R and Y
[2003] FMCAfam 32
•14 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & Y | [2003] FMCAfam 32 |
| FAMILY LAW – Contact by telephone – abusive and threatening behaviour by father – child’s best interests. |
Family Law Act 1975, ss.60B, 65E, 68F
AMS v AIF; AIF v AMS (1999)FLC¶92-852
| Applicant: | P R |
| Respondent: | W J Y |
| File No: | HBM2544 of 2001 |
| Delivered on: | 14 February 2003 |
| Delivered at: | Hobart |
| Hearing date: | 3 December 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Ms. Tilley |
| Solicitors for the Applicant: | Friend & Jones |
| Counsel for the Respondent: | Mr. Smith |
| Solicitors for the Respondent: | Trezise Lawyers |
ORDERS
That in addition to the contact provided for in the Orders of this Court of 30th May 2002 the Father P P R have telephone contact with the child B R-Y born 8th December 1998 each second Friday, being the Friday after he exercises contact in accordance with Order No. 4(b) of the said Orders of 30th May 2002.
That for the purposes of such telephone contact the Mother W J Y is to cause a reverse charge call to be made to a telephone number to be provided by the Father between 5.00 p.m. and 6.00 p.m. on each such Friday.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBM2544 of 2001
| P P R |
Applicant
And
| W J Y |
Respondent
REASONS FOR JUDGMENT
Background and application
This matter comes before me again because of a successful appeal on behalf of the Applicant in relation to orders that I made on 30th May 2002. Briefly, the successful appeal was that I had not dealt with the Applicant’s application for telephone contact and Kay J sitting as the Full Court found that I had erred in failing to determine that issue. As a consequence, that issue was referred back to me for determination.
The Application currently before the Court in relation to telephone contact is contained in the Applicant Father’s Amended Application filed in Court on 6th February 2002. He seeks telephone contact with the child B, born 8th December 1998 (“B”) on each Monday, Wednesday and Friday at 5.00 p.m. and that the telephone calls be initiated by him. The Respondent Mother opposes the making of any orders for telephone contact.
In relation to this narrow issue, the Mother filed an affidavit on 14th November 2002 and the Father filed an affidavit on 29th November 2002. Both parties were cross-examined.
The law
I set out the law in relation to children’s matters in my Judgment delivered 30th May 2002. It is not necessary to restate those principles. While it is clear, that in relation to parenting orders, the welfare of the particular child is the paramount consideration, it is also clear from AMS v AIF; AIF v AMS (1999) FLC ¶92-852 that it is not the only consideration.
Evidence and findings
The Mother’s opposition to telephone contact is stated in paragraph 5 of her affidavit. She says that the Father’s proposed telephone contact with the child would “severely restrict my movements, my activities with (B) and would expose me to further abuse and intimidation. The other issue is (B’s) age. He turns four next month. There is no way that I would be able to ensure that (B) would be prepared to speak to the Father in a meaningful way on any given occasion”. She goes on to say that it would be inappropriate to place her in the position of attempting to force the child to speak to his father for a number of reasons. They include:
a)It is very difficult to “force” such a young child to do anything;
b)It would be detrimental to the child’s relationship with her to put them both into that situation;
c)It may result in the child resenting the father for putting him in the situation where he had no choice.
The Mother also says in her affidavit that it is her position that the telephone contact sought by the Father would be unlikely to operate in a manner that would advance the child’s best interests, given the acrimonious relationship that exists between the Father and herself and the Father’s “hateful attitude” towards her. She says it would be more likely to lead to further conflict and proceedings between them.
The Father’s affidavit simply referred to many of the documents that are on the Court file and, in my opinion, did not advance his cause very much. However, he was cross-examined and it was possible for me to assess his motivation and attitude as a result of that cross-examination.
In her affidavit, the Mother details instances when the Father has been abusive to her or her new partner.
Some of her evidence relates to the conviction of the Father on 18th March 2002 for breaching a Restraint Order under the Justices Act (Tas). It is important to note that although that conviction was after the earlier hearing before me, the event upon which that conviction was based took place prior to that hearing. However, the evidence in relation to that was not before me in that earlier hearing because the Father had pleaded “not guilty” and the matter had not then been heard by the Court of Petty Sessions.
The Father changed his plea to “guilty” when the matter finally came before the Court of Petty Sessions on 18th March 2002. As a result, I have no hesitation in finding that he did say the things that were put to him in cross-examination, notwithstanding that he was somewhat reluctant to admit it. In this regard, it is clear to me that at a contact hand-over outside the Huonville Police Station, the Father said:
“I don’t give a fuck. I’m going to fuck you up the arse in Court and if you try to get me arrested again, then see what happens to your lovely family. How’s your psychiatrist …? By the time I finish with your family this week, they will all need psychiatrists.”
I do not accept the Father’s evidence that he pleaded guilty because he was advised to do so by the Police. It is clear that the Father’s guilty plea was more to do with guilt than with advice from the Police.
Clearly the words used by the Applicant were exceedingly offensive and were delivered in an aggressive and threatening fashion. The Father attempted to justify his actions on the basis of frustration arising out of protracted court proceedings. When the Mother’s counsel persisted, the Father admitted that he could have said those words “out of sheer frustration”.
However, the Father’s abusive conduct did not stop there.
On 31st October 2002 the Father attempted to telephone the Mother. She did not accept any of his calls so the Father telephoned her boyfriend. When he terminated a call, the Father telephoned again and left a recorded message which, after introducing himself, said as follows:
“You’re a gutless wimp just like your fucking stupid root. Now listen to me. (B’s) got a problem. His fucking stupid mother won’t talk to me. Now either you ring me back on (number provided) or you are going to be fucking involved in a big fucking way you stupid little cunt.”
The Mother’s boyfriend did not ring back so the Father sent him a faxed message. That message was hardly likely to endear himself to her boyfriend. He referred to the Mother’s “ability not to give a fuck about anybody but yourselves” and in the concluding paragraph he made a clear threat that if the Mother’s boyfriend did not telephone him that night he would “become very interested in your day-to-day life and Telspec”.
When he was cross-examined, the Father admitted that the words quoted above in paragraph 14 were exactly the words that he used in the recorded message for the Mother’s boyfriend and that he had forwarded the faxed message. When asked what “Telspec” was, he said in a facetious manner that it was a flower company and that he was very interested in flowers. He denied that it was threatening.
When it was suggested to him that it could have been some form of blackmail, the Father said that he was just very interested in his son’s stepfather’s business.
The Father was asked some questions in cross-examination by the Mother’s counsel about whether he had any counselling for anger management. He admitted to having some counselling but stated that the counselling was to come to terms with “the emotional abuse that my son is suffering at the hands of his mother, the frustration of not being able to talk to him, the frustration of two years and three months trying to get any decent contact with him, which is continuing and shall continue next year when he goes to school.”
It is clear from the Mother’s evidence that the child has had telephone contact with his father on occasions, generally at the Mother’s insistence. It appears to have been successful.
I accept from the Mother’s evidence that she has encouraged the child in relation to face-to-face contact and that if telephone contact is ordered, she would encourage that also.
The Mother has some reservations about the child using a mobile telephone. While there appears to be some general concern in the community about radiation from mobile telephones, it does seem that at this stage the research into possible harm caused by mobile telephones is inconclusive.
The Mother was cross-examined at some length about the child’s ability to use a telephone and how much she would encourage him.
I accept that the child has limited ability at this stage. However, the Mother is very encouraging and his ability to use a telephone will improve with time.
Discussion
The Father is seeking telephone contact on three days per week. However, in his evidence he appeared to accept that if I came to the conclusion he should have no telephone contact, he would accept that.
On the other hand, the Mother is opposed to telephone contact for the reasons that I have set out above. However, it is clear from her evidence that she has been encouraging in relation to face-to-face contact, and I accept that she will be encouraging in relation to telephone contact if I come to the conclusion that it is in the child’s best interests that I order it.
I have absolutely no doubt that if these two parents were able to deal with each other on a more civil basis, telephone contact would be in the child’s best interests.
Because section 65E of the Family Law Act 1975 requires me to regard the best interests of the child as the paramount consideration, I must consider the parents’ interests as secondary to that consideration. For example, the Father’s frustration and the Mother’s fears about abuse, must be secondary to what is in the child’s best interests.
Conclusions
The way in which the Father has treated the Mother, and also her boyfriend in his telephone and faxed communications is appalling. The fact that he may have been frustrated is no excuse at all. Clearly, he needs to learn some self-control.
Notwithstanding my adverse comments about the Father, it seems to me that the child could benefit from having telephone contact between his periods of face-to-face contact because it could act as a positive reinforcement for the child. However, to make it work, the Father will need to control his emotions and his temper much better than he has done in the past.
Clearly, the Father’s application for telephone contact on three days per week is excessive. In my view, the child should have telephone contact with his father on only one occasion between the alternate weekends when he has face-to-face contact. He is just four years old and it is unlikely that a child of that age will hold very long and detailed telephone conversations. However, fortnightly telephone contact will provide the reinforcement that I have referred to above.
In coming to this conclusion, I have taken into account the Mother’s evidence that she accepts that contact is good for the child and she will positively encourage telephone contact if it is ordered.
I now turn to the difficulties that telephone contact could impose. In view of his abuse of the Mother, I am very firmly of the view that the Father should not be able to telephone the Mother. That leaves only the option that the Mother should initiate the telephone calls.
In those circumstances it is my intention to order that the child have telephone contact with the Father once per fortnight on the Friday after he has had face-to face contact, such to be initiated by the Mother between the hours of 5.00 p.m. and 6.00 p.m. as a reverse charge call to the Father to a telephone number to be provided by the Father.
My reason for ordering a reverse charge call is that the Father was prepared to pay for three telephone calls per week, so he should not have an objection to paying for one reverse charge call per fortnight.
The telephone calls should be at any time between 5.00 p.m. and 6.00 p.m. because that will allow a reasonable time period for the mother to encourage a young child to make the telephone call at a time when the child may be tired and/or hungry. If the Father desires to have telephone contact as much as he professes, he will make himself available for the whole of that hour each fortnight to receive the calls.
Having considered the provisions of sections 60B, 65E and 68F of the Family Law Act 1975, I am of the view that the orders that I make in this matter are in the best interests of the child.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 14th February 2003
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