiday contact. That time can be arranged between the parties so that it will either be at the beginning of the school holiday contact or at the end. That is up to the parties to arrange and certainly over a period of counselling that can take place.
There are a number of other issues that have caused some concern during the hearing today. The mother and the father each complain of being intimidated at contact changeover, or of feeling intimidated. That is a matter that if it cannot be discussed in counselling, needs to be raised with the child representative.
I am not of the view that I should make an order that contact changeover should take place at a police station and indeed the Court would normally want to be persuaded that it was in the best interests of the children to do so before making such an order.
I am concerned however that whilst the parties level of acrimony and mistrust is high, that there is a need to keep unpleasant comments to a minimum at contact changeover and it is somewhat regrettable that there have been acrimonious comments made during the course of these proceedings, and I have had occasion to comment unfavourably on that. That is behaviour that must stop.
What has happened, however, is that arrangements have been made between the parties that when the children go on contact with the other parent, that they spend the time together. There is a significant difference in the age of the children, some five years, nevertheless, the child, B, on the evidence before me, feels happier and more secure when her elder sister is present at contact. It seems to me to be in the children's best interests that whether they are with their mother or with their father, that it would be better for them to be together. They have different interests because of their different ages but the Courts are normally of the view that siblings should spend time together where they can.
I am also concerned about allegations - and they remain at that - of excessive physical chastisement. This is a matter that may need to be investigated further in the forthcoming proceedings, but I am of the view that what should be done on an interim basis, until the matter can be fully litigated, for the protection of the children, is to make an order that there should be no physical chastisement. That is a matter about which I can hear evidence later in the proceedings but at this stage, for the well being of the children and for the concern of the parents, that physical chastisement of either child should not take place. L, in any event, is too old for physical chastisement to take place and B would be getting to the stage where other forms of punishment would be more appropriate in any event.
The final matter that is a matter of concern is telephone contact. L is certainly of an age where she can make her own arrangements about ringing her mother. B, at the age of eight, is at a stage where she can use a telephone to ring her father direct without the need for her mother to be involved. The mother has indicated in evidence and in submissions today that she is quite happy for B just to deal directly with the father. The father indicated that he would be delighted if the phone rang and he found that it was B at the other end and he would be more than happy to talk to her.
I am of the view that those orders need to be clarified so that that arrangement, which should place a lot less pressure on B and remove difficulties that have the potential to arise between the parents, could take place.
I would comment that these orders, in particular, are interim orders and can be reviewed when the matter comes back before the Court. Whilst the parties have separated, they have, as I have said before, exercised their right to form new relationships. Now, it is not up to the party in a relationship to exercise any power of veto on the other party's new choice. It is often very difficult for the person who has come into a relationship with someone who has recently got out of a relationship. There needs to be a degree of restraint exercised on both sides. If the degree of acrimony and mistrust between the father and mother is reduced, the life of their two children should improve, and if the children are happier it would be hoped that the parents would be happier and more settled.
It is for these reasons that I propose to make the Orders set out at the commencement of this decision.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 19 November 2003
0
0
0