Rio and McGrath
[2010] FMCAfam 559
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RIO & MCGRATH | [2010] FMCAfam 559 |
| FAMILY LAW – Children – interim orders – telephone communication with children – children aged 9 and almost 7 years – allegations of family violence – apprehended violence order in force – where father claims to have lodged an appeal – where father has only been able to speak to the children on the telephone. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC |
| Applicant: | MS RIO |
| Respondent: | MR MCGRATH |
| File Number: | SYC 504 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 May 2010 |
| Date of Last Submission: | 12 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Kinghan & Associates |
| Counsel for the Respondent: | Mr Potkonyak |
| Solicitors for the Respondent: | Leigh Johnson Lawyers |
| Solicitor for the ICL: | Ms Adams |
| Solicitors for the ICL: | Hamish Cumming Family Lawyers |
ORDERS
UNTIL FURTHER ORDER the order made on 30 March 2010 is varied so as to provide that the Father is to have telephone conversation with the children, [X], born [in] 2001, and [Y], born [in] 2003, to take place each Wednesday and Sunday at 8:30pm for a period not to exceed 15 minutes on each occasion.
The Application is adjourned to Thursday 17 June 2010 at 10:00am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Rio & McGrath is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 504 of 2010
| MS RIO |
Applicant
And
| MR MCGRATH |
Respondent
REASONS FOR JUDGMENT
This is an interim hearing relating to orders sought by the parties concerning the Father’s telephone communication with the children [X], who was born [in] 2001, and [Y], who was born [in] 2003.
The Father, who is the Respondent to the original application, seeks orders in addition that the children spend time with him in the first week of each fortnight, from after school on Friday until before school on Monday. He also seeks orders that they should spend time with him from after school on Wednesday until 6:00pm on Friday on the other week of the fortnight. In addition, he seeks orders that they should spend the first half of each school holiday period with them.
As for telephone contact, he considers that it would be appropriate for there to be unrestricted but reasonable telephone contact by each parents with the children while the children are in the care of the other parent, and that after the finalisation of apprehended violence proceedings against the Father, those orders be reviewed and re-determined.
By comparison, or perhaps by sharp contrast, the Mother submits that the orders made on an interim basis on 30th March 2010 be varied. Those orders provided that the Father was to have contact with the children by telephone on two occasions each week, being Wednesday and Friday nights at 8:00pm. It is the Mother’s view that the two telephone conversations are too close together, and that Wednesdays and Sundays would be more appropriate, and that the length of each call should be limited to 15 minutes. She further submits that they should be at 8:30pm rather than 8:00pm, due to the clash with the children’s dinnertime. The Mother is of the view that the current telephone calls are onerous to the children, lasting anywhere between 30 and 45 minutes.
There are a number of matters that are concerning about this particular case. It is a matter of concern that the Father has not spent time with the children since January of this year. The Father claims that the Mother makes false accusations against him, and that indeed she has either made false claims or exaggerated her claims in respect of apprehended violence proceedings before the Local Court, and that these proceedings are in fact being perpetrated for an ulterior motive, that is, to assist her in establishing her claims in proceedings before this Court, and not for the bona fide reasons of seeking protection for herself and her children from violence or threats of violence or abuse from the Father.
It is the Father’s view that the children and he have a normal, loving relationship, although he admits that he slapped the child [X] once, but only once, and that he did not slap her hard. He claims that this was the only time that he had physically punished [X], and that he has never physically punished the younger child, [Y].
There is evidence before the Court which would indicate that each parent has had difficulties with matters such as depression, and indeed the Father was diagnosed in the year 2005 with post-traumatic stress disorder, although the reasons for that diagnosis have not been satisfactorily explained in the report of Dr O, which has been submitted in evidence. That report, I note, was dated 11th April 2005, and it is now over five years old.
A number of the documents tendered in support of the Mother’s case do in fact have some age to them. There is a COPS printout relating to an event that is alleged to have occurred between the Father and another person on 24th December 2008. More recently, however, there has been a patient health summary prepared by the Applicant’s general medical practitioner, Dr J, which indicates that he has had a past history of work-related injuries, allergic rhinitis, back pain, bronchitis and skin check, that he has an adverse reaction to penicillin, and that his medications include Clonazepam, Imipramine, Meloxicam, Panadol Osteo, which is for knee pain, Stilnox, which is a sleeping tablet, and Temazepam, which is also a sleeping tablet.
Clearly, there has been a diagnosis of depression on the part of the Father, and it would hardly be surprising that the Father would be showing symptoms of depression at this stage, bearing in mind the difficulties that he is facing in respect of his wife and the children.
The Mother has also had some depressive history, and indeed made an attempt on her life in 2004, underwent counselling for a period of two years, and has returned to work. It is clear that the relationship between the parties is very much at arm’s length, and it is unlikely that that relationship is going to improve at any time in the near future.
There is an apprehended violence order that was made on a final basis by [omitted] Local Court on 12th November 2009. It is in force for a period of two years. In addition to the standard orders, there are additional orders that the defendant, that is the Respondent Father:
Must not enter the premises at which the protected persons may from time to time reside or work, and that the defendant must not approach the school or other premises at which the protected persons may from time to time attend for the purpose of education or child care or other specified premises
Further:
That the defendant must not destroy or deliberately damage or interfere with the property of the protected persons.
And further:
That the Court extend the operation of the orders to include the following persons with whom the protected person has a domestic relationship.
The persons with whom the protected person has a domestic relationship are the two children, the two little girls.
The situation is, as I am told, that due to some oversight the Father did not attend the Local Court at the time when the Local Court made the interim orders final in December 2009. He has since sought to appeal against that order, or have that order revoked. And indeed, I am informed that an application to the Court was not reached recently, and has gone over until 2nd December 2010. That is a considerable time away. Indeed, it is likely that this Court will be able to provide final hearing dates in respect of this matter in about that same month.
It has been submitted from the bar table that the date was given so far away because the Father had indicated that he proposed a trip to Iran, and that an earlier date therefore would not be of assistance. It is hard to make a great deal of that, although one would have thought that with an apprehended violence order over one’s head that one would be making strenuous efforts to bring the matter back to Court to have it revoked or varied, if that were the case.
That, then, is the situation. The Mother, as I have said, is concerned that the Father is spending far too long on the telephone with the children; that is somewhat onerous to them. Indeed, bearing in mind the children’s’ young ages, it would seem that the time spent, 30 minutes or 45 minutes, seems to be a long period of time, and I am satisfied that bearing in mind their ages that a period of 15 minutes may be appropriate. And it would seem that there would be some benefit in spacing the phone calls out, and that rather than Wednesday and Friday it should be Wednesday and Sunday. Changing the time by half an hour does not seem to be particularly onerous.
It is not surprising, however, that the Father is spending such an amount of time on the telephone with the children if that in fact is the case. He is showing signs of depression, and if this is the only communication that he has with his children – which is the case – it is hardly surprising that he wishes to spend as much time with them on the telephone as possible.
However, there are a number of matters that cause concern and do not necessarily assist the Father. His affidavit, dated 18th March 2010, and filed at the Court on that day, refers at paragraphs 9 and 10 to the attendance of his children at the [B] School. In his affidavit, he says at paragraph 9:
[9]Both my children attend [B] School. I have taken an interest in their schooling, but since the end of January 2010, when the Applicant Wife without warning that night following contact and reported me to the police, I have reluctantly refrained from going to see my children at their school.
[10]I have not gone to the school since separation because I am concerned that if I do so, the Applicant Wife might come up with an allegation about that against me. I have been tempted to do this, as I wish to attend the school functions about which I’ve had no information since separation, especially when my daughters are involved. Since separation in May 2009, I have not gone to the school as I no longer pick them up from school since that time, as contact has been controlled by the Applicant. I also do not wish to embarrass my children in case the Applicant challenged my rights to see my children if I were to go there. I do not wish any conflict to involve the children or to embarrass the children in any way.
That said, noting the date of that affidavit – namely, 18th March 2010 – it is a matter of some concern that the following day – 19th March 2010 according to the COPS printout that has been tendered in evidence – that the Father attended the [B] School where his children attend school. The principal was concerned and contacted the police. I note from the apprehended violence order of 29th November, which on the information before this Court is still in force, that additional order 9 said:
The defendant must not approach the school or other premises at which the protected persons may from time to time attend for the purposes of education or child care or other specified premises.
Thus, it is a matter of concern that the Father did attend the school when it appears that he was forbidden from doing so by an apprehended violence order in force, and he did so on the very day after his affidavit, when he said he had not done so and gave reasons as to why he did not intend to do so
It is a matter of concern that the Independent Children’s Lawyer has referred to the fact that scant information has been available from the Father’s side but she has told the Court that she has met with the children, and they’ve expressed this reluctance and they have become anxious when told that it would not be unlikely that they would be spending some time with the Father.
The concern has been raised by the Independent Children’s Lawyer, and in the circumstances I am of the view that it is a reasonable concern, that at this stage at least there should be supervised contact. Mention has been made of the Keeping Contact program operated by Unifam, which is indeed a program well and favourably known to this Court.
This is a matter that concerns me, because I get back to the principles set out in the Family Law Act. Section 60CA of the Act makes it clear that:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out:
How a Court determines what is in a child’s best interests.
Sub-section (2) of that section says:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Now, those are the primary considerations by which the Court is bound, and there are concerns about both of them. It is fair to say that it is a matter of considerable concern that the children are not having a meaningful relationship with their father. I accept the fact that they have not spent time with him for several months, and that all that has happened is that they have been speaking to him on the telephone. If that situation remains until December there is a serious concern that the children’s relationship with the Father will be severely, if not irreparably, damaged. The Father would be in danger of becoming a stranger to the children if they were not able to see him for that period of time, and I am not satisfied, on the evidence before me, that the Court should allow a situation to proceed for months on end without further information that the children did not even see their father; they’ve had nothing but telephone contact.
The Father has expressed serious concerns about supervised time with the children, but the advantage of supervised time is that the children and the Father see each other, speak to each other, whether or not it is a tense situation. If the children feel no concerns about their personal safety because another responsible adult is present, my view is that they would be likely to relax, and the opportunity would arise for the children and their father to rebuild the relationship, which at the moment is in a parlous state indeed.
So my view is that a considerable amount needs to be done to look at a program such as the Keeping Contact program, or for the Father to look seriously through his legal advisers at providing for an independent adult who would be able to supervise time with the children, and with whom the children would feel comfortable so they could spend this time with their father.
The Independent Children’s Lawyer has also suggested that for the purpose of a report for the final proceedings that a psychiatrist skilled and experienced in these matters should be tasked as an independent expert to provide a report. There are a number of psychiatrists well known to this Court who provide such reports. Dr W is one, as is Dr Q, as is Dr M, and Dr R; four names that spring to mind. And it may well be that the parties could agree on one of those people to provide a report, which I think would be of considerable benefit to the Court.
Now, the other matter that I need to consider is that there is a need to:
… protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am told from the bar table that the apprehended violence order which was annexed to the Mother’s application, which is the order of 12th November 2009, is not the current order. I note that that order was annexed to an initiating application filed on 29th January. However, it is the only evidence that the Court has.
Now, as to what the status of the apprehended violence order is, and what Court has issued it, and what the terms of it are, that evidence is readily available from the Local Court that makes the order, and it is not a difficult task whatsoever for parties to obtain a sealed copy of the order from the Court, and that order can either be tendered in evidence, or it could be annexed to an affidavit, and filed at the Court, and should be done at the earliest opportunity. But the concerns that I have is that the Court is not being given all of the information that it should be, and that two things are going to suffer. One of them will be the relationship of the children and their father, but the other one is the administration of justice and I have serious concerns about both.
This matter is to be adjourned for a period of approximately one month so that arrangements can be made for a program of supervised time between the children and their father to be arranged, so that the Father’s new legal advisors can apply to the Court for copies of all of the orders that have been made to date, which I understand that they do not have, and so that accurate, up-to-date information can be filed at the Court, setting out the status of whatever apprehended violence order is currently in force affecting these parties, and until that information is available this Court is going to be operating blindfolded, which is totally unacceptable.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 1 June 2010
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