PS and Pt
[2003] FMCAfam 356
•5 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PS & PT | [2003] FMCAfam 356 |
| FAMILY LAW – CHILDREN – Best interests – allegations of physical abuse by mother – wishes of children – separate representation of children – breach of existing Court orders – return children to mother. COSTS – Application for costs. Family Law Act1975, ss.65E, 68L, 117(2A) Cilento (1980) 6 Fam LR 35; FLC 80-847 |
| Applicant: | SP |
| Respondent: | TP |
| File No: | PAM 931 of 2000 |
| Delivered on: | 5 August 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 5 August 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Thistleton |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr Levy |
| Solicitors for the Respondent: | Taylor & Scott Solicitors |
ORDERS
UNTIL FURTHER ORDER:
The Respondent father is to return the children BTP born 22 April 1992 and SCP born 19th January 1995 to the care of the Applicant mother by 6.30pm today.
Both parties are restrained from using any form of physical chastisement on either of the said children.
Both parties are restrained from taking either of the said children to any medical practitioner, psychologist or other counsellor for any purpose connected with these proceedings without leave of the Court.
Both parties are restrained from discussing the issues in these proceedings with either of the children other than to inform them of any Orders or Directions made by the Court.
Pursuant to section 62F(2) of the Family Law Act the parties are to attend upon a court counsellor or child and family counsellor at a time, date and place set by the Director of Court Counselling at the Parramatta Registry of this Court for the purpose of discussing the care, welfare and development of the said children.
Pursuant to section 68L of the Family Law Act, the said children are to be separately represented in these proceedings AND I REQUEST the Legal Aid Commission of New South Wales to arrange such representation.
The Respondent is to file and serve a response and an affidavit stating facts upon which he seeks to rely upon by 4.00pm Friday 8 August 2003.
The Application is adjourned to Friday 5 September 2003 at 9.30am for further mention.
The Respondent is to pay the Applicant’s costs in the sum of $1455. The Respondent has six (6) months in which to comply with this costs order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 931 of 2000
| SP |
Applicant
And
| TP |
Respondent
REASONS FOR JUDGMENT
Application
The proceedings before the Court today, concern the parties' two children, BTP born on 22 April 1992 and SCP born on 19 January 1995.
Orders were made by consent in this Court back on 13 November 2000, that the children should reside with the mother, and the father should have some extensive contact with them, which included contact with the children on a regular basis on a school day.
There were some further orders made by consent in January of this year which related to the children not being taken out of the country without permission, which are not of a great deal of relevance to the application before me today. What is relevant is the application by the mother of these children, for an order that the father return them to her care.
Proceedings were commenced on Friday 1 August. As a result of certain incidents which had commenced only a few days before. The mother says that she was first made aware of the issues on 31 July when the father rang her and said
"I've got something really hard to tell you. The kids don't want to live with you any more".
When she asked why, the father said:
"Because you're always shouting at them when you're angry".
There was some discussion, she says, about speaking to a solicitor and the children were not returned to their mother after contact.
The relevant orders would provide that each, set out in Order 4(b) made on 13 November, that each school day afternoon, the children would spend time with their father if he was available to supervise them personally, until 6.30 pm.
The children have remained with their father until now.
There was an application brought before the Court on Friday and adjourned today, so that some further material could be filed and the matter could be considered.
What the father says is that the chain of events started on the Wednesday, 30 July, where he says that the younger child, S disclosed that she had received bruises from being hit by the mother. The father took the child to the doctor who examined the bruises, and there is a note from the doctor referring to the child having some bruising, which on my reading of it, is somewhat inconclusive.
The father proposes in his affidavit that he was concerned. The doctor had said that as a result of the examination, that he was required to notify the Department of Community Services, and the father said, the doctor advised him also to contact the Department.
The father says that he telephoned his solicitor to receive some advice. The father says that he then contacted the Department of Community Services, spoke to a person at P, but was not able to make any progress at this stage, as the person to whom he spoke, was not aware of the matter. They may not have received the notification, but the father was not able to do anything with the Department at that stage. As he said, he decided to allow the children to be picked up by their mother that day. It was not until the following day that he decided, again, as he said, after further conversation with an officer of the Department of Community Services, that he would retain the children, and the situation has remained that way.
It is a matter of some concern, that whilst the father deposes to having spoken to the mother on the telephone, when the mother had indicated that she wished to speak to the children, that did not happen. The father says that the mother asked to speak to the children. He said, “They don't want to”. The mother later rang and said, “Can I talk to the kids please”. And he said, “They don't want to”, and went on to say, “because they're scared of you”.
The father deposes that he said to the child, B:
“Do you want to talk to your mother?”
and the child said:
“No”.
He then called S and said:
“S, do you want to talk to your –
presumably:
– mother?”
The word has been left out:
“It is up to you. She said, "I don't know”.
and the father said:
“It is up to you”.
There was then a very brief conversation.
I would have to indicate at this stage that the father had in fact retained the children for their own benefit, but it places a heavy burden on the children to require them to decide whether they are going to have contact with their mother over the telephone.
The father, in his affidavit, then refers to what has been described to me by counsel as "difficulties" of parenting between the parents over a period of about three years. He says that the child B has constantly, consistently and frequently, asked if he could live with the father, and he now says that the child S is expressing similar wishes.
He also refers to some concerns that he has over the child being prescribed Ritalin and his opposition to that.
The mother has prepared a further affidavit in which she canvasses some other issues including the application for the children to be placed on the airport watch list. As I mentioned earlier, consent orders were made on 6 January this year, in respect of that.
She attributes certain statements of the father as:
“I'm not going to be told when I see the kids any more. I'm going to have them all the time”.
She refers to incidents in December, January and February of this year, relating to concerns about a computer game that the father had and which she says the father, when she discovered the nature of the game, said:
“I didn't know it was on the computer and I have now had it taken off”.
Mr Levy refers the mother's comments about the father's relationship with his niece, CS. I am not of a view that that relationship is immediately relevant to the matter that is before me today. Although, if she is in a relationship with the father, then that is a matter that will be of some relevance when the matter is dealt with in a final hearing.
As was discussed today, the fact that Ms S is the father's niece, does not place her within one of the prohibited relationships under section 23B of the Marriage Act, and at this stage I am not of a view that there is any further need to comment on that, except that Mr Levy pointed to it as an example of what he saw as the mother's critical attitude towards his client.
The mother asks that the children should be returned. The father asks that there should be an order suspending the current residence and contact orders until these matter can be heard on a final basis.
He also seeks an order that the children should reside with him, but should have contact, on a regular basis, with the mother. He does, however, seek that the mother be restrained from physically chastising the children and from a procedural point of view, in view of his allegations of abuse by the mother of the children, seeks an order that the children should be separately legally represented pursuant to section 68L of the Family Law Act.
Mr Thistleton, of counsel for the mother, is critical of the father for what he described as doctor shopping and for attempting to upset, on a unilateral basis, a well settled arrangement both of which he described as being of themselves abusive to children.
Mr Levy denied that his client was doctor shopping and pointed out that his client had a sincerely held view that he was acting in the children's best interests in acting as he did.
Of course, in determining interim residence applications, it is well settled that the best interests of the child are of paramount consideration.
This is, if you like, the golden thread that runs through the authorities on this matter, including the decision of the Full Court of the Family Court of Australia in Cowling (1998) FLC 92-801.
“The best interests of the children are best met by ensuring stability in the children's lives, pending a full hearing of all the relevant issues.
Where, at the date of the hearing the children are well settled in their environment, that stability will usually be promoted by an order providing for a continuation of that arrangement, unless there are overriding indications relevant to the children's welfare to the contrary.
Such overriding indications would include convincing proof that the children's welfare would be really endangered by their remaining in that well settled environment”.
The Full Court has given the courts, at first instance, the guidance in determining whether a child is living in a well-settled environment and there are a number of matters there; the wishes, age, level of maturity of the children, current and proposed arrangements for the day-to-day care of the children, a period during which the children have lived in the environment, where any siblings reside, if that is relevant, the nature of the relationship between the children and parent and other significant adults, and the children's educational needs.
It appears to have been the consensus of counsel, before me, that the children were living in a well settled environment. The arrangements have been given the imprimatur of the Court by means of consent orders made on 13 November 200.
The children have been residing with the mother, as I said, and there have been regular and frequent contact, including most school days.
For me to make an order varying that arrangement on an interim basis until a final hearing, it is quite clear that I would have to be satisfied that there were overriding indications relevant to the children's welfare, that would lead me to such a decision, and those indications, as I said, would include convincing proof of the children's welfare would be really endangered by their remaining in that environment.
Of course, the father is not suggesting that the children should not have any contact with their mother on an interim basis. Indeed, he is suggesting that, on an interim basis, that the arrangements should more or less be reversed, with the exception that there should be an injunctive order made restraining the mother from any physical chastisement of the children.
There are two points to be made here. One of them is, that the level of evidence as to the injuries sustained by the child, S, and the degree of physical chastisement of the children, is not at this stage, particularly strong. It is an assertion which has been denied by the mother. I have not doubt that in these proceedings on a final basis, that this one of the issues that may well be the subject of a great deal of evidence, and the Court would need to be satisfied that that is the case.
There is certainly evidence from the father of the children expressing wishes, in B's case, for a period of years, and in S's case, for a period of months, of a wish to reside with the father rather than the mother.
These are not issues which, either separately or together, would satisfy the Court that the children's welfare would be endangered if they were to remain residing with their mother. If it is the father's view that the children could have unsupervised contact with their mother, with the protection of an injunctive order restraining her from physically chastising the children, it would seem to me to be the case that the children's welfare would still be protected if they were returned to reside with their mother, in accordance with the existing orders, with the addition of an injunctive order restraining physical chastisement of the children.
It is well known to courts exercising jurisdiction under the Family Law Act, that many proceedings commence by one party not returning the children from contact. Sometimes, there are strong reasons for that and that is a matter that the Full Court of the Family Court has clearly set out in decisions such as Cowling going right back to the decision in Cilento (1980) FLC 80-847, but in most cases where there is not that convincing proof of these overriding indications relevant to the children's welfare, it is in the children's best interests to remain in their well settled environment until all of the issues can be properly investigated by a court.
I propose, therefore, to make an order that will require the children to be returned to the care of their mother. This does not mean that I would dismiss out of hand the allegations of abuse to the children, nor do I propose to ignore what the father says are the expressed wishes of the children. The Court is mindful of the need to protect children and indeed, has been accused of erring on the side of caution.
There are many decisions including Harrison v Woollard (1995) 18 Fam LR 788, which has also been reported as H v W (1995) FLC 92-598, and R and R: Children’s wishes (2000) 25 Fam LR 712 and R v R (Children’s wishes) (2002) FLC 93-108, where the importance of consideration of children's wishes is made quite clear by the Full Court of the Family Court. Those decisions are binding on the Federal Magistrates Court. These wishes are not, however, in the form that they are, a sufficient reason, as I said, for the children not to return to the care of their mother in accordance with the orders.
I do propose, however, to take note of both of those issues and other matters, which, to my mind, come within the guidelines set out by the Full Court of the Family Court in the leading case of Re K (1994) FLC 92-461, and I propose to make an order that the children will be separately represented in these proceedings.
If there is to be a restraint on physical chastisement on either of the children, I am of the view that it should apply to both parties.
I am of a view that these proceedings, which are going to involve reopening the question of residence, will involve the children talking to a counsellor, or perhaps a Court expert, whether that person be a psychologist or a medical practitioner. I am concerned that the children should not be taken from one practitioner to another for non-medical reasons, or for reasons purely connected with these proceedings.
I propose to make an order placing some restriction on that without the leave of the Court.
The children will need to be informed as to what the Court has ordered today, and they will need to be informed of other things that are going on, but I do propose to make an order restraining the parties from entering into a discussion of the issues in these proceedings.
I note what each of the parties reports what the other party is said to have said about court proceedings, and this is a matter that I am of view, is not in the best interests of the children. The children should be kept on a need-to-know basis.
There has not been, at this stage, any counselling of the parties in respect of these proceedings. The Family Law Act normally requires, when parenting orders are to be made, that parties should see a family and child counsellor unless there is a good reason not to. I am not satisfied that there is a good reason not to, and indeed, I am of the belief that confidential counselling at an early stage in these proceedings, may assist these parties in resolving the difficulties between them, or at least in perhaps narrowing the issues.
It is for these reasons that I propose to make the orders set out at the beginning of this judgement.
There is a counselling form that the parties will need to complete, and I know both counsel are familiar with that documentation and can assist their clients.
It is usually the case that the Legal Aid Commission can organise a separate representative within a period of three weeks or so. What I would like to do is bring this matter back in about three to four weeks' time once a children's representative is available as that we can look at the ongoing progress of the matter. But I should make it quite clear that the children are to be returned today at the time set.
I have made an order that the children should be returned to the care of the mother today.
I have also indicated that it happens, quite frequently, that matters seem to start because one party has retained the children after contact.
I have not, of course, dismissed the father's allegations out of hand. Indeed, I have made orders which I strongly hope will assist in investigating the strength of those allegations. However, taking the allegations at their highest, they do not seem to me to have justified a precipitated action of the father taking the law into his own hands.
True, he notified the Department of Community Services. True, he sought advice from his solicitor. It may well have been, however, a more prudent course for the father, having returned the children on one occasion despite his misgivings, to have sought to commence proceedings in this Court and even to have sought leave to commence these proceedings on short notice. The Registry here does have a facility for parties to commence proceedings at short notice, and indeed, the mother's very application was commenced in such a way.
I am mindful of the fact that under section 117, the basic principal is, subject to sub-section (2) and certain other sections, that the parties in the proceedings should bear their own costs but sub-section (2) makes it clear that if the Court is of the opinion that there are circumstances to justify it in doing so, the Court may, subject to sub-section (2A) and the applicable rules of the Court, make an order as to costs.
I note that these proceedings relate to children, but there is no principle that costs are not ordered in children's matters, and indeed, in contravention proceedings, it is quite a common practice in the Federal Magistrates Court for parties to be the recipient of a costs order.
I do take into account the financial circumstances of each of the parties to the proceedings, and I accept the fact that the father is in a position where he is not able to engage in gainful employment.
I have not been informed whether either party is in receipt of assistance by way of a grant of legal aid, but it would appear to be unlikely. I am mindful of the fact that these proceedings were necessitated by the fact that a party retained the children in contravention, if you like, or in defiance of an order of the Court, and that is a matter that I consider to be of some relevance.
Whilst I accept the fact that the father is not a wealthy man, I am of the belief that there should be an order for costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 21 August 2003
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