Pope and Pope
[2010] FamCA 296
•31 March 2010
FAMILY COURT OF AUSTRALIA
| POPE & POPE | [2010] FamCA 296 |
| FAMILY LAW – INJUNCTION – s68B |
| Family Law Act1975 (Cth) |
| APPLICANT: | Mr Pope |
| RESPONDENT: | Ms Pope |
| FILE NUMBER: | SYC | 5303 | of | 2008 |
| DATE DELIVERED: | 31 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan JR |
| HEARING DATE: | 31 March 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Swaab Attorneys |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring Solicitors |
Orders
Insofar as the Application in a Case of the father filed 25 February 2010 seeks Order 4, the application is dismissed.
That the father pay to the solicitor for the mother one half of the costs of the mother related to the application dismissed today assessed in the sum of $500.00. That payment is to be made within 2 months from today’s date.
IT IS NOTED that publication of this judgment under the pseudonym Pope & Pope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5303 of 2008
| MR POPE |
Applicant
And
| MS POPE |
Respondent
REASONS FOR JUDGMENT
There is only one issue before the court. The father seeks that the mother be restrained, presumably under section 68B of the Family Law Act. The injunction is sought in an application filed 25 February 2010. That application also deals with subpoenas and some other things that apparently have been addressed elsewhere.
The order sought is that the mother immediately remove the sticker on her motor vehicle, registered number …. The sticker bears the words, “Men are idiots. I divorced their king!” The order sought goes on to require that the mother be restrained from putting that sticker on any motor vehicle which she uses to drive the child of the marriage, a daughter, born in January 1997.
Pursuant to Section 68B a Court may make such an order or grant such an injunction as it considers appropriate for the welfare of the child. Section 68B lives in Part VII of the Family Law Act and it is a provision to which the best interests of the child apply. There is a nice argument as to whether the best interests of the child are the paramount consideration but there is no doubt that they are relevant[1]. An injunction can be made under the section. It can be made unconditionally or on such terms as the court considers appropriate.
[1] Flanagan & Handcock (2001) FLC 93-074; Koldsjor & Addington [2009] FamCAFC 21
Not surprisingly, the particular type of injunction sought here is not mentioned in the section. The section refers to the personal protection of children and other things by way of example. “Welfare” is not a term defined in the Act. One determines what is in the best interests of a child is by reference to section 60CC. It says that there are primary considerations and additional considerations. The primary considerations are the benefit of a child having a meaningful relationship with both parents; and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Just stopping there, I don’t think it could be said that this issue marches far into those major considerations. Then there are additional considerations which are any view expressed by the child and factors such as the child’s maturity and level of understanding the court thinks are relevant to the weight given to those views; the nature of the relationship of the child with each of the parents and other persons; the willingness and ability of the parents to facilitate a close relationship between the child and the other parent; the likely effect of any changes in the child’s circumstances, including separation from a parent or another person; the practical difficulty and expense of a child spending time with or communicating with a parent and whether those difficulties and expense will affect the child’s right to maintain personal relations and so on; the capacity for each of the parents to provide for the needs of a child including emotional and intellectual needs; the maturity, sex, lifestyle background of the child; whether the child identifies as an Aboriginal or a Torres Strait Islander child; the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents; any family violence; whether there is a family violence order; whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child; and any other fact or circumstance the court thinks is relevant.
As to the competing arguments in the case: for the father it is said, it is obvious that it is not in the best interests of a child to have what is in effect, a derogatory remark about the father, plastered on a motor vehicle, in which the child regularly travels. For the mother the argument is - yes, I might be a complete idiot for having such a bumper sticker, but a court should not become involved in making an order to interfere with something as detailed, something as specific as this.
The evidence in support of the application is contained in three paragraphs of an affidavit. The evidence is that the child is 13 years of age; she travels in the car; there is the bumper sticker on the car bearing the offending words; through his solicitor the father requested that the bumper sticker be removed from the car. That is the evidence.
There is no evidence about any views expressed by the child or about factors such as the child’s maturity and level of understanding the court thinks are relevant to the weight given to those views. I am told by the father’s solicitor that he has deliberately not raised the issue with the child.
There is no evidence about the nature of the parties’ relationships with the child. Nothing about their willingness and ability to facilitate a close relationship with the other parent. You could perhaps draw an inference about the mother arising from her conduct to the effect that her willingness to encourage a close and continuing relationship between the father and the child is at least, circumscribed.
There is no evidence about the likely impact of the removal of the sticker. There is not likely to be any practical difficulty and expense, unless the bumper sticker is welded to the bumper bar.
As to the capacity of the parents, there is some evidence that the mother can act in a childish way.
As to the maturity, sex, lifestyle and so on of the child – we know that she is a 13 year old girl.
As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents – on this one example, the mother doesn’t come up terribly well. I don’t know anything else about her. There is no evidence of family violence.
As to considering an order that would be least likely to lead to institution of further proceedings - that is a factor that argues strongly against the father’s application.
There is something, with respect, in what Mr Holmes says on behalf of the mother. If the court is obliged to get down to the minutiae of bumper stickers on cars, then that is not a practicable way to manage a child’s life. If a parent’s involvement with a child needs to be spelled out in a series of statements of the bleeding obvious, then perhaps responsibility for something as complicated as managing the life of a 13 year old child should be given to somebody else.
This all happens in the context of separation. It is not unusual for parents to behave badly in the shadow of separation. In dealing with their own grief and anger over a lost relationship parents sometimes lay their parenting burden down. In 99 cases out of 100, parents pick up those responsibilities after they’ve dealt with those issues and whether with some counselling help or just because they love their child more than they dislike the other person, they work out a new way of cooperative parenting.
As I said this is not an application brought to a Superior Court of Record as a bare application. There were some other issues. Presumably, there is something more complicated in the parenting dispute than this issue.
However, I am not to know, for example, whether the parents comported themselves in the language of this bumper sticker for the entire 13 years of the child’s life. It might be that, on occasions or on a daily basis, they’ve referred to each other as idiots.
We are taught at Law School, that much of family law is an impossibility. The court is often asked to closely regulate, the private behaviour of individuals, behaviour that largely occurs in private. The Court can be asked to regulate behaviour between, usually two people who don’t get on, and their interaction with their children. That requirement can involve multiple interactions each week, for years. The Court has virtually no capacity to monitor or supervise or regulate those behaviours. That is why the legislature has built an edifice of family relationship centres, solicitors, hopefully wise solicitors giving counsel to their clients, and court counsellors who can give feedback to parents about the impact of their behaviour on children. All of that is available before a court is required to impose an outcome on parents.
The reason for that is that the best outcome by far is an outcome whereby the parties reach some accommodation. If a court has to make orders, particularly orders at a level of detail such as is sought here, impacting on the lives of the parents and their dealings with a child, then the game’s been lost. That sort of detail can be necessary if a parent is under a disability, such as a mental illness. There is no evidence of any disability here although if the mother was in Court she would have difficulty explaining to me how that bumper sticker was in the best interests of this child. I doubt that she would suggest it was a good thing to do.
I can understand how this started. It is understandable for the father to be upset about the bumper sticker. It was right and sensible for letters to go between solicitors. It is true that Courts do make orders for non-denigration. However, I have rarely seen a stand-alone order in relation to non-denigration. Non denigration orders are usually made by consent. I have not seen an order made based on the evidence of one offensive communication that a child of 13 might be exposed to. I could imagine from the father’s point of view, that this is, effectively, a billboard that the child could see everyday. However, for all I know this may be the way the parents have always talked to each other. Their daughter might say that her parents are idiots. The child might have a greater maturity about it than her parents, I don’t know.
Coming back to the task, there is a real issue about whether a court intervenes in relation to particular issues. As is said on behalf of the mother, if the court intervenes in this issue, what next? I don’t think there’s a good analogy for proceedings about what’s on TV, but would evidence of an individual saying “He’s an idiot,” in the presence or hearing of the child, be something that could warrant proceedings. What about gestures and other non-verbal communication, should they prompt proceedings? Where does it end? It would have been better if the injunction had not been included in a formal application, better that the court’s time hadn’t been taken up today with this issue. Unfortunately the application itself then plays into something that has nothing to do with the welfare of a child, a struggle between the parents.
This issue does not seem to me to be a proper matter for a court. The order sought would not be a proper exercise of judicial power, not from the child’s point of view nor for that matter, from that of the tax payer.
There is an application for costs arising out of these proceedings. Generally, parties bear their own costs. The court has power to make an order and, in doing so, is required to consider matters set out in the section. They are: the financial circumstances of the parties and if either is in receipt of Legal Aid and, if so, the terms of the grant; whether either party has been wholly unsuccessful; whether the application was caused by a failure to comply with court orders; any offers of settlement under section 117C, or otherwise, in writing; the conduct of the parties, attending court, filing documents, and so on; whether the proceedings were prompted by reason of a breach of a court order; and other matters relevant to costs.
I know nothing of the financial circumstances of the parties. I assume, I hope and pray that neither has Legal Aid. There’s nothing about the conduct of the parties that comes to attention. The father’s been wholly unsuccessful. As to the catchall provision, the mother acted in a childish way, presumably in order to attract a response from the father. The father has overreacted.
We are here because of what the mother did. In those circumstances, she should not have all of her costs paid. There is an estimate of $1,000 from the mother’s solicitor as to the costs of that part of the proceedings that related to this issue. I will allow half that sum.
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan
Associate:
Date: 15 April 2010
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