PKG and PMD
[2003] FMCAfam 516
•20 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PKG & PMD | [2003] FMCAfam 516 |
| FAMILY LAW – Children – contact – interim orders – variation of consent orders – child aged 21 months – supervised contact – whether supervised contact should continue. |
Family Law Act 1975 (Cth), ss.19N, 60B, 65E, 69N
Federal Magistrates Court Rules 2001, Rule 2.04, Division 15.4
J & W [2002] FMCAfam 44
G & D [2002] FMCAfam 42
M v M (2000) FLC 93-006
| Applicant: | K G P |
| Respondent: | M D P |
| File No: | BRM 2631 of 2003 |
| Delivered on: | 20 November 2003 |
| Delivered at: | Brisbane |
| Hearing date: | 17 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Jones Mitchell |
| The Respondent: | Appeared on her own behalf |
ORDERS
The Applicant is to file and serve an affidavit stating the facts upon which he seeks to rely in respect of property proceedings within seven (7) days.
The Respondent is to file and serve a financial statement and an affidavit stating the facts upon which she seeks to rely by 4.00 pm on Friday 12 December 2003.
The parties are to comply with Rule 24.04 by serving on each other by 4.00 pm on 19 December 2003:
(a)Copies of their 3 most recent taxation returns;
(b)Copies of their 3 most recent assessments;
(c)Copies of the most recent member’s account statement and the most recent financial statement of any superannuation fund of which they are a member;
(d)If either party has an Australian Business Number, copies of the last 4 business activity statements lodged;
(e)If either party has an interest in a partnership, trust or company other than a public company, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
Pursuant to section 26 of the Federal Magistrates Act 1999, the parties are directed to attend a conciliation conference before a Registrar of the Court at 11.00 am on 9 January 2004.
The parties are to exchange copies of all valuations or market assessments in respect of any item of property whose value is in issue by 4.00 pm on 19 December 2003.
UNTIL FURTHER ORDER:
Order 2 made on 21 March 2003 is suspended.
The father is to have contact with the child T J P born on 22 February 2002:
(a)each alternate weekend, from 9.00 am to 4.00 pm on the Saturday and from 9.00 am to 4.00 pm on the Sunday; and
(b)from 9.00 am to 4.00 pm on Boxing Day 26 December 2003.
For the purpose of exercising contact the father is to collect the child from the mother’s residence at the commencement of each contact period and is to return the child to the mother’s residence at the end of each contact period.
The father is to arrange for his mother G P to accompany him on all contact occasions until 31 December 2003.
Contact is to take place at K Drive, R in the State of Queensland or such other place as the parties agree.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 2631 of 2003
| K G P |
Applicant
And
| M D P |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for variation of interim contact orders by the father of a little boy called T J P, who was born on 22nd February 2002. The orders that the father seeks are that some interim contact orders made by consent in the Southport Magistrates Court should be varied to reflect the present residential situation of the parties and, most importantly, to remove the requirement that the father’s contact with the child should be supervised.
The mother opposes the application. It is her view that the father’s contact with the child should remain supervised, at least until the matter can be determined on a final basis. Her view is that there is a risk of harm to the child if the father is to have unsupervised contact.
Background
The parties were married on 20th September 1997 and separated finally on 29th May 2002. They had previously separated between 29th October 2001 and 7th January 2002. The father is a solicitor by profession and the mother is now a university student.
There is one child of the marriage, T J P, who was born on 22nd February 2002. He resides with the mother, and has done so since the parties separated. There is no issue between the parties about with whom the child is going to live.
The mother commenced proceedings in the Southport Magistrates Court on 5th March 2003, when she filed an application seeking a number of orders that the child should reside with the mother and the father should have supervised contact. The contact was to be supervised by the child’s maternal grandmother, L M.
The mother’s application was accompanied by a pro forma affidavit by the mother. Annexed to that document was a medical report about an injury to the father’s neck and a diary kept by the father recording his thoughts and emotions Sunday 2nd and Sunday 9th June 2002, emailed by the father to the mother.
The mother also filed an affidavit by her mother, L J M, in which she set out dates and times when she had supervised the father’s contact with T. Mrs M said in that affidavit that she was willing to keep supervising the father’s contact with the child.
The mother’s application was returnable before the Southport Magistrates Court on 21st March 2003. Both parties attended court on that date. They were both legally represented. The Court made orders by consent, following on from some Terms of Settlement, which were signed by both parties in the presence of their lawyers.
The Orders made contained defined contact orders, and provided that the contact was to be supervised by the child’s maternal grandmother, Mrs M. The Court also ordered, again by consent, that the proceedings were to be transferred to the Family Court at Brisbane, pursuant to the provisions of s.69N of the Family Law Act. Section 69N deals with the transfer of parenting proceedings from a court of summary jurisdiction.
Interestingly, the consent orders were intended to be reviewed by the parties after a short time. The Terms contained a notation to this effect:
“They (the parties) each acknowledge, one to the other, that these Terms should be reviewed in approximately 45 days time. They each undertake, one to the other, that they will so review the Orders in good faith and with the interests and welfare of their child, T, as being of paramount importance.”
The Southport Magistrates Court transferred the proceedings to the Family Court, which made arrangements for the matter to be listed in the Federal Magistrates Court. The court file contains no notification of any order having been made by the Family Court. It appears that the proceedings were treated as if they were then transferred to the Federal Magistrates Court. The parties were ordered to attend counselling, which they did on 10th June 2003.There was some correspondence between the parties.
The father consulted a psychiatrist, Dr J Z. The father submitted a report from Dr Z dated 22nd July 2003. In that report, Dr Z expressed the opinion that there was no history of diagnosis or treatment of any psychiatric disorder and he was unable to detect any evidence of any such disorder. He also expressed the opinion that the father was capable of looking after his infant son without supervision.
The mother relocated the child’s residence from R, in the State of Queensland, to D C, in N New South Wales.
On 26th August 2003, the mother’s solicitors filed two documents, a Notice of Discontinuance of the proceedings and a Notice to Court that Lawyer has ceased to Represent Party.
The father then commenced proceedings of his own. He filed an Application for Divorce (confusingly headed “Family Court of Australia”), an Application for contact orders and specific orders, a pro-forma affidavit and a financial statement. These documents were filed on 18th September 2003. The Application for divorce was returnable on 2nd March 2004, and the other application was returnable on 17th November 2003. The parties again attended counselling, but no resolution was reached.
The mother sought an adjournment of the proceedings, on the ground that she was not legally represented, explaining that she had been attempting to resolve a dispute between herself and her former solicitors, and was trying to persuade them to accept further instructions, but they had declined to do so. She was going to instruct other solicitors in the Lismore area, but had not made any arrangements. She would also like the proceedings heard by the Federal Magistrates Court at Lismore, as that is nearer to her current home.
Issues
The father seeks a variation to the Orders that were made by consent on 21st March 2003, to reflect the fact that the mother has now relocated to Northern New South Wales and to remove the requirement that the contact should be supervised.
The mother opposes this application. She says that the contact arrangements should remain in place, although they are not being conducted in accordance with the current orders, and that supervision should continue. It is her view that supervision is necessary because:
a)the father is depressed and has expressed suicidal tendencies;
b)the father is inexperienced at looking after T; and
c)T does not know his father very well, and would be distressed if left alone in his father’s company.
Evidence
The proceedings were conducted as an interim hearing, with submissions by or on behalf of both parties. Mr Jones, for the father, tendered a copy of a letter from his firm to the mother’s then solicitors and a report dated 22nd July 2003 from Dr J Z. Dr Z is a psychiatrist who examined the father.
Mr Jones also tendered copies of some notes by one M H, a counsellor who had seen the father on a number of occasions in November 2001, at a time when the parties were separated. I was initially concerned about the admissibility of these notes, in the light of the restrictions of s. 19N of the Act, noting that the mother referred to Ms H as a marriage counsellor in her affidavit. Against this, I was informed that the parties did not attend together with Ms H for the purpose of marriage counselling, and I note that the mother’s solicitors applied for the issue of a subpoena to Ms H for the production of her notes. That subpoena was returnable on 18th August 2003, but it appears not to have been served. The notes were of little assistance, in any event, except to show that the father was undergoing a period of emotional turmoil.
The report from Dr Z, the psychiatrist, was relatively brief. The covering letter for the father’s solicitor contains an invitation to the mother’s solicitors to contact Dr Z for clarification of any issues, as the father wished to commence overnight contact with T. The covering letter also refers to the mother’s “assertion that T cannot have overnight contact with his father because Mr P suffers from depression.”
Dr Z’ report refers to the father’s view that supervision of contact is unnecessary. The relevant parts of Dr Z’ report are:
“Mental state examination reveals a man of professional appearance and demeanour with normal range of affect. There was no evidence of any symptomatology associated with depressed mood…
Sensorium was clear and cognition intact. Intellect was estimated as above average range. There was no evidence of any abnormality in perception, thinking or experience…
There is no history of diagnosis or treatment of any psychiatric disorder in the past and I am unable to detect any evidence of such.
He is considered capable of looking after his infant son without supervision.”
The mother takes issue with the report from Dr Z. She believes that the father did not disclose his psychiatric history and did not describe his symptoms to the psychiatrist. She believes that the father is depressed and suicidal, and cannot be allowed unsupervised contact with the child.
The mother has not filed a Response or any affidavit at this stage. She did not tender any evidence.
The parties’ submissions
The father’s solicitor, Mr Jones, submitted that there was no demonstrated need for the father’s contact to be supervised. There was no evidence that the father posed any threat to the child’s welfare. He submitted that the report from Dr Z showed no evidence that the father’s mental state was such as to warrant any further supervision of contact. The father is not seeking that there should be overnight contact at this stage, and this was something that could be left until the final hearing.
Mr Jones referred me to two decisions of Ryan FM concerning supervised contact. J & W [2002] FMCAfam 42, was a case where the Court made an order for supervised contact because of an unacceptable risk of harm to the child posed by the father’s behaviour. There was an Apprehended Violence Order in force, and the Court found that the father was an alcoholic and was addicted to prohibited drugs. Mr Jones submitted that the case before me was far removed from the circumstances in J & W (supra).
Mr Jones also referred me to G & D [2002] FMCAfam 42, a decision where Ryan FM ordered that supervised contact was inappropriate. In that case, the Court found that there was no evidence of any risk to the child, and that supervised contact would hinder the child’s relationship with her father.
The mother submitted that the circumstances were that the father was actually exercising more contact than he was entitled to under the orders, as he was regularly having overnight contact with the child. The mother said that the father was being allowed to stay at the maternal grandmother’s home over a weekend and assist her with bathing the child and putting him to bed, among other things.
The mother is concerned about the father’s mental state, and she believes that he is depressed. She is of the view that the father is at some risk of suicide, and that this poses a risk to the child. She refers to statements that the father allegedly made to other people about an urge to take his own life by driving into the path of an oncoming truck. The mother says that she will not let the father drive the child or her own mother any more than a short distance because of this fear.
The mother also said that the father had other difficulties of a psychological nature, including some ambivalence about his own sexuality. The mother conceded, however, that such an ambivalence would not of itself place the child at risk. The mother rejected the idea of the father’s mother, T’ paternal grandmother, acting in any form of supervisory role, because the child knew her even less than he knew the father.
The mother said that she had tried to end the marriage on more than one occasion. When asked whether she had any objection to the father’s application for divorce, returnable before this Court on
2nd March 2004, being brought forward, she said that she had no objection to that course being taken. She regarded the marriage as having ended. I am satisfied that I should pronounce a decree nisi dissolving the parties’ marriage.
Conclusions
It is difficult to see a need for the father’s contact with T to be supervised. It is clear from the decisions of Ryan FM in J & W (supra) and G & D (supra) that contact should be supervised if there is a risk of harm to the child or to the parent with whom the child normally lives. This principle also emerges from the decision of Mullane J of the Family Court of Australia in M v M (2000) FLC 93-006.
I am not satisfied that there is evidence to show that there is an unacceptable risk of harm to the child if he is in the presence of his father without supervision. The mother’s assertions of depression and unstable mental state are not borne out by Dr Z’ report. The reasons given in the affidavit filed by the mother in the Southport Magistrates Court do not appear to me to be sufficient. She refers to the father’s inexperience (at paragraph 20), mood swings (paragraph 25) and depression (paragraph 26).
In paragraph 26 of the affidavit, the mother gives hearsay evidence of a comment made by her sister on 12th November 2001 that the father “stated that he felt like he could easily have driven his car into a semitrailer on the trip down to visit her”. It is surprising that the mother has not provided any direct affidavit evidence from her sister about this statement, especially as the Application for Divorce shows that the mother and the sister share the same residence at D C.
The mother also refers in paragraph 26 to hearsay evidence of a lengthy conversation with one J M on 13th February 2003.
Ms M is described as a junior solicitor under the father’s supervision who had commenced a relationship with the father just prior to Christmas 2002. The mother says:
“J M advised me that the father had stated to her when he heard a certain song he felt like he could drive his car into a truck.”
I infer from this statement that Ms M and the father are no longer in a relationship.
If Ms M’s statements are to be relied on, they should have been on affidavit, rather than quoted in a hearsay fashion in the mother’s affidavit.
The mother also relies on the father’s inexperience in dealing with T as a baby in support of her claim for continuation of supervision of contact. The fact is that the father has been exercising contact under the supervision of the child’s maternal grandmother since the orders were made on 21st March this year. The child is now about 21 months old. He should know his father by now, and his father should have learnt from the maternal grandmother how to look after T and meet his needs.
I am not satisfied that the mother’s offhand dismissal of the father’s mother as a person who can assist the father is of any great weight. The maternal grandmother may not know the child very well, but she is the child’s grandmother, and she would hardly allow the child to come to harm, any more than she would allow her own son to come to harm. As a mother herself, she would also be able to assist the father in the care of a young child.
The final matter that leads me to the view that supervision of contact should not continue arises from two documents signed by the mother. The mother says at paragraph 26 of her affidavit, on page 6:
“Until I receive some form of evaluation from a qualified psychiatrist with regards to his mental and emotional state, I am reluctant to entrust T to his care without supervision.”
It appears to me that the report from Dr Z meets this requirement. Unfortunately, the mother has rejected this report out of hand.
It was the intention of the parties that the arrangements that they made on 21st March 2003 at the Southport Magistrates Court would be reviewed approximately 45 days later, that is, about six or seven weeks later. I have quoted the notation in full at paragraph 10. This meant that the arrangements should have been reviewed in the month of May, but that does not appear to have happened. The arrangements continued, and the mother then discontinued the proceedings in August.
To my mind, the mother appears to have gone back on what she said in her affidavit of 4th March 2003, that she wanted to see a psychiatrist’s report. The report has been provided, and she has rejected it. The mother also appears to have gone back on the terms of the undertaking contained in the notation to the consent orders of 21st March 2003. The arrangements have not been reviewed.
There is no new evidence that would show that the father has acted in a way that would constitute an unacceptable risk to the child since the consent orders were made on 21st March 2003. The only fresh evidence is the report from Dr Z, which supports the father’s case.
It is difficult to see why the father agreed to supervised contact in the first place. The evidence was not strong. Then again, the father’s actions in sending by email to the mother the “stream of consciousness” diary from 2nd to 9th June 2002 does not appear, with hindsight, to be a particularly astute action, either. The mother annexed it to her affidavit to use it as evidence against him.
I am satisfied that the Orders made by consent on 21st March 2003 should be reviewed. I am not satisfied that there is an unacceptable risk of harm to the child if he is left in his father’s care without supervision. I believe that, as Ryan FM felt in G & D (supra), continued supervision of contact by the maternal grandmother would be likely to hinder the father’s relationship with his son.
Having said that, I consider that the father’s mother may be of assistance to the father in the early stages of the new interim contact arrangements. I do not believe that she should supervise the contact on a long-term basis, as there does not appear to me to be a need for her to do so.
The matter will need to proceed to a final hearing, which will obviously not take place until the New Year. I will leave any arrangements for listing the matter for trial until a later date. It may be the matter can be heard on circuit in Lismore, as the mother wishes, or it may prove to be more convenient to hear the matter in Brisbane. In any event, the mother should arrange to secure legal representation for herself.
There will be a need to make arrangements for the father to have contact at Christmastime, and I propose to order that this contact should take place on Boxing Day.
On a minor issue, I note that the father’s affidavit filed in these proceedings on 18th September 2003 is incorrectly headed “Family Court of Australia”. It is a pro-forma affidavit of a type that was apparently designed to be of assistance to litigants in person. It is not necessary for this form of affidavit to be used by legal practitioners, and there is no requirement in the Rules that it should be used in proceedings in the Federal Magistrates Court.
The rules relating to affidavits are set out in Division 15.4 of the Federal Magistrates Court Rules 2001. Practitioners should also ensure that all affidavits comply with Rule 2.04, which provides that documents must be headed FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE (or whatever is the appropriate Registry).
These are the reasons for the orders that I make in these proceedings.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 19 November 2003
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