MJM & MEP
[2005] FMCAfam 536
•25 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MJM & MEP | [2005] FMCAfam 536 |
| FAMILY LAW – Children – contact – whether contact needs to be supervised by father at all times – offensive language by one parent to another in the presence of children not in children’s best interests. |
| Family Law Act 1975 (Cth), s.68F |
| Applicant: | J M M |
| Respondent: | E P M |
| File Number: | BRM 15114 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 August 2005 |
| Date of Last Submission: | 25 August 2005 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 25 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Susan Green Solicitor |
| Solicitors for the Respondent: Children’s Representative: | Ms McKinnon Mr Hammond |
ORDERS
Until further order:
The father is to have contact with B M born
24 March 1999 and Z M born 29 January 2001 from
5 pm on 9 September 2005 until 9 am on 12 September 2005 and from 5 pm on 23 September 2005 until 9 am on 26 September 2005.
That contact changeovers occur at Interrelate Children's Contact Centre at Coffs Harbour.
The father shall ensure that he personally supervise B and Z at all times that they are in his care.
That the father shall not allow B and Z any contact with the father's partner's nephews N and N and shall not allow B and Z to be at the same premises as N and N except on the occasion of the father's wedding ceremony on 24 September 2005.
That the mother and father shall not allow anyone to discuss with B or Z issues raised in these proceedings without the consent of the children's representative.
Neither party is to denigrate or criticise the other or use offensive or insulting language to the other in the presence or hearing of either of the children.
The matter will be adjourned to the sittings of the Federal Magistrates Court commencing on Tuesday, 4 October 2005 at 10 am.
The father is to file and serve all documentation upon which he seeks to rely by 4 pm on 23 September.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
BRM 15114 of 2004
| J M M |
Applicant
And
| E P M |
Respondent
REASONS FOR JUDGMENT
This is a relatively narrow issue and I understand that the mother is concerned for the safety of the children. The mother also raises a concern about the father using offensive language to her in the presence of the children and reports a physical contact in breach of an undertaking at the Local Court, which may not sound much but is highly undesirable. It is clear that there is a great deal of acrimony between the parents and where there is acrimony there will seldom be trust.
The father is no doubt frustrated by what he sees as the mother's intransigence, but it will not assist the situation at all if the father allows his feelings of frustration or anger to get the better of him.
It is easy for people to be polite to each other when things are going well. It is less easy when there is real hostility and acrimony between people with emotional issues between them, but it is even more important that that should happen not just for the general well-being of relationships, but particularly for the well-being of the children.
It is never in the best interests of children to see their parents arguing, no matter how justified one party may think that argument is to be.
If the children are separated in circumstances where there is a lesser feeling of security it is most important that the parents if they cannot find anything nice to say to each other should say nothing.
I have read the affidavit of P D and I have read the material in the DCS file. I note in paragraph 5 of Ms D's affidavit she says that she has made a notification to the Department in relation to these matters and says that she is distressed that nothing is being done by the Department to ensure the ongoing safety of the children.
In my view the Department is well aware of the fact that the Court has a role in these proceedings, even though the Department seems to be of the belief that it is at the Family Court rather than the Federal Magistrates Court of Australia. The Court will certainly take action to ensure the ongoing safety of the children. The children do have their own representative who is a senior family law practitioner and it is my experience of children's representatives as a whole that they are usually quite positive in making recommendations to Courts that will assist the children's welfare.
Ms D in her affidavit says in paragraph 11 – I quote
“I consider the situation to be extremely serious and support J's decision not to provide unsupervised contact until such time as there is an acknowledgement by the father of the very real problem that exists and safety measures are put in place to ensure that N and possibly N do not come in contact with B and Z until such time as N at least has been treated and counselled.”
Whether or not the situation as described can be regarded as extremely serious is perhaps a matter of some debate. I do not mean to belittle the matter, but in my view a reference to unsupervised contact should be read in the terms of supervision as referred to in paragraph 9 of the affidavit where Ms D said that she made it very clear to the father that the children needed to be supervised 100 per cent of the time. There is nothing there that indicates that the children need to be supervised to protect them from untoward actions by the father, which is the usual or common meaning of supervised contact in the circumstances.
I am of the view that contact should proceed with the father taking a vigilant role in supervising the children. In my view Order 3 proposed by the children's representative places that responsibility fairly and squarely on the father's shoulders. Order 4 as proposed by the children's representative makes it very clear where the concerns should lie and I accept the fact that the father's wedding ceremony is a situation where the children concerned would be expected to come into contact with each other.
Ms Green for the mother has suggested that a chaperon can be provided for the children on that occasion. In my view that is not necessary as it would be fanciful to assume that untoward sexual behaviour would take place at the father's wedding ceremony, and I am of the belief that now this incident has come to light that the father in any event will be adopting a hyper-vigilant role in order to ensure ongoing contact with the children.
I also note that the children's representative recommends an order that neither parent should allow anyone to discuss the issues in these proceedings with the children without the children's representative's consent. That is a strong recommendation and in my view it is an appropriate one and I propose to make this order.
I also propose to make an order that will restrain the parents from using critical or offensive or insulting language to each other in the presence of the children. I have given my reasons as to why I believe that such behaviour, if it occurs, is counter-productive to the children's best interests and if people are not in the habit of using offensive or insulting language to other people then it imposes no restriction on them at all. I am quite happy myself to submit to any requirement that I should not use offensive or insulting language to anyone that I might happen to be married to. I would not find that a hard burden to carry.
I note the minutes of order proposed by the children's representative. To my mind they are appropriate and I intend to adopt them.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 7 October 2005
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